Should a lawyer go on strike?

Lawyer strikes are again cropping up in the news, as the legal professions battle with the lord chancellor over the speed of implementation of the criminal legal aid reforms after the Bellamy review.

The Criminal Bar Association has said it will ballot members on action if the lord chancellor does not commit by this week to increase funding substantially. It clarified that it is not proposing strike action, but withdrawing labour on cases ‘returned to us’ when counsel is no longer available due to work commitments. OK.

The Chair of the Criminal Bar Association said last week: ‘The history of collective action by the Criminal Bar proves that it is only the prospect of independent barristers withholding their labour that has focussed the minds of decision makers and brought them to the negotiating table.’

It may be useful to revisit lawyer strikes. Our near neighbours, lawyers in France, have struck twice over the last couple of years, and for different reasons.

The first long strike in 2019-2020 was over reform to pensions. French lawyers had an advantage in that struggle in that they were not alone – many sectors struck at the same time. That is because France has a sectoral pension system, with lawyers having their own national pension system. But so do ballet dancers and rail workers, in a maze of 42 different plans for different professions and categories of workers, with a variety of rules, minimum retirement ages and methods of calculating a pay-out.

It being France, black robes were draped on the staircase leading to Lyon’s main courthouse, while elsewhere heavy legal books were arranged on the floor to spell ‘SOS’.

But lawyers also withdrew their labour in the understood manner, leading to moral consequences with which all lawyers will be familiar: a prisoner waiting longer to plead for release; a vulnerable worker having to wait further years for compensation from an industrial tribunal; a woman in urgent need of a restraining order from an abusive spouse; an immigrant at the airport having to plead alone and without a lawyer for entry to France. 

The French government’s reform plan included raising the retirement age by two years to 64 (a shock to our ears), and replacing the dozens of sector-specific retirement plans with a new single plan. Although their system may seem odd to us, French lawyers complained that they would end up paying more for a lower pension.

Interestingly, the strike was eventually successful, but not exactly because of the strikes. The plan, and the strikes in reaction, were first postponed because of the severity of the pandemic, and by the time the matter was considered again, France was too close to the coming presidential election. President Macron has said that his proposals will be reconsidered after the election, obviously assuming he wins.

The second French lawyers’ strike was just a couple of months ago. Judges, lawyers, magistrates, clerks and other court workers stood outside courts and the budget ministry in Paris to protest against long working hours, badly understaffed courts and hurried legal proceedings. The background to this may sound more familiar to us.

Interestingly, the courts joined in with the action. There was even a statement from the highest court, the Cour de Cassation, saying that it ‘could not remain silent at a time when despair affects those who try, sometimes at the cost of sacrifice or tragedy, to carry out justice’. Such solidarity from our own courts is not imaginable in the struggles of criminal legal aid lawyers here for fair treatment.

The question remains whether lawyers can or should go on strike. There appears to be precious little literature on the subject: a Google search on solicitors’ right to strike takes you straight to an article I wrote on the subject some years ago, in response to a previous call to arms by the Criminal Bar Association over legal aid fees.

The position seems unchanged since then, that a solicitors’ strike would breach several of the SRA Principles, such as our duty to act in a way that upholds the administration of justice and in the best interests of each client.

I have no doubt that French lawyers are subject to the same duties, but such principles may be interpreted differently elsewhere, for instance where there is a different national attitude towards collective duties and solidarity in favour of the overall administration of justice.

Not surprisingly, solicitors here have varied views. For that reason, any solicitors’ strike would be unlikely to be successful, because it would be partial.

Coming to such conclusions leaves a bitter taste, because it seems to give the lord chancellor a free hand to continue depriving criminal legal aid lawyers of their due. Shame and guilt on their own seem to have little effect on him.

Jonathan Goldsmith is Law Society Council member for EU and international matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a  Law Society Council member, nor on behalf of the Law Society