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Why is the legal sector striking?

With more strikes by barristers planned for July following those earlier this week, Julian Hayes explains exactly why this action is being taken by those working in the courts.

Monday saw barristers and solicitors standing shoulder to shoulder outside courts the length and breadth of England and Wales, including the Old Bailey, in protest over legal aid cuts and the slow death being suffered by the criminal justice system. For those of us that remain in practice in criminal law, the protests feel rather like a last stand against a profligate, careless, and neglectful government. Our dwindling numbers manning the barricades, the thin grey line resolutely defending not just their own futures but the very fabric of the criminal justice system.

Everyone should be reminded that legal aid was introduced, along with the NHS, in the aftermath of the Second World War as one of the pillars of the welfare state to protect the disadvantaged and vulnerable – most defendants within the system qualify as such. However, whether prince or pauper, when under investigation in a police station for interview, we are all entitled to free and independent legal advice from a suitably qualified lawyer.

The Conservative Party used to pride itself on being the party of law and order; yet over the last 12 years, its attitude towards the criminal justice system has been anything but that. Court and police station closures, reductions in police numbers, a lack of investment in the court infrastructure leading to crumbling and hazardous court buildings, have culminated in a major loss of hundreds of lawyers.

We cannot lay the blame entirely at the door of the Conservatives, the Labour government of the noughties set the tone, when the then Lord Chancellor, Derry Irvine, made it his political goal to reduce expenditure on legal aid and infamously commented that he knew his draconian measures were working "when you hear the squeals from the lawyers". Those squeals have faded with the dwindling numbers.

Lawyers had anticipated that the recommendations made in the Bellamy Legal Aid Review would be implemented fully and speedily given the grave concerns it raised. The Review had suggested that the rates should immediately be raised by a minimum of 15 per cent with the prospect of more to come. We all rejoiced when the government claimed it would follow the recommendations, however, as we have all grown accustomed, the word of any justice minister cannot be trusted. After some number crunching the Law Society advised that the proposed increase amounted only to a 9 per cent and took the unusual step to recommend that law firms should think very carefully before agreeing to sign up to the new legal aid contracts due to commence in the autumn.

In any event, whether it is 9 per cent or 15 per cent it is too little and given the snail's pace at which they propose to implement the increase it will no doubt be too late. Legal aid rates have not increased in a quarter of a century add 25 years of inflation as well as cuts in 2007 (33 per cent) and 2014 (8.75 per cent) , the demand for a 25 per cent increase in those rates is not unreasonable and frankly with inflation now hitting 11 per cent may not even be enough. After all, this is just to put lawyers in the position they should have been in had successive governments managed this process with appropriate care.

The common misconception is that criminal lawyers are 'fat cats' fleecing the legal aid system. The grim reality is that newly qualified barristers earn little over the £12,000 a year. It is not much better for their newly qualified solicitor colleagues, and whilst with experience earnings increase, it in no way reflects the heavy responsibility they carry, the lives that are affected by them, the skills that must be applied and the expectations, from client, fellow professionals and the public. They may get more work, but in order to make a sustainable living they have to work all the hours possible. Already saddled with debt from student years, facing long hours and no work life balance, it is impossible for anyone to sustain a career in this discipline and those that do leave rapidly.

Why should the public care? There was justifiably a pride in our criminal justice system and that those facing the full force of prosecution by the state could expect good and dedicated lawyers to defend them. The quality was there. That is now faltering. This country's reputation for fairness is diminished. Victims of crime also suffer. There is a huge backlog of cases. These delays were already inherent before the pandemic but have been exacerbated by that terrible affliction. There are simply not enough lawyers to defend or prosecute. Where do you think prosecutors come from? You guessed it, from criminal defence. Whilst the Ministry of Justice may increase the number of court rooms, judges, and juries if there aren't any lawyers to prosecute or defend then it cannot work.

The legal aid system is broken. The fixed fees for the work undertaken introduced over the years baffles lawyers. It has clearly been contrived by civil servants who have no idea of the work or the system in which they are being implemented. We are also baffled by the bureaucratic and convoluted method in which criminal legal aid contracts are awarded. Why can't lawyers be paid by the hour as opposed to fixed fees? It will ensure that we are remunerated for all the work we undertake and are fairly paid for the hours we put in.

Those rates should also increase annually in line with the retail price index. The system of contract tenders every three years (often extended up to five years because the Legal Aid Agency haven't got their act together) has to change. It is an unnecessary expense and does not provide flexibility for firms to be sustainable and efficient with an ability to plan for the future and train the next generation of lawyers. I cannot understand why, provided you meet the quality standard and compliance requirements you should not be able to start a new firm whenever is convenient. This was the case up to about 20 years ago. As it did then, it will produce a vibrant environment allowing natural growth and development, meeting demand where required.

The system must develop and should not be driven by government policy and civil servants. It should be run and maintained by the lawyers who undertake the work and are best placed to regulate the work and ensure that the criminal justice system returns to its best self and is maintained. The government must listen and invest, otherwise they will preside over the demise of the fair criminal justice system for which we are globally renowned.

Julian Hayes is a senior partner at Berris Law LLP.
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