Will solicitors and barristers join forces in industrial action after Gove protects advocacy fees from cuts?

If you listened very carefully last week you might have heard the soft but distinct clink of champagne flutes as incumbent and former Lord Chancellors toasted their success at having once again divided lawyers over legal aid.

Michael Gove is, by all accounts, an incredibly intelligent man, but his decision to save barristers from cuts to advocacy fees – while continuing to hack away at solicitors’ – was Chris Grayling at his best. If Gove had been able to employ the same tactic against teachers while education secretary, he may still be at the Department for Education and not head of the Ministry of Justice (MoJ).

Now legal aid lawyers find themselves between a rock and a hard place as they try to, once again, decide upon their next move. On the one hand there are the combative leaders of the London Criminal Courts Solicitors’ Association (LCCSA) and the Criminal Law Solicitors’ Association (CLSA) calling for direct action, while on the other there is the defensiveness of the Criminal Bar Association’s (CBA) executive, which appears to, in effect, be saying: ‘It’ll be alright on the night. We’re Gove’s favourites, after all. He likes the independent Bar.’

The MoJ’s promise to save barristers – at least for the time being – from fee cuts, and the CBA’s decision not to take industrial action, has driven a wedge between the criminal Bar’s leadership and their solicitor counterparts that may never heal, especially after last year’s U-turn that brought accusations of back-stabbing and treachery aimed squarely at the Bar.

Yet, in stark contrast to their leaders, the rank and file of legal aid practitioners appear as united as ever in their opposition to the cuts.

The news that Merseyside solicitors and barristers had unanimously decided not to undertake any legal aid work under new rates, set to be introduced on 1 July, was swiftly followed by an announcement that criminal solicitors in Cardiff would also decline new work from next week.

More regional meetings are planned over the coming days between solicitors and barristers, while the CSLA has yet to announce the results of its ballot for industrial action, although the result long seems a forgone conclusion. So, despite the outbreak of a war of words towards the end of last week, individual members, chambers, and law firms have found the unity needed and lacking from their respective lawyers-in-chief.

It is still too soon to say for sure if the declarations from Liverpool and Cardiff will spread like wildfire across the country, but if they do, Tony Cross and the CBA may well be left out in the cold, unable to influence the course of events. Should the revolution suggested by the former Court of Appeal judge Sir Anthony Hooper catch hold, though, direct action would still need to be organised and sustained if it is to have any chance of bringing the justice system to a complete standstill and force the Lord Chancellor back to the negotiating table.

Gove may not yet be barring the gates of 102 Petty France from an advancing horde of angry lawyers but it is clear that legal aid practitioners are mad as Hell. Whether they want take it anymore is up to them.

This blog post was first published in Solicitors Journal on 26 June 2015 and is reproduced with kind permission