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No one takes industrial action on a whim. In a week where the RMT general secretary, Mick Lynch, has risen to national fame by incredulously skewering his interviewers – that much should now be plain to them. In some quarters trade unions are caricatured as thinking of nothing other than when the next strike can be organised. This is despite the UK having some of the most anti-trade union laws in Western Europe. And for barristers like me, preparing to walk out of courts across England and Wales tomorrow, it really is the last resort.
The sight of barristers in wigs and gowns, placards aloft, protesting outside courts – once unthinkable – has become almost a biennial event during the last decade. My profession – notoriously slow to move with the times and still conservative in many stubborn respects – has gradually come to terms with using industrial action to defend incomes and stave off further Tory cuts. To date, that action has usually taken the form of a work-to-rule (‘no returns’) in which barristers have declined to cover one another’s cases when the ‘instructed advocate’ is unavailable owing to another professional commitment.
However, following two mass meetings of the profession in early June a resulting ballot saw 81.5% of those who voted favouring a staged walk out. The mood of the meetings was clear: enough was enough. The reasons for the discontent are many: a decade of austerity laying waste to the criminal justice system; court closures; the backlog of cases – huge before the pandemic, larger still now; junior lawyers quitting the Bar in large numbers; a fee regime that has had no proper increase in two decades.
Perhaps it is no coincidence that the anger has come against a particular backdrop. A recent quote from a ‘Government source’ characterised legal action concerning the notorious deportation-to-Rwanda-policy in the following way: “Campaigners and opponent lawyers will be doing everything possible, exploiting every loophole, throwing in every spurious and meritless claims, to get their client dragged off the flight today.”
“Opponent lawyers”: the implication is clear that those who do their jobs in the service of ensuring the state does not abuse fundamental rights are to be considered the enemy.
The action in fact started in April with the ‘no returns’ work-to-rule. The reason for the discontent was the Government’s inaction in response to the Criminal Legal Aid Review (CLAR) completed by Sir Christopher Bellamy. The review was announced by the Ministry of Justice in 2018 with the stated aim of “ensuring the sustainability of the Criminal Legal Aid System as a whole” and to ensure it was able “to provide high quality legal advice and representation to those who need it, now and in the future. This objective will be the foundation for the review’s analysis and recommendations.”
When the delayed review came, the main recommendations included payment to barristers for written work, a second main payment for a particular type of case known as ‘Section 28’, the establishment of an independent pay review body, and an immediate injection of 15% into the payment system known as the ‘Advocates’ Graduated Fee Scheme’.
The 15% increase in fees is said to be imminent but no firm commitment has been given. The Government has said nothing of the other recommendations in the review. Of course, 15% sounds like a significant increase and when compared with other public sector pay demands looks even larger.
First, the figure is a percentage of the legal aid spend in a previous year and so is not 15% on its own terms in 2022. Moreover, most criminal barristers are self-employed meaning usually over a quarter of our income goes to the professional costs of simply doing the job: offices; staffing; court dress; insurance; training. All before considering we do not get holiday or sickness pay, nor do we have workplace pensions with contributions from an employer. The costs of doing the job itself are significant – saying nothing of qualifying in the first place.
Many aspiring barristers amass significant student debt in the hope of getting one of the diminishing number of ‘pupillages’ available each year (essentially a training position). When I began pupillage in 2012, I was guaranteed an income of £12,000 in my first year which was typical at the time. The potential existed to earn in excess of that but not significantly so.
Ten years later that guaranteed minimum remains £12,000. And qualification doesn’t suddenly see an exponential rise in income. Most are lucky to reach £20,000 within the first three years but it takes five years to establish oneself properly. And again the professional costs of court wear – £600 alone for the wig – suits, legal textbooks are annual and borne by the individual. And with working weeks often exceeding 60 hours, it’s no surprise then that many choose to leave the profession rather than slog it out. And for those without independent or family financial support, the hurdles are even greater. The Criminal Bar Association (CBA) estimates that 40% of juniors left the Bar during the pandemic. It is principally concern at this exodus which has driven the calls for action.
The CBA also estimates that since 2006 our real earnings have declined by 28%. During the pandemic many of us were still required to attend court to keep the criminal justice system going. However, the Ministry did save some £240 million on fees during a single year of the pandemic. Yet that money has not gone back into the AGFS scheme.
So no one strikes on a whim. Not members of the RMT, not teachers, doctors or nurses. Uniquely any barrister taking part in the action risks disciplinary action for doing so. This week has seen dire warnings issued by the Lord Chief Justice and the Bar Standards Board to those who participate in the action. Yet the profession is overwhelmingly united that the time has finally come to cross the Rubicon.
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