Crown courts are facing major disruption following moves by solicitor practitioner groups to escalate their protest against cuts to criminal legal aid and a backlash from barristers against a deal with the Ministry of Justice.
The government also faces the prospect of a legal challenge to the cuts, as the long-running dispute rumbles on over the government’s quest for £220m in savings.
The London Criminal Courts Solicitors’ Association (LCCSA) revealed last week it had received ‘positive advice’ from counsel with regard to ‘challenging the MoJ’s response to the [Next Steps] consultation by way of judicial review’.
The action will be taken in the name of the LCCSA and the Criminal Law Solicitors’ Association (CLSA). The groups have set up an online fighting fund to gather support to reduce the financial risk to their officers, who will be personally liable for costs should they lose. They suggest donations of £250 per firm and individual contributions of £20.
The Law Society said it had not been formally approached, but chief executive Desmond Hudson said it would be ‘delighted to consider’ any request for financial support. If that happens, he said, the Society will consider it and make a decision in accordance with its governance procedures.
Last week solicitors joined forces with probation staff to stage a two-day walkout. The action came in the wake of a deal struck between bar leaders and the MoJ postponing 6% cuts to the advocates graduated fee scheme (AGFS). In return, the Criminal Bar Association (CBA) agreed to suspend direct action, which has included a ‘no returns’ policy of not picking up cases returned by double-booked barristers.
At a meeting during last week’s protest, solicitors from the LCCSA and CLSA agreed to refuse work in new Crown court cases from today. The ‘no to Crown court’ policy seeks to build on action taken by the bar, which solicitor groups felt had been a ‘significant bargaining tool’ in negotiations with the MoJ.
The LCCSA stressed it remains up to individual solicitors to decide whether to adopt the policy.
The deal agreed with the MoJ by the CBA and five of the six circuit leaders (the northern circuit did not support it) prompted criticism from barristers, chambers and solicitors, who felt the bar leaders had capitulated to a ministry that had been rattled by the profession’s united action.
The backlash prompted the CBA to ballot its members on whether to continue protest action until all the cuts and contracting reforms are abandoned. The vote, which opened last Wednesday, closes at 6pm on 9 April. Writing to CBA members to encourage a ‘full turnout’, the circuit leaders said: ‘The answer to the ballot will shape both CBA policy and the landscape of the criminal bar for years to come.’
They told barristers that the ‘settlement’ with the MoJ did not imply that they accepted there should be any cuts.
The circuit leaders rejected the notion that they had ‘done the solicitors’ profession a disservice’, stating that 30% of AGFS work is carried out by higher-court advocates, who will benefit from the deferred cuts.
They said: ‘It is not in our interests to abandon those solicitors who are working to preserve the system in which both branches of the profession believe.’ They pledged to ‘continue to do what we properly can to support the opposition to dual contracts, the reduction in contract numbers, and further proposed cuts’.
Commenting on the bar’s stance, LCCSA president Nicola Hill said: ‘Of course we’re disappointed with the leaders’ actions, but we have been encouraged by the reaction from rank- and-file barristers and chambers. This is not over yet.’
James Gray, a barrister at Dyers Building, who attended the protest last week, told the Gazette the deal with the ministry ‘exposed’ the fact that some barristers had merely taken action in relation to their fees, rather than fighting for access to justice.
‘The problem now is that Grayling has divided the bar. The unity has gone. Solicitors and probation staff will be left on their own.’ In addition, he said the bar’s action had ‘weakened the bargaining position of solicitors’.
Young Legal Aid Lawyers, which includes barristers and solicitors, issued a statement on its website expressing ‘dismay’ at the CBA’s ‘unilateral action’. It warned that the deal, which it said ‘simply postpones the implementation of the cuts’, will not benefit junior barristers in the long term.
‘If fee cuts affecting solicitors proceed, as we understand they will, then it seems likely that many criminal law firms will be forced to close. This will not be good for solicitors, for the bar or for our clients,’ it said.
Cuts of 8.75% were implemented for solicitors undertaking police station and magistrates’ court work this month. A second tranche of 8.75% cuts is due to come in with the new criminal contracts in summer 2015.
Barristers doing very high cost cases (VHCC) experienced 30% fee cuts in December. Since then many barristers have returned VHCCs and refused to accept new cases, leaving publicly funded defendants unrepresented in seven trials.
As part of the MoJ deal, the CBA dropped its objection in principle to barristers undertaking VHCC work, but stressed it remains a matter of choice for individual barristers.
Whatever the outcome of the ballot, some barristers have indicated that they will continue to refuse VHCC work.
If the vote goes in favour of continued protest action, the deal postponing the fee cuts will be off. A spokeswoman for the MoJ told the Gazette: ‘The agreed package will need to be delivered in full by all sides.’
Meanwhile, as the dispute continues, the bar’s regulator the Bar Standards Board began consulting on proposals that could make it harder for barristers to return cases on the basis of fee reductions.
Revised guidance states that barristers will have to continue in cases where returning instructions will have a ‘disproportionate impact on the lay client, administration of justice or public interest’.
The BSB said it was concerned that previous guidance had not adequately addressed regulatory risks such as the detriment to clients who found themselves without representation through no fault of their own.