Criminal legal aid: What’s next?

Legal aid in the UK has been in a precarious position for years following severe cuts and a repeated failure by the government to address the crisis. With criminal legal aid on the brink of collapse, finally, in December 2018, the Ministry of Justice (MoJ) launched a review, the results of which were only published in December of last year.

Following the publishing of the review, the UK government failed to expedite its timetable for reform, causing the Criminal Bar Association (CBA) to vote in favour of action, which was followed by a war of words between the CBA and Justice Secretary Dominic Raab.

Raab later announced that he would match the recommendations set forward by Sir Christopher Bellamy, the chair of the review and inject £135m a year into criminal legal aid. The government announced that this would set the legal aid sector on a “sustainable footing for years to come.” However, while some in the legal sector have welcomed this, legal action is still set to go ahead.

The ongoing legal aid crisis

For more than a decade, the Conservatives have decimated the Ministry of Justice’s (MoJ) budget. Specifically, the criminal legal aid budget has fallen by £500 million, the impacts of which have been disastrous, causing a mass exodus from the sector, with fewer new solicitors being recruited.

Figures from the CBA reveal that since 2016, 22% of junior barristers and 46% of QCs have left the criminal bar, with the remaining barristers specialising in criminal law (45%) made up from an ageing population of age 45 or over. Likewise, Bellamy’s review noted that around 80% of the firms involved in criminal legal aid work had no trainees, and similar dismal figures related to the ageing nature of criminal legal aid are found in solicitors, with approximately two-thirds of solicitors now over the age of 45.

Moreover, according to the Law Society, in the UK, there are now just 1,067 firms holding a criminal legal aid contract, compared with 1,652 in April 2012, something which Law Society president Stephanie Boyce says could lead to a barrier to justice for victims and defendants. Arguably, this is already happening, with figures showing that between July and September 2021, 194 cases were abandoned, due to there being either no prosecution or no defence advocates, further adding to the case backlog. Shockingly, Jo Sidhu QC, the chair of the Criminal Bar Association, revealed one in four of those cases concerned serious and violent offences, including sexual offences.

The report’s recommendations and Raab

In his 160-page report on criminal legal aid, Sir Christopher Bellamy urged ministers to inject a sum of £135m into the sector. This, he said, would be “necessary as the first step in nursing the criminal legal aid back to health after years of neglect,” adding that there is “no scope for further delay”. Likewise, he emphasised that this recommendation of a 15% increase would “be no more than a minimum starting point, to be kept under review going forward”. The CBA responded to the report by outlining that if, by 14 February, no action was taken, it would proceed with a ballot for action.

This was followed by inaction by the government, who said that a response to the report would be published at the end of March and that it was something that was “simply too important to rush and get wrong.”

Speaking to Radio 4’s Today programme this morning, Raab hit back at the CBA’s proposed action by saying: “The one thing that would hold back recovery in the courts system is if the Criminal Bar Association and criminal lawyers go on strike”. The CBA retorted that its members “are the only thing that has kept the system on the rails for the last two years.”

This very public verbal battle continued, and Raab, in an article for The Times, said that the sector “must be patient” and went on to claim that the CBA was risking leading its members into an “unnecessary and irresponsible strike” which would result in further delays and “open the government up to legal challenges.” The CBA responded by outlining that it had not asked the government to “to infringe any public law principles.” “This is a lie. We have asked for a response to a report MoJ commissioned and have had since the end of November,” said the association in a Twitter post. 

The £135m legal aid pledge

On 15 March, the government announced that it would be delivering an extra £135m a year to the sector to match the recommendations made by the Bellamy report. Commenting on the announcement of the legal aid investment, Raab said it was “owed” to the whole legal profession and that it would help to “ensure legal representation is there for those who most need it as we build back a stronger and fairer society after the pandemic.”

The CBA’s Jo Sidhu responded to the announcement with disappointment and rightfully highlighted the hike was recommended as a “minimum necessary,” not “an opening bid’. He said: “Indeed, on one view, it betrays a wholesale failure to recognise the severity of the crisis currently engulfing our criminal justice system and the urgency needed to address that huge challenge.” The Law Society’s response from Stephanie Boyce, while more positive, still outlined that the investment is only the “first step” towards repairing the criminal justice system.

Moreover, the recent CBA ballot saw members voted overwhelmingly for a “no returns’ policy from 11 April. As reported by the Law Gazette, one of the conditions that need to be met to prevent action include “a 25% remuneration increase under the advocates’ graduated fee scheme for claims submitted on or after 11 April.” Sidhu has since declared that unless the government makes substantial movement to meet what he called “legitimate and reasonable demands,” there will be “no second ballot.’

When previously asked in the Commons about the proposed action on behalf of the CBA, Raab said it would be “totally unwarranted” to proceed with strike action.Looking ahead, this is certainly not the end of the battle, and it looks like the CBA will push forward with action following Raab’s announcement of a decidedly ‘insufficient’ rise in funding. With Sidhu warning that the exodus of prosecutors and defenders from criminal work will “continue if not accelerate,” it is time for the government to return with a truly adequate response fitting to address the serious nature of the crisis.