‘We understand’: Law Society issues guidance on bar action

The Law Society has said that it understands why criminal barristers are taking industrial action from next week, but has stopped short of calling for a similar response from solicitors.

From Monday, some criminal barristers will refuse to take on work where counsel instructed on the case becomes unavailable, following an overwhelming vote in support of a ‘no returns’ policy by Criminal Bar Association members last month.

The CBA balloted members on industrial action in response to the government’s decision to invest just an extra £135m a year into the criminal legal aid sector, the minimum recommended by Sir Christopher Bellamy in his review.

In guidance published today, the Law Society advises solicitors that collective action by the profession as a whole, or by local law societies or groups, may contravene competition law. While it is ‘not calling for such action to be taken’, it states: ‘It will not be surprising if many solicitors decided independently that, for professional or commercial reasons, they are unable to take on work where they cannot be confident either of finding an advocate for the case or of it being economically viable to undertake the advocacy in-house.’

The guidance states: ‘We would like to emphasise that we do not consider that the unavailability of counsel – for whatever reason – creates an obligation on a solicitor-advocate in the instructing firm to take over any of the formerly instructed barrister’s responsibilities, if they do not feel competent to do so.’

It adds: ‘We encourage all firms to consider their own circumstances in making any decision as to whether or not to take on the advocacy in a case where counsel has declined or ceased to act.’

Law Society president I. Stephanie Boyce said: ‘The Criminal Bar Association and the Law Society are, for different reasons, both of the view that the Ministry of Justice’s proposals are woefully inadequate to address the crisis in the criminal defence professions. Criminal law is no longer an attractive career option for young solicitors or barristers. Many of those who are currently practising in criminal law will be considering how long they are able to continue doing so. We understand why barristers have chosen to take this action.’