A former barrister who led the first strike at the England and Wales bar has said he “can’t see any alternative” to fresh industrial action in a dispute over legal aid fees.
Nigel Lithman QC said conditions and morale were worse now than when barristers walked out in 2014 over the same complaint – that pay for publicly funded work was too low. At that time he was head of the Criminal Bar Association (CBA); he went on to become a judge, and retired last year.
The strike, believed to be the only one to date in the bar’s history, was called off after a day and a half when the government suspended planned legal aid cuts.
“What should have happened is that remuneration should have then been taken on an upward trajectory to increase the rates of pay,” Lithman said. “That would have stopped what has happened, which is the exodus of lawyers from the criminal justice system.”
According to the CBA, 22% of junior criminal barristers have left since 2016. Lithman said: “We’ve reached the position where they’re waiting to see [new] offers for their remuneration but knowing that they are likely to take action again. I’m right behind them because I can’t see any alternative. At the moment it looks like they are being led up the garden path.”
Lithman, whose book on his career, Nothing Like the Truth: the Trials and Tribulations of a Criminal Judge, is published on Thursday, said it was inevitable that the threat of legal action would be used in talks with the Ministry of Justice (MoJ), and if a fair deal was not forthcoming “there’ll have to be stronger steps taken”.
He said he continued to provide moral support to the CBA, which declared earlier this month that it would be gauging the appetite of its members “for action should it become clear that there is no likelihood of a decent settlement on fees for our members. Nothing will be ruled out.”
In a 2019 ballot, CBA members overwhelmingly supported a mandate for action to secure fair fees, but it was suspended pending the outcome of the keenly awaited criminal legal aid review, which was launched in March 2019 and whose findings are due to be published this year.
Lithman said: “The idea that one can be earning – according to one set of figures – £12,000 a year for the first three years, it’s totally unacceptable. And you’re then getting back to all the issues of diversity, of people not being able to come to become a criminal advocate unless they’re well-off in the first place.”
He said that as well as increasing pay rates, barristers’ earnings could be boosted – and the backlog in courts reduced – by making all non-trial hearings remote by default, thereby allowing advocates to appear at different courts on the same day.
Having been on both sides of the bench, he is convinced judges would be sympathetic to industrial action by barristers. Giving credence to his viewpoint, on Tuesday the lord chief justice, Lord Burnett, told parliament’s justice committee there was a shortage of criminal lawyers, “and the likely reason is the relentless reduction in real rates of remuneration over the last 15 years”.
An MoJ spokesperson said: “We continue to support legal professionals and have invested an additional £51m in the sector. We will set out our plans to reform the criminal legal aid system shortly.”