London law firm Mishcon de Reya has been instructed by the Criminal Bar Association (CBA) to challenge a directive to record the names of defence barristers who refuse to attend hearings in support of strike action aimed at securing improved long-term legal aid remuneration.
 
The move follows a report by the Law Society Gazette last week that the Courts and Tribunals Service – a government agency – had instructed court staff to report the names of barristers who do not attend hearings because they are participating in the CBA's Days of Action to Deputy Prime Minister and justice secretary Dominic Raab.
 
The CBA has instructed Mishcon and specialist leading counsel, understood to be Anya Proops QC of 11 KBW, on a pro bono basis to consider if this amounts to unlawful processing of personal data. The firm has also written to the Ministry of Justice (MoJ) to raise concerns and to the Information Commissioner urging an investigation.
 
In a letter to the MoJ, CBA chair Jo Sidhu QC said his members were ‘understandably concerned’ to hear reports that the Ministry of Justice had instructed court staff to name all barristers who do not attend court hearings, saying that the CBA took such reports extremely seriously.
 
He added: ‘Intimidatory tactics such as these are designed to cause distress and are a diversion from what must happen: a swift and fair settlement of our reasonable demands in relation to criminal defence advocacy fees under legal aid, in order to conclude this dispute in the long-term interests of the criminal justice system.’

Sidhu said the MoJ's claim that there had been a misapprehension due to confusing language in the request for data ‘beggars belief’.

However, the MoJ has denied it is recording the names of striking barristers stating that is monitoring the number of disrupted cases to assess their impact on the justice system.

The CBA’s ‘Days of Action’ are part of a rolling campaign of protests which have seen individual criminal barristers support better legal aid remuneration for defence work, alongside refusing to take new instructions and existing refusals to cover other defence barristers’ work – the so-called ‘no returns’ policy. The action does not affect prosecutors or barristers instructed by corporate law firms. 
 
The strike action follows an independent report, authored by former senior competition lawyer Sir Christopher Bellamy, which called for immediate long-term sustainable investment in criminal legal aid due to a steep fall in the number of practising criminal barristers because of persistent underfunding. The CBA, together with others, support a more extensive implementation of Bellamy’s report, which they say is needed to safeguard the long-term survival of the sector. 
 
They reject Ministry of Justice statements that proposed 15% increases to certain legal aid fees will address the issue, saying this does not go far enough and fails to take the effect of rising inflation into account, for example. Subsequently, Bellamy has become an MOJ minister in the House of Lords, replacing Lord Wolfson of Tredegar QC, who resigned over the government’s handling of the ‘partygate’ allegations. 
 
Bellamy will join the MOJ ministerial team responsible for implementing his report, led by Raab.