Newton Emerson: Striking lawyers don’t tend to evoke much public sympathy

Lawyers are not particularly disliked by the public – journalists and politicians score lowest in popularity polls. But criminals are more unpopular than them all, so when the legal profession strikes over fees for criminal defence work, public sympathy is practically non-existent.The public is also largely unmoved by the impact of strikes on the courts. Most people never have any direct dealings with the criminal justice system and cannot relate to the agony of a delayed trial for victims and witnesses.Justice ministers at Stormont have benefited from this indifference in several lengthy disputes, most recently in the first six months of this year. Irish governments seem less willing to face the profession down. As so often, North and south appear oblivious to pertinent developments either side of the Border.Justice was devolved to Stormont in 2010 under a deal that requires the minister to be appointed by a cross-community assembly vote. That means the post has almost always been held by Alliance; the only exception was a 10-month period in 2016 when it was held by an independent unionist.READ MOREAlliance leader David Ford was justice minister from 2010 until 2016. He inherited a legal aid bill that had doubled over the preceding five years. To bring it under control he cut rates by up to 25 per cent, arguing this merely equalised spending with per capita levels in England and Wales. To restrain spending in the longer term, he proposed creating a network of “legal clinics” offering free advice on civil matters. This model is operated across the world, usually in partnership with universities, who use it to train law students.The legal profession was aghast at both measures and in 2011 embarked on an unprecedented strike. Solicitors and barristers withdrew from criminal defence work, refusing to take on new cases.Five months passed while Ford stood his ground and the courts almost ground to a halt. The legal profession, represented by Northern Ireland’s Law Society and Bar Council, finally agreed to accept all the cuts, provided they were phased in and allowances were made for the most complicated cases. Dropping clinics was not an explicit condition of this agreement but it removed the financial need for the proposal and it was quietly shelved within the year.Ford kept up the pressure on solicitors and barristers by lifting the secrecy on legal aid recipients. Anonymised tables were published during the strike; individuals and firms were identified from 2012. The media took great delight reporting the earnings of prominent figures and asking if a handful of firms were monopolising the budget. The profession despised this exposure and managed to have it stopped under EU privacy laws in 2016.The freeze Ford implemented on legal aid rates saw their value plummet in real terms over subsequent years. In November 2024 this drove barristers to limited industrial action, with solicitors following three months later.Whether standing up to the legal profession or giving in to it, ministers North and south have missed the opportunity for reformNaomi Long, the Alliance leader and justice minister, offered a reasonable increase but it was nowhere close to what was demanded. She stood her ground up to and throughout this year’s all-out strike. She also floated a possible reform, revealing that her department was considering the merits of a public defender office. This would be as unpopular with the legal profession as Ford’s clinics. Although most types of public defender system do not replace legal aid for private firms, they do keep rates down by plugging gaps in private coverage. Long told Stormont she was “not enamoured” by the idea but she left the suggestion hanging.Ireland’s Department of Justice considered a public defender system from 2021 before deciding against it 2024 after objections from professional bodies.To make the savings it was seeking, the department has instead been wrestling with barristers and solicitors over legal aid fees, leading to serious although brief strikes as ministers promptly give in to them, including it seems this week.Stormont, or more precisely the Alliance Party, may hold its nerve better during a strike but there is scant evidence this produces better outcomes. While legal aid spending has been successfully held down during devolution, it is still three times higher per capita than in the Republic. Court backlogs and delays are as severe as in the Republic, if not worse.[ O’Callaghan’s amended offer in legal aid dispute ‘obviously unsustainable’, solicitor saysOpens in new window ]The real problem is the similarity in approaches. Whether standing up to the legal profession or giving in to it, ministers North and south have missed the opportunity for reform.Legal clinics have a proven ability to revolutionise how disadvantaged communities engage with the law. Public defender systems break down the archaic distinction between solicitors and barristers. These are only two examples of the potential for transformation.Reform should not be treated as the alternative to controlling costs. We should have both. In the end, we cannot have one without the other.