Last Friday’s protest action shows the strength of feeling in the profession against the government’s criminal legal aid cuts.
This was the second protest, ramped up from January’s initial half-day action, and appears unlikely to be the last.
Such actions, even if escalated in number and frequency, are all very well and may disrupt the courts for days at a time, but they are unlikely to cause sufficient disruption to force the government to halt or reverse its plans.
Other actions, with longer-term impact, have been mooted by firms to escalate the protest, including a work to rule. Some have even suggested that solicitors should refuse to sign the new criminal contracts.
We all know the latter will never happen. The solicitors’ profession is too large and, even now, not sufficiently united, to close ranks and refuse en masse to sign up.
Solicitors have been careful not to call the action a ‘strike’, thought that’s what it is in all but name. They fear repercussions for breach of contractual obligations by the Legal Aid Agency, or actions by the Competition Commission for cartel activity.
The bar, though, could be the key. There has been unprecedented unity between the two professions over the reforms, which will mean some fees are cut by as much as 30%.
The reason for this could be that the solicitors need the bar to make their protest work and make the government take notice.
The bar has it within its power to bring the Crown courts to a near standstill, and as self-employed individuals, barristers do not have to fear being in breach of contract or worry about the Competition Commission – so long as they reach individual rather than collective decisions.
Barristers and solicitor-advocates have agreed to begin a ‘no returns’ policy - that’s to say where counsel, who are double booked, have returned cases, other chambers or firms will not pick them up.
If the bar were to go a stage further and refuse to accept any new Crown court instructions, the system would come to a grinding halt.
It is a lot to ask of barristers, whose earnings will necessarily take a huge hit, but it would be something that the government could not ignore.
Catherine Baksi is a Gazette reporter