Striking again — court defeat over legal aid cuts could see barristers back on picket line

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By Judge John Hack on

Judges back government plans for massive cuts in number of legal aid law firms, reigniting fears that law students wanting a career in crime … will have to rob banks


The prospect looms again of barristers donning donkey jackets and warming hands over braziers in the shadow of the Houses of Parliament — as the Court of Appeal this morning shot down a judicial review of government plans to slash legal aid contracts for law firms.

In the aftermath of this morning’s ruling, the Criminal Bar Association (CBA) announced it would immediately consult its members on future potential action.

But striking and marching could well not be enough to convince law students and recently qualified lawyers that anything resembling healthy career prospects exists in the legal aid field.

Indeed, the issue of whether in five years’ time there will even be enough lawyers at the criminal bar to form a meaningful picket line is becoming ever more relevant.

However, for the time being, lawyers appear motivated to fight through the tactic of more public protests — arguably because they are running out of options fast.

“Firms are already merging or going out of business,” pointed out Catherine Baksi, a journalist and prominent Twitter commentator specialising in the legal aid sector, adding:

“Most of those that don’t get one of the 527 police station contracts won’t be able to survive on own-client work alone for long.”

Baksi forecast to Legal Cheek today that “if the scheme goes ahead, the result will be the formation of cartels that will ultimately put power into the hands of the remaining giant suppliers. The model will be a disaster for the bar as well. Barristers will see instructions diminish as solicitors’ firms — seeking to profit from economies of scale — hold on to work and give it to their own in-house advocates.”

The CBA and several criminal law specialist and legal aid solicitor groups last year staged a round of go-slows and other action. Barristers were much more eager to describe the protests as strikes, while solicitors danced round the issue, not wanting to be seen to be breaching their contractual duties to the Legal Aid Agency.

Barristers also launched a highly effective “no returns” policy in relation to briefs. And the combined result of the various protest measures nearly brought the criminal courts to a halt.

But the lawyer groups then switched tactics, launching a series of judicial reviews of the Ministry of Justice’s decision-making processes behind the legal aid reforms.

Now, in relation to this crucial reform of how many law firms will be authorised to take publicly funded criminal cases, the judicial review route appears close to exhaustion.

The CBA issued a statement earlier today saying:

“The introduction of two tier contracts, with the likely loss of over 1,000 firms, will cause irreversible damage to our criminal justice system. The wider ramifications of this damage should be a matter of concern for every sector of society. We await the decision as to whether the claimants intend to seek to petition the Supreme Court to reverse the decision of the Court of Appeal.”

Those front line claimants in this — one of several judicial reviews the government has faced in relation to its package of legal aid reforms — were the Criminal Law Solicitors Association, the London Criminal Courts Solicitors Association (LCCSA) and the Law Society of England and Wales.

Commenting on the ruling, LCCSA president Jonathan Black, said bluntly:

“We’re gutted. It’s another terrible blow for our criminal justice system and access to justice. Whilst the appeal court has found the devastating carve-up of solicitor representation is technically legal, we, and many others believe it’s immoral. We’ll do everything we can to continue the fight.”

Black, a partner at London Gray’s Inn Road firm BSB Solicitors, continued:

“We’re staring into an abyss of rough justice. The message sent by these swingeing ideological cuts and policies, coming on top of many other draconian measures, is simple. Don’t be poor, don’t be a victim of domestic abuse and don’t be accused of a crime. Because woe betide you, the state isn’t interested in providing you with the protection of the law. Ministerial assurances that legal aid will be there for anyone who needs it ring hollow.”

Whether the legal profession can remain unified in its last ditch battle with the Ministry of Justice also remains an issue.

During the last round of protests more than a year ago, the Law Society came to blows with criminal law solicitors, with the latter maintaining that Chancery Lane had run scared of offending Justice Secretary Chris Grayling. That row ended with the society’s leadership losing a vote of confidence at a Law Society special general meeting.

Then a year ago the CBA infuriated many solicitors and junior barristers by apparently cutting a deal with the ministry to postpone cuts to fees paid to advocates in Crown Court cases under the advocates graduated fee scheme.