Criminal barristers have voted overwhelmingly in favour of direct action over the government's legal aid reforms.
The Criminal Bar Association asked its 4,000 members whether they supported action - ‘no returns’ and ‘days of action’ - should the government decide to proceed with the duty provider scheme, reducing the number of legal aid solicitor firms by two-thirds.
The CBA announced this morning that 96% of respondents in an 'unprecedented' 35% turnout urged the criminal bar to take action ‘to press the government to think again’. The CBA received 1,385 responses – 1,328 voted in favour of action, 57 voted against.
Under the Advocates’ Graduated Fee Scheme (AFGS), only the instructed advocate can make a claim for payment.
A ‘return’ is any instruction to appear on any hearing on any defence case in the Crown court where there is a representation order in force in which another member of the bar is nominated as the instructed advocate.
CBA chair Tony Cross QC (pictured) said: ‘No barrister wishes to withhold his or her labour. It is a measure of the extreme nature of our concern that so many of our members are contemplating such action.
‘The proposed changes have no sensible economic foundation and will lead to irreversible damage to the criminal justice system. The proposed scheme will reduce competition, stifle innovation and paralyse the market as it becomes closed to new entrants.’
In a message to members earlier this month, Cross said the proposals, if implemented by the new government, ‘will damage deeply access to justice and deal a colossal blow to the self-employed bar’.
Cross said many solicitors would lose their jobs as a result of two-tier contracts and many already had.
He said the business modelling which firms had now undertaken ‘anticipates that new income streams from advocacy must be part of what comes next’, with the imperative of ‘securing a slice of the advocacy fee’ becoming a necessary part of the new model.
‘At present firms still need to protect their reputations by instructing barristers for a significant proportion of their advocacy in the Crown court. We are the specialist advocates and under current arrangements there remains a significant market for our services.
‘However, once the market is “fixed” these considerations will no longer apply in the same way, and once a much larger share of the work is guaranteed, much more of the advocacy can be taken in-house, and much of the remainder will go to freelance advocates who pay a 30% management fee (sometimes more) back to the firm.
‘This is the rational commercial reality that [the duty provider scheme] will enshrine. Justice for all will suffer.’
Bar Council chair Alistair MacDonald QC said the survey results ‘demonstrate how deeply damaging the bar considers the dual-contracting model could be to the effective and efficient delivery of criminal legal services. The Bar Council will now work with the CBA and the circuit leaders to consider how best to address these concerns’.
In March 2014 criminal barristers called off further direct action over legal aid reforms after Chris Grayling, justice secretary at the time, postponed a planned (average) 6% cut to fees paid to advocates in Crown court cases under the AGFS until at least this summer.
Cross said this morning the CBA ‘remains committed to constructive dialogue with the government to ensure that our country has a [criminal justice system] that is fit for the 21st century’.
Bill Waddington, chair of the Criminal Law Solicitors' Association, said the CBA’s vote was ‘hugely welcome’.
Waddington said: ‘We hope the arrival of a fresh face in Petty France, in the form of [justice secretary Michael Gove], will see the government push the reset button on their legal aid reforms.
‘We would welcome the opportunity to engage and work constructively with them to preserve our justice system, and the treasured principles of access to justice and equality before the law.'
Jonathan Black, president of the London Criminal Courts Solicitors' Association (LCCSA), said it was ‘delighted’ the CBA surveyed its members, with overwhelming support for a no-returns campaign.
Black said: ‘We witnessed last spring strength of a united approach from both sides of the profession. Should the action be considered a necessary step, then we shall, as on the last occasion, do everything to urge our members to participate jointly with our sister profession.’
The Law Society said: ‘Anyone accused of wrongdoing should have access to legal help. While we would of course advise our members against doing anything which involves breaching legal aid contracts, no one can look at this issue without understanding why such action is being contemplated.’