Criminal barristers in England and Wales have voted in favour of an all-out, indefinite strike after years of declining pay. This industrial action will begin in the first week of September and escalates existing instances of withdrawn labour in relation to cases funded by criminal legal aid.
Nearly 80% of the roughly 2,000 members of the Criminal Bar Association taking part in the ballot voted to move to an uninterrupted strike. This situation will continue for the foreseeable future until barristers see signs of their demands for a 25% increase in pay being met.
This is not without risk for barristers, who could potentially face fines or professional sanctions. Many practitioners have felt intimidated by a message sent by the lord chief justice to crown court judges, which said that striking barristers should be referred to regulators.
But barristers are desperate. They are reacting to a decrease in real earnings of 28% since 2006, including earnings from legal aid falling by 23% over the pandemic. The relatively low rates of pay, especially for junior barristers, mean that high numbers of practitioners are leaving the profession, putting more pressure on those who stay.
Although issues of underfunding in legal aid go back decades, the renewed strike action has been prompted by the recent independent review of criminal legal aid, which recommended that fees be increased by a minimum of 15% without delay.
The review also highlighted that the likely starting income for criminal barristers was £9,000 to £10,300 a year. This means many are effectively working for well below the minimum wage – while some commercial law firms offer starting salaries of up to £100,000.
So junior criminal barristers typically earn dramatically less than they could for work that nonetheless requires high levels of expertise and is extremely challenging. This leads many to leave the profession before they reach higher pay levels, which also affects the diversity of the bar. The review identified that women and ethnic minorities in particular are leaving.
The Criminal Bar Association is concerned that the government’s response to the review was underwhelming and lacking in urgency. The government would only agree to increase fees by the minimum recommended amount of 15%, far less than the 25% that the criminal bar association say is needed to support barristers.
Working overtime
Strike action has not been taken lightly and the impact will be considerable. The backlog in the courts means more time on remand for defendants and an agonising wait for victims and their families. Yet, a continuation of industrial action comes as no surprise to those of us researching legal aid in England and Wales.
Together with our colleagues Catrina Denvir and Jess Mant, we recently conducted the legal aid census, the largest ever workforce survey of legal aid lawyers on behalf of Legal Aid Practitioners Group. Our analysis will also be the subject of an upcoming book, Legal Aid and the Future of Access to Justice.
Our work on the legal aid census found that for legal aid lawyers generally (not just criminal barristers), pay is a significant concern. The most common salary for all practitioners is between £30,000 and £39,999, and the majority of practitioners earn less than £49,999, despite many holding senior positions.
More than half of legal aid practitioners either disagreed or strongly disagreed that the salary and working conditions for their roles were fair. Some 94.3% of practitioners reported working more hours than what they were paid under different types of “fixed” fees. On average, legal aid lawyers work 106 minutes for every 60 minutes of pay.
In reality, there is no such thing as being paid “overtime”. Preparing documents for court, dealing with clients, waiting for cases to start, and wasted work on those that don’t, all involve many hours of work without pay. It is unsurprising that half of legal aid practitioners told us that their work has an overall negative impact on their wellbeing.
We found that across all areas of legal aid work, criminal law is where it is most challenging for barristers to take on new cases. The most common reason for this was due to financial constraints, often related to difficulties recruiting and retaining junior barristers to do the work. Alarmingly, criminal lawyers comprised 29.6% of all those in our survey who had left the sector. The future of the profession is very much in doubt.
The strike will continue until there are signs from the government of a real commitment to change in terms of meeting the requested higher rates of pay. A system underwritten by collective goodwill can only cope with so much strain. The criminal justice system is at risk of complete collapse without fair remuneration for its workers.