Why Are Barristers on Strike?

Mass walkouts have compounded the strain already felt by the justice system as courts become overburdened with cases and access to justice grows increasingly unobtainable for many. What has prompted the strike action, what consequences has it had for the legal sector so far, and how can its roots be seen in the UK’s ongoing legal aid crisis?

The Background

It is broadly agreed that legal aid services in the UK have been in decline for a significant amount of time. Following the implementation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 – a statute aimed at reducing then record levels of per capita spending on legal aid – the sector has been severely affected by austerity measures curtailing the availability and provision of legal aid in many cases where it previously applied. This has contributed to a legal aid crisis that barristers say has brought the justice system “almost to a standstill”.

With less funding available, lawyers handling criminal cases have faced far lower levels of remuneration, with Criminal Bar Association (CBA) chair Jo Sidhu finding that junior barristers in the first three years of their practice are currently earning just £12,000 per year, or £6.25 per hour. The lack of sufficient legal aid fees has been cited by large numbers of lawyers who have quit publicly funded criminal work, which has led in turn to the formation of so-called ‘legal aid deserts’ where access to key areas of law is unavailable for large swathes of the population. There is also a significant backlog of cases across the country, with upwards of 358,000 still outstanding at magistrates’ courts and upwards of 58,000 at crown courts, with fears that the latter number may grow to as much as 70,000 by the end of summer.

These concerns were investigated by Sir Christopher Bellamy QC’s Independent Review of Criminal Legal Aid. The review recommended, among other measures, an increase in legal aid fees across most schemes. In response, the government proposed a fee increase of 9% for criminal solicitors from September onwards; 40% lower than the minimum level recommended by the review.

Junior barristers in the first three years of their practice are currently earning just £12,000 per year, or £6.25 per hour.

The CBA warned that this funding increase would be insufficient following severe cuts over the past decade – particularly as it would not apply to any of the 58,271 cases comprising those already outstanding. “The existing rates will remain on all of the cases stuck on this record backlog until they conclude, which may be many years away,” a spokesperson for the organisation said.

What is Happening?

In June, 80% of the CBA’s 2,000 members voted to strike over the government’s proposed reform package. Picket lines were established at crown courts across England and Wales, including those in Birmingham, Bristol, Cardiff, Leeds, Manchester and the Old Bailey in London. The barristers are seeking a fee rise of 25% to begin to compensate for years of reductions, rather than the minimum amount decided upon in the package.

The strike action was originally billed to last for four weeks, beginning on Monday 27 and Tuesday 28 June and escalating by one day each week, culminating in a five-day strike between Monday 18 and Friday 22 July. However, the strikes are still ongoing as of 28 July with no resolution having been reached. The action is set to continue for the remainder of the week, then on a week-on, week-off basis until an accord is reached.

The Ministry of Justice has hit out against the action. “The current strike is now forcing victims to wait for justice, despite a generous £7,000 pay rise for the typical criminal barrister,” a spokesperson said. “We encourage barristers to put victims first and prevent any further delays.”

Labour Climate in the UK

The barristers’ strikes form part of a growing pattern of industrial action across the UK. Most notably, they have coincided with strike actions by UK rail workers that have caused widespread travel disruption and led to the sacking of shadow transport secretary Sam Tarry for joining striking workers on the picket line. Speculation suggests that unions throughout the country are contemplating a general strike in response to ministers’ threats to curb industrial action, which would likely boost the striking barristers’ profile further if undertaken.

There are also ongoing reports of similar dissatisfaction among teachers and NHS staff, though this has yet to translate into an active strike. Likewise, The Law Society Gazette has suggested that criminal defence solicitors might also follow the barristers’ example by staging UK-wide walkouts over legal aid funding, but this also remains strictly speculative.

Effects to Date

As might be expected, the strike action has had a profound effect on the UK courts. More than 1,000 active cases have been affected, while the nationwide backlog continues to grow. However, there is still no clear end in sight as neither ministers nor barristers have not indicated a willingness to concede on legal aid fee levels.

Meanwhile, both sides are growing more entrenched in their positions. Tensions rose in early July as it emerged that the judiciary had been collecting data from court staff about barristers who have failed to attend hearings for consideration of disciplinary action by the regulator, prompting a complaint to the Information Commissioner’s Office from the CBA accusing justice ministers of ‘unlawful processing’ of striking barristers’ personal details. The action was subsequently reversed and all collected data deleted, according to a letter from senior judge Sir Charles Haddon-Cave seeking to reassure CBA leaders.

As the strikes proceed into August we will continue to observe the progress of the striking barristers, as well as the impact that victims of criminal acts will feel from both the strikes and the legal aid crisis that underpins them. Barrister Sean Summerfield, commenting on the case backlog, succinctly summarised the state of the UK’s justice system in 2022: “It’s never been a better time to be a criminal, and a worse time to be a victim.”