The Judge Rules: criminal barristers are playing into the government’s hands

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By Judge John Hack on

Current lawyer strike is likely to be short lived and ultimately lead to what the Ministry of Justice wants


In the 30th anniversary year of the traumatic miners’ strike, crime specialist lawyers are doing their best to invoke a by-gone age of industrial action.

First solicitors began working — or not working — to rule by refusing to take instructions for state-funded clients. And barristers, somewhat belatedly, voted to support that action by declining returned briefs or fresh instructions.

But are these strikers — arguably noble in their bid to halt the juggernaut of legal aid fee cuts — destined for the same fate as Arthur Scargill’s soot-covered mob?

Yes. Indeed, by striking on the back of a 55%-45% vote split, the barristers are playing straight into the government’s hands.

Lord Chancellor and Justice Secretary Michael Gove is prepared to take a little pain now. Yes, the action is making an impact, as was pointed out yesterday by Pump Court Chambers senior junior Matthew Scott.

Scott — in his guise as Barrister Blogger — tweeted a long list of courts that were on the verge of grinding to a halt as a result of picketing men and women in horsehair.

And the strike is having an impact on those venues still hearing cases, as a source at Liverpool Crown Court told Legal Cheek within the last few days.

Our spy in the northwest witnessed a frustrated judge allegedly haranguing an unrepresented defendant, who was struggling to enter a plea. The defendant told the bench he had asked for a solicitor three times. He also kept repeating “I don’t understand” when charges were read and during bail applications.

According to our source, the hapless defendant:

Wasn’t given any explanations as to what was happening and the judge kept saying ‘it doesn’t matter’. He was forced to enter a plea despite being unaware of what was happening, he didn’t even understand what he was being charged with and kept saying ‘I don’t understand….what does that mean…’

Even a non-legally qualified Lord Chancellor must recognise that incident paints a picture well removed from justice. But a little — or even significant — short-term pain for Gove could be worth the long-term gain in his eyes.

What is the Ministry of Justice’s ultimate goal? To have fewer providers of legally aided criminal law advice and advocacy. The government wants to streamline legal aid provision by creating a system of large law firms — complete with high court advocacy departments — that are capable of providing a cheaper one-stop shop service.

So far the MoJ has played softball with barristers relative to the hardball regime of cuts being imposed on law firms. Gove ostentatiously announced that proposed cuts to Crown Court advocacy fees — mooted first by his predecessor, Chris Grayling — would be put on the backburner.

But barristers should not be deceived by that ruse (and for the most part they weren’t). Gove knows that in the current structure, barristers still do most criminal court advocacy — at least at the higher levels — and therefore a concerted and unified withdrawal of labour on their part could throw a big spanner in the system’s works.

However, Gove will be cheered by a result in which 45% of a modest turnout voted against strike action. While some of that group will accept the majority view and down tools for a while, many will probably not.

And when those not in court see their colleagues picking up instructions it will take considerable fortitude to carry on turning away work. On the other side of the fence, Legal Cheek has already reported on at least one significant law firm that has almost proudly declined to join the strike.

Don’t expect the MoJ to admit this, but the government’s ultimate aim is to put the criminal bar out of business — or at least, to drive to the wall all but those practising at the highest echelons.

Austerity combined with the modern mantras of efficiency and value for money in public services dictate that a structure consisting of a coterie of large crime specialist law firms is extremely attractive to the MoJ.

And while they too will not rush to admit this point, those big law firms — they have already formed a lobbying group — are keen to play ball with that philosophy. They are already expanding their advocacy departments with a combination of Crown Court-qualified solicitor-advocates and young barristers who see no opportunities in chambers.

Both barristers and solicitors needed to strike in overwhelming numbers to close the courts for months not weeks. The mainstream press would start to take notice when those alleged with murder, rape and nicking the handbags of grannies were set free because the state could not ensure fair trials.

But with 45% of barristers voting no and a considerable number not even bothering to cast a ballot, the future for the criminal bar — and many crime specialist law firms — looks pretty bleak.


Courts set to grind to a juddering halt as criminal bar votes to stop taking new work [Legal Cheek]