Criminal barristers in England and Wales have been asked if proposals to inject government money into the criminal justice system will be enough to deter lawyers from industrial action.
The Criminal Bar Association has asked its 2,500 members in a survey that closes on Monday if recommendations put forward in a government-commissioned review by former judge Sir Christopher Bellamy could dissuade them from potential strikes.
Bellamy’s long-awaited report, which was published in mid-December, concluded that a minimum of £135m a year is needed immediately from the Treasury to increase fees and stop lawyers exiting the profession.
The unhappiness of criminal barristers comes as the government attempts to cut an unprecedented backlog of outstanding cases at crown courts in England and Wales, which has built up during the Covid-19 pandemic.
Government efforts to reduce the backlog have been stymied by an exodus of barristers, who have left because of cuts in legal aid rates over the past decade and extended workloads exacerbated by the crisis.
The number of delayed crown court cases has risen by nearly 19,000 since the start of the pandemic. At the end of November 2021, this figure stood at 58,728 cases, down slightly from 60,692 in June 2021. Some trials have been pushed back to 2023 or 2024.
Jo Sidhu, chair of the Criminal Bar Association, has urged the government to expedite its response to the Bellamy review. A response is expected in March 2022, but Sidhu has said it would be “simply unacceptable” to delay any settlement over fees until the middle of the year.
“Over successive years we have been haemorrhaging people from this area and that’s got to stop,” he told fellow barristers on a Zoom call in late December.
“People are thoroughly fed up, they feel weary, they feel frustrated and they feel angry. They feel all those things because it’s been nearly 24 years since we have seen any real increase in our incomes.”
Sidhu said: “The mood of the criminal bar is as low as it’s ever been.” “We are not going into a polite negotiation with tea and biscuits,” he added.
Barristers in England and Wales have taken industrial action before. In early 2014, advocates held their first national walk outs for 400 years in protest at cuts to legal aid pay rates. This led to the government backing down on its proposals.
In 2019, potential walk outs by barristers were averted after ministers agreed to increase fees for prosecutors.
Nigel Lithman QC, a barrister and retired judge who led the barrister walk out in 2014 when he was head of the Criminal Bar Association, said he believed further action was “inevitable” unless more money was injected into the criminal justice system.
In an interview with the Financial Times, Lithman said that criminal advocates were “just looking for a wage whereby they can properly function and their diligence will be rewarded”.
“I’m not advocating strike action,” Lithman said. “What I am advocating is that the government sees sense and thinks this is an important but neglected responsibility of the Treasury.”
Newly qualified criminal barristers earn as little as £12,000 a year, compared with young barristers specialising in civil law who can earn upwards of £70,000, according to Lithman, who is the author of Nothing Like the Truth, an account of his time as a judge and barrister.
The Bar Council’s submission to the government’s 2021 Spending Review stated that self-employed criminal barristers in their first three years of practice took home an average pre-tax profit of £12,200 in 2019-20.
The submission added that criminal barristers with several years experience took home a median pre-tax profit of £58,300 in 2019-20, but as self-employed professionals must cover their own pensions, sick pay and national insurance as well as professional insurance and chambers office rent.
The median annual pay for full-time UK employees was £31,285 for the year ended April 2021, according to the Office for National Statistics.
The Ministry of Justice gave £477m to the criminal justice system in the October spending review, following an injection of £51m in additional criminal legal aid funding in September 2020.
Justice minister Dominic Raab told the parliamentary justice committee of MPs in November that money allocated in the spending review would help reduce the backlog to 53,000 by March 2025, a decrease of just under 6,000 from the current level.
However, he added that the government was looking at other measures to address the delays. It invested £250m to support the courts recovery last year and would keep open 32 temporary Nightingale courts — additional venues set up during the pandemic — until March 2022.
The government said: “Dedicated staff and professionals kept the justice system moving during the pandemic and our current data does not indicate that barrister numbers are affecting its recovery.”
“Why is it that in a democracy a government is not prepared to fund an important limb of it — which is the criminal justice system — properly? The public no longer thinks of the criminal advocate as a wealthy person who is a fat cat,” Lithman said.
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