Following the introduction last month of new fees for criminal legal aid work, solicitors in Northern Ireland have withdrawn their services in Crown court cases.

Pearse MacDermott, executive member of the Solicitors Criminal Bar Association told the Gazette that the rates of pay for Crown court work have been reduced in real terms by 54%.

The rationale for the cuts, given by a spokesman for the Northern Ireland Department of Justice, will sound familiar to criminal lawyers in England and Wales facing similar fee reductions.

He said that spending on Crown court legal aid has more than tripled over the last decade, rising from £13.7m in 2000/01 to £44.7m in 2009/10, and public expenditure cannot continue.

The cuts have to be seen in the context of Northern Ireland’s legal aid budget, which has been cut from £104 million in 2009 to £75m by 2012/13.

In response to the cuts, criminal defence solicitors in Northern Ireland have stopped doing Crown court work in protest over the fees, because they say they cannot provide a proper service to their clients for the rate.

MacDermott said that almost 100% of legal aid solicitors have all individually decided to take action.

He said so far 74 cases have been returned to the Crown court without a solicitor on record, though no trials have been affected.

While the shrinking legal aid budget and reduced fees are common to lawyers in England and Wales, and in Northern Ireland, the response of the lawyers on the mainland and in Northern Ireland have been very different.

The lawyers in England and Wales have opted for a quieter strategy of lobbying, rather than taking the direction action of their colleagues in Northern Ireland.

Lawyers as a profession are loathe to take the action that those in Northern Ireland feel they have been driven to, because of the public service nature of their work.

Two other factors can militate against lawyers taking strike action.

Firstly, the lack of solidarity. Firms are put off the idea of the idea of refusing work because of the fear that they will lose the client concerned to a rival firm.

Secondly, there is the Office of Fair Trading and competition laws, which prevent corporate entities from taking concerted action that could affect the market in which they operate.

The OFT has the power to fine entities up to 10% of their turnover, if they act in breach of the law.

But does strike action (forgive me for using the forbidden word) by lawyers actually work to change the government’s will?

Well it seemed to for the bar in England and Wales, when they refused to accept instructions in very high cost criminal cases in 2008, because they regarded the fees as being too low. Their action prompted the Legal Services Commission to increase the fees by 10%.

I am reliably informed by the Criminal Law Solicitors’ Association director, Rodney Warren, that back in 2001 there was a stand off between criminal legal aid solicitors and the LSC over the terms of a new general criminal contract.

Chancery Lane, which was in negotiations with the LSC over the terms of the contract, told the profession that it would advise them when it had achieved the best result. Until that time, the profession refused to sign the new contracts.

Eventually, the Law Society and LSC reached an agreement with the profession winning a number of key concessions.

But a smaller protest taken in 2007 by the duty solicitors in the Reading area, who made themselves unavailable for work on a specific day, received written warnings from the LSC threatening that is they did so again, they would receive contract notices, which in effect terminate their contracts.

It seems the key to the success of direct action is solidarity – when the criminal solicitors in England stood together and stood firm, they were successful, and when the bar stood together it too achieved a better outcome.

So will the strike action in Northern Ireland result in increased Crown court fees, or will the lobbying approach in England and Wales be effective?

Both remain to be seen.

But the hope is that it will not be the impact of the fee cuts and legal aid changes on vulnerable people denied access to justice, that provides the strongest demonstration against the actions of the two governments, because by then it will be too late.