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Barristers have issued a “warning shot” to the new government in the long-running dispute over legal aid funding, as the Criminal Bar Association raised the threat of industrial action.
In a twin blow, as patience wears thin over Labour ministers’ handling of the courts crisis, the Law Society simultaneously urged solicitors to consider either scaling back or stopping taking on legal aid cases, warning that the system is now “at the limits of financial viability”.
Funding for legal aid – which helps people pay for legal advice and representation – has fallen by 28 per cent in real terms over the past decade, with remuneration fees for lawyers involved in civil cases now approximately half of their value in 1996, according to the National Audit Office.
With the pool of lawyers willing to take on such work severely diminishing, further reducing the number of people able to access legal aid after austerity-era laws tightened eligibility, legal professionals have been engaged in a years-long battle to urgently boost the funding available.
Fuelling mounting frustration, the Criminal Bar Association revealed this week that Sir Keir Starmer’s government has been sitting for two months on an independent report assessing the dire state of criminal legal aid – and urged ministers to publish it ahead of the chancellor’s upcoming Budget.
Warning that “there may be an assumption that we will not react” if the as-yet-unpublished report’s recommendations are not implemented, the group’s chair Mary Prior KC said it will ballot its members “to consider what the next steps will be” and is “ready to act in accordance with their wishes”.
Raising the spectre of the strikes, which saw parts of the justice system grind to a near-halt in 2022 over the legal aid row, the group’s chair Mary Prior KC said that “experience has taught us that there is no movement from government without significant disruption to the courts”.
Describing Ms Prior’s statement as “a warning shot to the Ministry of Justice” and “quite possibly the start of the resumption of industrial action”, criminal defence solicitor Stephen Davies said: “Who could blame [them]? We have been ignored repeatedly.”
In a further escalation on Monday, the Law Society – which represents 200,000 solicitors – advised law firms to “examine the viability of each type of criminal legal aid work they undertake to decide if they should scale back or withdraw altogether until there is meaningful action by the new government”.
The group’s new president Richard Atkinson said: “We can no longer ask firms to hold on in the hope of action from government that may never come. We have gone beyond a system that is based on goodwill, and now it is at the limits of financial viability.”
In its criticism of the new government in its first 100 days in office, the Law Society said ministers had failed to reconsider the previous Tory government’s refusal to raise defence solicitors’ legal aid fees by the “bare minimum” 15 per cent recommended by a major review by Lord Bellamy KC in late 2021.
In spite of this, and a failure to state its position on fees for solicitors at police stations and in youth courts – now expected in November – the government has asked law firms to bid for 10-year legal aid contracts by a deadline of 22 October, the Law Society said.
Senior justice figures have also expressed alarm at the government’s refusal to significantly lift the cap on judges’ sitting days to allow the courts to run at full capacity, despite fears that the crown courts backlog has soared to grim new records, leaving some judges unable to schedule trials until 2027.
A Ministry of Justice spokesperson said: “The new government inherited a justice system under enormous strain and a criminal legal aid system facing significant challenges.
“Criminal defence lawyers play an essential role in ensuring that justice is done. While any decision on future government funding is subject to the upcoming spending review, we are committed to working with the legal profession to support the sustainability of the market both now and in the future.”
But Mr Atkinson said solicitors had “been banging on their door” asking when criminal aid will get the funding increases it needs and had seen only “warm words, lack of transparency and empty assurances” in return.
Following the Law Society memo, Paul Harris, a senior partner at Edward Fail Bradshaw and Waterstone, said the owners of criminal legal aid firms had met to consider whether to continue to provide legal aid advice.
Warning that this would lead to defendants in cases such as those involving domestic violence or harassment being unrepresented, he said: “The failure to implement recommended [legal aid funding] rises has meant many cases are conducted at a loss.”
Criminal barrister Simon Spence KC, who chairs two local barrister associations in southeast England, added: “Without urgent action (and investment) from the government, the system will collapse. It really is that simple.”
