Depending on how it suits its arguments of the day, the UK government likes to portray lawyers as either “leftie activists” or “fat cats”. Putting aside for one moment such legal niceties as the right to a defence, these lazy tropes ignore the reality that publicly funded lawyers, representing the poorest and most vulnerable, earn a pittance. Junior criminal barristers earn on average about £12,200 a year before tax. Solicitors on legal aid can earn less today, in cash terms, than in 1996. That is no way to remunerate those fulfilling a vital public service.
That the criminal justice system of England and Wales is in disarray is no secret. That a government-commissioned report by a retired judge has found it to be so merely underscores the dire situation of a neglected system hit by decade-long swingeing cuts, even before the pandemic. A vital component of a properly functioning justice system is the ready supply of lawyers paid by the public purse, for those who cannot pay for their defence. The criminal legal aid budget has declined 43 per cent in real terms since 2005. In his report published in December, Sir Christopher Bellamy QC found an emergency injection of £135m a year to the criminal legal aid budget was needed just to stop a critical situation from becoming terminal.
Dominic Raab, the justice secretary, should heed Bellamy’s proposals, without delay. Raab has only offered to respond by March. That means any actual uplift may take months. With a court backlog that exceeds 58,000 cases, even after a promised £477m in support, and publicly paid lawyers quitting at alarming rates, urgent action is needed.
Criminal barristers are threatening strike action if the government does not commit to a substantial increase in the legal aid budget. They are pushing for Raab to publish the Ministry of Justice’s response by mid-February and complete a statutory consultation on changes by the end of March, or face a formal ballot on strike action.
While barristers received headlines for their strike threat, Bellamy’s diagnosis is that legal aid solicitors — those who typically deal day to day with the accused and then instruct a barrister — are faring worse than their learned friends. While the romantic image of bewigged barristers advocating in court still attracts healthy numbers of pupils — certainly from more privileged backgrounds whose parents can supplement paltry fees — the prospect of being called to the police station in the middle of the night to accompany a suspect as a poorly-paid duty solicitor holds far less allure. Bellamy found a worrying dearth of trainee legal aid solicitors and, as he told parliamentarians last week, “fees that have remained unchanged for 14 years, except to go down”.
Raab has said any strike would imperil the recovery of the courts. In that assessment, he is correct. Yet from not just a practical perspective but also one of principle, it makes no sense to try to improve some parts of the criminal justice system without also tackling the low pay of legal aid lawyers, to ensure a ready supply. Demand for their services is expected to pick up after the government promised an additional 20,000 police officers by 2023. More officers will almost certainly mean more offences charged, creating more court cases. Meanwhile, the Crown Prosecution Service can already outmatch the pay of legal aid lawyers.
That creates an imbalance in the so-called equality of arms between the defendant and the Crown in the UK’s adversarial justice system. If one side of the scales of justice is being bolstered, so should the other.