Barristers take part in industrial action: causes, context and the crisis in our criminal courts

by Laurene Veale

Criminal defence barristers are currently participating in industrial action for improved working conditions and an increase in pay in legally aided cases. This is the second time in history that UK barristers take part in industrial action, the first time being a one-day walk-out in 2014 over legal aid cuts. Here are some key facts relating to this historic action.

The background

In June of this year, 81.5% of members of the Criminal Bar Association (CBA) voted in favour of industrial action, which started on 27 June. A previous ballot earlier this year had seen 94% of members vote in favour of a “no returns” action, where barristers refuse to take on the case of another barrister who has become unavailable.

Criminal barristers are asking for an immediate increase of 25% in their fees in the Crown Court, payment for all written work (currently unpaid), and an independent pay review body to adjust fees periodically, among other things. Their demands do not cover Magistrates’ court work.

An independent review of criminal legal aid commissioned by the Government in 2021 recommended an increase of funding for criminal legal aid of “at least 15% above present levels”, “as soon as practicable”, with “no scope for further delay”. It concluded that this was “the minimum necessary as the first step in nursing the system of criminal legal aid back to health after years of neglect”.

The Bar has seen the number of barristers specialising in criminal law decrease year on year because of low pay and difficult working conditions. According to the CBA, the number of barristers specialising in criminal law has shrunk by 25% in the last 5 years, and the speed at which criminal barristers leave legally aided work has increased in the last year. A Bar Council survey in October 2021 found that 25% of barristers at the criminal Bar intend on leaving.

A loss of junior barristers specialising in criminal law not only exacerbates the difficulties of the criminal justice process but may also affect in the long term the number of judges with experience at the criminal Bar. This kind of experience among judges contributes to the excellent reputation of our judiciary globally.

A threat to diversity

Low pay and long hours at the criminal Bar impedes the diversity of this section of our profession. Low pay disproportionally affects women, people with disabilities and racialised people, who are more likely to have to cope with additional demands on their time and income, such as debt, dependants, unpaid domestic work and limitations on their ability to work long hours.

The fact that specialising in criminal law presents increasingly unattractive financial prospects also affects the socio-economic diversity of the criminal Bar, as those barristers without savings or a financial support network have less resilience to cope with the very low income expected in the first few years of practice. The CBA reports that in their first 3 years of practice, criminal barristers earn a median income of £12,200, significantly less than minimum wage. The pandemic further reduced the income of many criminal barristers due to loss of work, which was not compensated by the Government.

The Government initially stated that it could not apply a retrospective increase in fees but after a pre-action letter by the CBA, it has conceded that a retrospective increase is legally possible.

The neglect of the criminal justice system has consequences for all.

There is a court backlog in the criminal justice system of approximately 60,000 cases. This means defendants can wait several years to have their trial heard. From October to December 2021, 280 trials were adjourned due to shortages of barristers. The crisis in the criminal justice system is unfair on all court users – from victims of crimes and those accused of crimes to barristers and court staff. A functioning criminal justice system is essential to a healthy democratic society.