Debate contribution: Criminal Bar Association: Withdrawal of Services

Debate contribution by Mrs Naomi Long on 12 January 2026.

MLA

Mrs Naomi Long

Party at the time

Alliance Party

Date

12 January 2026

Type

Debate contribution (made as a minister)

Business

Ministerial Statements

Heading

Criminal Bar Association: Withdrawal of Services

Assembly identifier

Official Report component 5311850

Read the official Assembly record

Text

With your permission, Mr Deputy Speaker, I wish to make a statement on the Criminal Bar Association (CBA) service withdrawal. It is with profound disappointment that I make the statement. It is not one that I had anticipated making in the week in which legal aid fees have been increased by 16%, in the week in which an additional £6·15 million is being paid into bank accounts and in the week in which barristers are receiving £1·8 million of those funds. I know that many Members in the Chamber will be equally perplexed. The CBA's decision effectively to hold victims of crime and the wider justice system to ransom in order to leverage further significant fee increases is at odds with reality. It is at odds with the reality of what has taken place since my return to office, with the reality of what has been achieved and with the reality of what the CBA has itself agreed, and it is very much at odds with the reality of the trauma and suffering of the victims and witnesses who are being impacted on by the unreasonable and unwarranted withdrawal of service. The suffering of victims of crime should never be used as leverage. Trauma should never be a bargaining chip. It feels very much like the current situation, however. In recent days, I have heard the phrases "beleaguered profession" and "last resort". On the basis of current demand, however, the recent uplift will amount to an annual increase of £11·5 million in legal aid fees. That is no small increase. I am sure that the majority of the working public and those who work in the public sector would agree. It is no small increase in the context of the financial pressures facing the Department and the Executive. Today, my budget is over £220 million worse off than it would have been had it merely kept pace with inflation. All of us here know that those pressures will only increase in coming years, not least next year. It is not a small increase in the context of an existing £42 spend per capita on criminal legal aid, which is double the per capita spend of £21 in neighbouring jurisdictions such as Scotland, England and Wales. The CBA has failed to recognise that reality, and we are now entering yet another year in which victims and witnesses suffer unavoidable and indefinite delay. It is 14 months since the CBA action began. The scope of action has changed during that time, but it has done serious damage throughout the system and to the victims, witnesses and defendants — your constituents and mine — whom the system is supposed to serve. I commend and thank the Public Prosecution Service's (PPS) victim and witness care unit, the Commissioner for Victims of Crime, Victim Support, ASSIST NI, Nexus, Women's Aid and all the other voluntary-sector organisations that are actively supporting those affected by the service withdrawal for their work. Notwithstanding my desire to see an immediate return to full service, I call on the CBA to take cognisance of its professional duties and agree a derogation in the service withdrawal for cases in which there is acute distress, risk of harm or other serious impact on individual victims. That may be a vain hope in the context of previous refusals to allow derogations, but, while I respect the right to withdraw services, I believe that there is also a duty on us all to protect the most vulnerable and take ethical and sympathetic approaches. That is why most other public-service providers withdraw services for days, rather than indefinitely. Unlike the CBA, they seek to mitigate the impact on those whom the system is there to serve. That would not undermine its position; it would show a level of compassion for the vulnerable individuals whose right of access to justice is being most severely compromised. We are, of course, considering what other steps we may be able to take to support victims and witnesses, who are and will remain my priority. I have invited representatives of the support organisations and PPS NI to meet me to discuss options. The unfortunate reality is that the damage caused by the withdrawal will only increase with the escalated action that commenced last Monday. More cases are arising each day, and so the risks are mounting. There have been many calls in recent weeks for discussion and engagement to find a way to end the damaging withdrawal, and I offer reassurance that I have committed significant resources to resolution since the CBA commenced its action in November 2024. I have taken many steps to address the purported concerns of the CBA, and I remain engaged and continue to strive to find a resolution. Throughout the CBA action and before, we have been engaged, proactive, constructive and responsive. We have listened and have made commitments, and, as the 16% uplift shows, we have delivered on those commitments. We have done so in the context of ever-changing personnel leading discussions for the CBA; ever-changing and often unclear demands; inconsistent messaging; and reluctance, delay and procrastination in the provision of the evidence that is absolutely necessary to approve the use of public funds. That is in contrast to the Law Society and the solicitors' criminal Bar, which have worked with us to ensure that real progress has been achieved for their members and remain committed to continuing to do so. Fair, proportionate remuneration is critical to high-quality advice and representation. I have always been clear in my commitment to ensuring that that is what legal professionals receive. It is one of the main drivers of the reform programme that was already in train when the CBA first commenced action in November 2024. Key milestones for reform were set out in the programme delivery plan, which was shared even as the CBA escalated action last January. As Members will be aware, the conditions initially placed by the CBA on a full return to service were the publication of the fundamental review of criminal legal aid; the implementation of the recommended uplift; and the reform programme's being progressed. Yet, when I took the steps to deliver all three asks, the CBA continued with its withdrawal of service. The original recommendation for the 16% uplift extended only to criminal legal aid, but I approved the increase for the entirety of the legal aid framework. I went further still — much further than Judge Burgess recommended — and backdated the uplift to 1 December 2024. That was an unprecedented step — uplifts have never been retrospective — but I considered it justified and reasonable to apply the increase from the point at which I accepted the recommendations. Notwithstanding the very damaging effects of the withdrawal, I extended the backdated uplift to all members of the Bar, as well as solicitors. I did not want practitioners who were continuing to deliver services to suffer negative consequences because of the CBA action. That was not an insignificant step, but, again, the