Anatomy of a legal strike: How lawyers are bringing the system to its knees

Legal strike: How solicitors plan to bring the system to its knees
Legal strike: How solicitors plan to bring the system to its knees
Ian Dunt By

Today is the first day of a wildcat legal strike across the country. Those who find themselves arrested will struggle to get legal aid representation. Within days, the courts system could grind to a halt.

It is happening across England and Wales. The strike will be followed in Merseyside, Greater Manchester, London, Devon, Leeds, Cardiff, Halifax, Derby, Birmingham, Sunderland, north and south Tyneside, Newcastle, Huddersfield, Dewsbury, Bradford, Hull, Kent and Reading. It's impact will be felt everywhere.

It is not technically a strike. Lawyers can't strike. Instead, meetings across the country saw solicitors and barristers gather together and come to individual decisions about whether they would back the action. It is a convoluted process with a complex way of refusing labour.

Anyone arrested today and taken to a police station will be told what they are always told, that they are entitled to a free and independent lawyer. If they know a legal aid lawyer they can contact them, if they do not they can use the solicitor on the duty rota.


No-returns: The barrister policy which could bring courts to a standstill

Wildfire: How the legal strike spread from Liverpool to all of England and Wales

Courts will struggle to function as the legal strike bites

The duty solicitor will still be working. Solicitors are contractually obliged to continue to cover their duty slots. But those who know the lawyer they want will not be able to get their help. Instead, they'll likely be given a leaflet from striking lawyers which reads:

"Until the government agree to pay us a fee that allows us to properly represent you and do the best we can for you, [we] will not be attending police stations.

"The law provides that the government make a solicitor available to you and the police must ask you before the interview if you want one.

"If you cannot have a solicitor then the police might ask you to waive your right to one. The choice is yours of course but you do not have to be interviewed without a solicitor. This might mean the police cannot interview you at all."

Solicitors are advised to not even give clients free advice

Internal guidance sent out to solicitors taking part in the action reads:

"No own-client police station cases will be accepted on a legally aided basis from midnight on the 30th June 2015. Accordingly, we will not attend the police station to advise prior to interview.

"We will not provide telephone advice. We will not advise on any aspects whatsoever.

"We may want to speak with the client to explain the nature of our action. However, be careful not to advise. If you are deemed to have advised then you may be liable for any action/inaction thereafter. Similarly, the client may be considered to have received advice which may prejudice the client in any later applications regarding his treatment and the admissibility of the interview."

The contractual obligation to provide a duty solicitor seems like it makes the entire action redundant, but few expect them to be able to keep up. Most people in police stations do have their own lawyer. With all these cases funnelled into the duty rota system, it is unlikely to be able to handle demand. It's the equivalent of closing five Tube lines. The others can't handle the additional strain.

Those arrested will still be able to access a duty solicitor, but they're unlikely to be available

Those who arrive in court face the same problem. When they phone or see their lawyer they'll be told there's no legal aid representation until the government relents. Again there will be a duty solicitor present, but they can only deal with relatively basic matters.

The internal guidance to solicitors is necessarily quite harsh. They are likely to already be in court dealing with the cases they started before midnight last night. But if they come across their clients, they must refuse to help. It reads:

"We are likely to be present at court dealing with existing matters and it may be difficult to avoid clients appearing for the first time and expecting representation. Accordingly, it will be unwise to offer any advice, even for free since this may be deemed advice for which we will later be held accountable. Similarly, the client may be deemed to have benefited from advice which may prejudice him/her in any later applications.

"The client may be told about the reason for the refusal to accept instructions on a legally aided basis but stop short of offering any advice.

"There will be no excuses made for representing clients due to age, vulnerability, nature of charges etc. It is considered that this will quickly lead to a breakdown of the intended protocol."

The magistrates' courts are likely to buckle under the strain. All cases start in a magistrate's court, from which many of them are sent on to the crown court, where barristers are instructed to appear. When the magistrate's court buckles, the system falls. 

But will it? The effectiveness of the strike depends on a degree of solidarity between solicitors firms which has historically failed to materialise. The temptation to swoop in and take up all the cases other solicitors have left is usually too great. But this time the biggest firms in the country have signed up to the strike. The remaining firms which have not signed up "won't touch the sides", an organiser tells me.

Ostensibly, a successful solicitors' strike would make action by barristers irrelevant. If the solicitors hold firm, there'll be no work for barristers to do anyway. But in truth the action needs barrister support to seal the deal. In Liverpool, where a shock statement kick-started the current action, barristers agreed to join the strike and additionally implemented a no-returns policy where they would not cover for each other when not serving on a case. It was more than enough to bring the entire system down.

Michael Gove could face a baptism of fire as justice secretary if the strike suceeeds

But that level of solicitor-barrister solidarity is not always present in other parts of the country. The barristers' national body, the Criminal Bar Association (CBA), is not backing action, despite overwhelming support from its members. Its chairman, Tony Cross, spoke at the Manchester meeting on Monday night and urged people not to strike. He was booed off. Another executive member spoke in support. It's clear the leadership is split. There are rumours of a CBA executive meeting in London last night but they wouldn't confirm it.

For most solicitors, this is about showing the government how reliant it is on their goodwill for the system to work. Every day they work pro-bono, as Michael Gove urged wealthy law firms to do. They are just not recognised for it. Instead, they say their fees are cut over and over again until it becomes commercially impossible to continue.

"They've privatised prisoner transport and court interpreters," one solicitor tells me, as an example. "We used to have a van per court to pick up prisoners. Now there's just one van full stop. They go round picking up prisoners and then drop them off at courts one by one. It takes ages. We sit there at court waiting until 1pm, not getting paid.

"Or take interpreters. Capita sends one to two or three courts. We wait all day for them and don't get paid.  Sometimes the case gets adjourned for the next day and we don't get paid at all. One fee: that's what a solicitor is paid. But we sit there, waiting with our client so we don't leave them alone and anxious in court."

That goodwill is about to be taken away. The creaky courts system is about to see what happens when the people who strive to keep it together withdraw their labour. Over the next few days we'll see if it can handle that level of disruption.

Comments

Load in comments
Politics @ Lunch

Friday lunchtime. Your Inbox. It's a date.