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Criminal Law: Why we are striking
Seema Dosaj, managing partner at Berris Law LLP explains the background to the strike action – as well as ensuring barristers are paid appropriately it is to protect the future of the justice system. Independent advocacy is essential in supporting the rule of law.
The legal system in the UK was once considered to be the benchmark of the world. Many countries adopted our system, but now due to a lack of funding and lack of recruitment this special system is broken.
Being represented in court and ensuring that everyone be entitled to a fair trial, was a tenet promised by the Magna Carta. It was a right that everyone had, and sadly, this happens to no longer be the case.
Barristers are self-employed and independent; they deliver a very high standard of advocacy. Their historic commitment to supporting individuals and upholding the premises such as the right to a fair trial is something that should not be forgotten. However, we now find ourselves in a situation where no funding has been invested in the court buildings, court staff, or in barristers’ and advocates’ fees.
Barristers have experienced a continued financial precariousness, partly due to rates of pay and the way in which they are paid – the reason for the walkouts that we currently face. Those of us working in the criminal justice system do not take these steps lightly – barristers began with a two-day strike in the week of June 27th this year. These protests are due to continue for an extra day each week until reaching a five-day strike in the week of July 18.
There are numerous issues with the current payment system. Today, barristers are paid a fee for each case instruction. This instruction fee fluctuates depending on the seriousness of the offence followed by a daily rate for trial. Though each case may call for similar amounts of preparation, the work is worth a disproportionate amount less if the client pleads guilty as there is no additional trial fee.
Other issues faced by barristers include not being paid for work done for a specific trial that they cannot attend due to other cases clashing. With the backlog of cases currently flooding the system, these clashes will no doubt become far more prevalent. Not forgetting that payment is also only made to barristers once their case is finished will again only be exacerbated due to the backlog and long delays. This makes the economics of practice difficult, especially for those starting out in their careers.
It has been widely reported that many barristers earn less than the minimum wage for the work that they do. The chair of the Criminal Bar Association, Jo Sidhu QC, claimed barristers had suffered an average decrease in real earnings of 28% since 2006 – and that those in the first three years of practice earn a median income of only £12,200.
In 2021, Sir Christopher Bellamy QC chaired the Independent Review of Criminal Legal Aid which found that significant numbers of barristers undertaking criminal legal aid work were paid around £12,000 in the early years of their career. Even in the higher income brackets identified in the report, criminal barristers’ incomes were significantly below those in commercial or tax work, or solicitors working in elite firms.
Bellamy also found that there was a high rate of attrition at the criminal bar, with the loss of ethnic minorities and women in particular, and an increasingly “aged” profile. While he was hesitant to blame pay alone, Bellamy recommended a general increase in the fees paid for criminal work by £35 million (15%) for both barristers and solicitor advocates.
The justice secretary Dominic Raab proposed a 15% pay rise, or around £7,000 for a “typical barrister”. But this would not apply to the current huge backlog of cases created by the pandemic, of which many cases may take years to resolve. These would neither address the loss of barristers who cannot afford to live on their current wage packet or entice new entrants to the system.
As a result of poor pay and the poor working conditions that barristers face, many have now left the profession. The profession is seeing no new recruits, with law students preferring to pursue more lucrative and better working conditions. The strike action is as much about ensuring that barristers are paid correctly, then it is about protecting the future of the justice system which is quite frankly at breaking point. The current backload of cases, and lack of barristers, means that the public is no longer being served the justice that they are entitled to. Independent advocacy is essential in supporting the rule of law.
This current chaos in our system will also mean that barristers from less-privileged economic backgrounds, women, and ethnic minorities, will be forced out over low pay. The bar will soon become a profession for the privileged few, those who may not be able to entirely relate to those that they represent. This will have a significant impact in the recruitment of the Judiciary who will then be chosen from a pool of the privileged few, reflecting white males who may have little understanding and little lived-life experience of those who appear before them.
The impact of the low pay is not all about lining the pockets of those who are “perceived” to be the elite. It is about upholding the rule of the law. It is about ensuring that we are all represented equally by men and women who reflect our demographic, and not just by the elite class in this country.
May 2022