Barristers have voted to end strike action the Criminal Bar Association (CBA) - an organisation representing criminal barristers in England and Wales - has said. It comes after the Liz Truss administration made fresh proposals in the row over pay.
The CBA agreed to ballot members again after talks with new Justice Secretary Brandon Lewis in which he decided to propose further reforms to government-set fees for legal aid advocacy work, according to the Ministry of Justice (MoJ).
Criminal barristers had previously spoken about a “crisis of national proportions” which has brought the justice system “almost to a standstill”. The all-out strike officially began on 5 September and came after members of the CBA had been walking out on alternate weeks.
But what was the legal aid row about and how have the walkouts affected the court system? Here’s what you need to know.
What is the legal aid funding dispute about?
The row centred around concerns over funding for criminal legal aid fees. Legal aid is granted to cover the costs or partial costs of accused persons who can’t otherwise afford it. Barristers claim for legal aid representation through the Advocates Graduated Fees Scheme (AGFS), while solicitors do so through the Litigators Graduated Fee Scheme.
During the past 10 years the number of lawyers working in the criminal justice system has decreased with many saying they cannot make a living anymore. An independent review of the system by Sir Christopher Bellamy had told ministers they needed to increase the AGFS funding by at least 15% without delay, it also said an Independent criminal legal aid Advisory Board should be set up.
The increase to funding was proposed to come into force later this year - but it would not cover the in excess of 58,000 cases that form part of the court backlog. Criminal barristers were due to receive a 15% fee rise from the end of September, meaning they would earn £7,000 more per year.
But there was anger that the proposed pay rise had not been made effective immediately and would only apply to new cases, not those already sitting in the backlog waiting to be dealt with by courts. The Criminal Bar Association wanted a 25% increase to the AGFS.
In a report detailing its response to the proposals, the CBA said they were “insufficient” to meet the crisis facing the criminal bar and justice system. It stated: “The CBA considers it unacceptable that the Criminal Bar will be expected to continue working – including the types of hours normally remunerated as “overtime” or “shift work” in other professions - to clear this entire backlog at set rates fixed many years ago and which are now at wholly unsustainable levels.”
The CBA response stated the review did not take into account the “substantial drop in average fee earnings” from criminal legal aid of 23% between 2019/20 and 2020/21. It also said it failed to look at the drop in the numbers of criminal barristers undertaking criminal legal aid work by 10% over the same period.
The report said: “The Criminal Bar Association maintains, as it stated in February 2022, that a minimum 25% increase in AGFS fees is needed to fund criminal legal aid in order to arrest and reverse the continuing recruitment and retention crisis at the criminal bar.”
How did government end barristers strike 2022?
A new offer made by Brandon Lewis after talks with the CBA represented “further investment of £54 million in the criminal bar and solicitors”, the MoJ said. It said a planned 15% fee increase for criminal barristers would now apply to the vast majority of cases currently in the Crown Court.
This will also apply to fee increases for solicitors, the MoJ says this is part of a wider package of proposals announced by the government to help tackle the court backlog. In a statement it said measures designed to reduce delays for victims, such as increasing early resolution of cases, reducing the number of ineffective trials and progressing cases between magistrates’ courts and the Crown Court, will be explored.
Justice Secretary Brandon Lewis said: “I greatly value the criminal bar and solicitors and the work they do every day in our Crown and Magistrates Courts. They are crucial to reducing the backlog. My priority in these discussions has been to ensure that victims aren’t forced to wait longer to see justice done.
“These are generous proposals, and I would strongly urge all members of the Criminal Bar Association to consider carefully, end their strike and work with me to deliver better outcomes for victims of crime.”
The Ministry of Justice said it would also make £3 million of funding available for case preparation like written work and special preparation. A further £4 million will be allocated to defence barristers involved in pre-recorded cross-examinations, which are used to reduce the trauma of a trial for vulnerable victims and witnesses.
It has also proposed a £5 million uplift per year for fees in the youth court, from the 2024/25 financial year, expected to benefit both solicitors and some junior barristers.
After the new proposals had come through, the CBA put them to members. Some 1,488 voted in favour of ending the strike action as a result, with 1,117 voting to continue striking.
The result saw CBA chair Kirsty Brimelow KC say she hoped “for a new relationship” with the government. But she added that her members had been “shabbily treated” during talks. She said: “The offer from the Government is an overdue start. Its acceptance by barristers is on the basis that it is implemented. Otherwise, the CBA will ballot again to lift the suspension of action.
“Goodwill of criminal barristers is exhausted. The long-term reform does depend on continuing, constructive engagement with Government. Otherwise, our members remain ready to act again.”
Barristers will accept new instructions on cases from 6pm on Monday (10 October) and will be back in court from Tuesday (11 October).
How has the barristers strike 2022 affected the courts?
The industrial action meant cases at which barristers were required had to be postponed, including crown court trials. According to MoJ figures, more than 6,000 court hearings have been disrupted a result of the dispute over conditions and Government-set fees for legal aid advocacy work.
Data released under freedom of information laws show that during the first 19 days of industrial action – between 27 June and 5 August – there were 6,235 court cases disrupted, including 1,415 trials, across England and Wales.
Had the strikes continued beyond November 2022, the High Court ruled that some defendants would have to be released from custody, as the industrial action did not represent a good enough reason to keep them on remand.
How much do barristers earn?
Average earnings can very quite substantially depending on the area of law they practice. According to chambersstudent.co.uk a junior barrister doing work supported by legal aid could earn less than £20,000 a year. Illustrating how different pay rates can be, website studyinglaw.co.uk states a typical barrister can earn anything between £25,000 to £300,000 a year.
The CBA claimed many of its members are being forced to leave the criminal bar after a fall in incomes of nearly 30% over the past two decades. It says specialist criminal barristers make an average annual income after expenses of £12,200 in the first three years of practice.
What was said about the barristers strike 2022?
During the dispute, a spokesperson at BPP University Law School in Leeds warned tit was not only impacting lawyers currently in the profession but also those at junior levels or aspiring to become lawyers.
“The strike action we are seeing across the country is a result of the working conditions that barristers have had to endure for a number of years, including pay cuts that have seen their income decrease by nearly a third (28%) since 200,” they said.
“Those that have chosen to take part in the walk-outs will have not come to the decision lightly, as they will cause devastating delays to cases that are already behind due to the covid-19 pandemic, meaning that victims and those accused will have to wait even longer for justice to be served. Not only that, but huge amounts of money are likely to be wasted on courtrooms that are sitting unused while the strike action is in force.
“While some may think that the strike action is unnecessary or unjustified because lawyers are often thought to have well-paid salaries, the reality is that this actually only applies to a fortunate few that are high up in the pay scale.”