CBA continued with the withdrawal of service. By January, the ask had changed, and the service withdrawal was being linked to the full implementation of the fundamental review, an immediate uplift in fees and the abandonment of my proposed approach to cases left on the books. Again, I responded as I could: I began the necessary governance and legislative steps to implement the 16% uplift; delayed publication of the programme delivery plan to allow representations to be considered; and then reprioritised the plan to postpone the proposed review of cases left on the books. The professions were clear at that point: they wanted the working group established quickly and His Honour Judge Burgess to be appointed to lead that work. I made that appointment, and the working group has been meeting, but, again, the CBA did not return to full service. By April, we were told that development of the proposed refresher fee pilot would secure full return to service. We developed proposals that included fees over 100% higher than those recommended by Judge Burgess in his 24 August report and 20% higher than the CBA had requested in April 2025, but, again, the CBA did not return to full service. The obstruction was that CBA members wanted to claim the proposed refresher fee for a full day in court while also claiming fees for work undertaken in other courts during the same period of court time. In an effort to ensure the efficiency of the justice system, we adjusted the time period to which the full-day refresher fee applied, but still that appears not to have been enough to end the withdrawal of service. As I have said already, I am very keen to end the impasse. I have also said many times that service withdrawal means delay and additional delay means that defendants, whether guilty or innocent, must wait longer for their case to be resolved. Delay means greater risk of witness attrition and of people withdrawing co-operation. It means greater risk of victims not receiving justice and greater risk of justice coming too late. It means greater risk of harm to the public: risk that the innocent remain in custody longer than necessary and that the guilty go free. I really want to do all that I can to ensure that cases proceed and the justice system operates as it is supposed to. However, there are things that I simply cannot do. I cannot sanction payments from public funds for the same or overlapping periods of court time. I have a duty to uphold the principles of managing public resources and to ensure that value for money is being achieved. If we are paying for a period of someone’s time from public funds, we cannot also pay them for other work undertaken at the same time. No one can effectively deliver two services at once. That goes to the heart of good governance. It goes to the heart of ensuring that those whom legal aid is there to support — the actual recipients of legal aid — receive a quality service. Legal aid is provided so that those who cannot afford advice and representation get access to justice, and they deserve the same quality of service as any other client. I also cannot make a case for fee changes in the absence of evidence. Affordability is an issue for the Department — were it not, Members would rightly hold me and my officials to account — but it is not the primary issue in discussions with the CBA. The challenge, also rightly, is value for money and proving that value with robust evidence. I cannot depart from that principle. I cannot sanction spend from public moneys on the basis of someone’s word, however much we might value their professional prowess. The Solicitors' Criminal Bar Association (SCBA) is being asked in the same working group to meet the same evidential requirements, and it is delivering. Solicitors are doing so while continuing to deliver services to their clients. Arguably, a higher number of solicitors are affected by the current Crown Court fee structure than barristers, yet they remain in work. The committed and engaged approach of the Law Society and SCBA is delivering tangible results and proving our commitment to act where evidence justifies it. It has allowed us, for example, to introduce additional changes to police and criminal evidence (PACE) and parole fees and to develop a PACE pilot that we aim to commence in March. His Honour Judge Burgess was clear: the available evidence allowed him to make a recommendation for a 16% uplift. I accepted and implemented that uplift. The Bar is now saying that 16% is not enough and that a further uplift, which it is describing as "interim", is required. However, Judge Burgess was also clear that further changes to fees beyond that 16% would require further evidence, and the working group was set up to that end. That is the appropriate forum to take the work forward, not a picket line at the door of the Bar Library and not a war of attrition in which the most vulnerable of our citizens are used as weapons. Any further changes, which I am committed to making where they are required, must be based on the reality of the current landscape. The statement by the CBA that fees have not increased since 2005 does not reflect the reality of the current landscape. The recent 16% uplift was applied to the Crown Court legal aid framework that was agreed by the CBA through mediation in 2016. That mediated agreement reduced proposed significant cuts to fees that, as in England and Wales at the same time, were proposed in the interests of efficiency, value for money and sustainability. The picture has also not been static since then. We are not comparing like with like. Practice has changed. Indeed, the total legal aid expenditure on barrister costs for work in the Crown Court has increased by 76% since 2019-2020. Our current fee regime means that some members of the Bar are very well paid: the chair of the Bar has acknowledged that. I also agree with his assessment that some more junior members of the Bar are probably struggling, but it is convenient and overly simplistic to suggest that that is because of fee levels.

Fee levels are immaterial if you do not have the opportunity to earn, and, regrettably, that is very much the experience of some. Between April 2022 and September 2025, 74% of legal aid expenditure on counsel in the Crown Court went to just 22% of criminal defence counsel. In fact, one barrister received £3·89 million — as much as the total received by 53% of their colleagues put together. When it comes to junior members of the Bar, the real question therefore is not how much we pay for work but how that work and the associated funds are distributed to ensure a thriving, experienced and sustainable profession. I am committed to doing what I can to address that. Indeed, that goal is one of the key drivers behind the refresher fee pilot, which aims to promote career development by freeing up work and changing the profile of barristers working in the various court tiers for the benefit of junior and, in particular, female criminal defence barristers. That strategy will not work, of course, if multiple fees can be claimed for the same period of court time by the same individuals. I cannot address that imbalance alone: the profession must also take steps to promote career development and to ensure that the system does not perpetuate delay by being dependent on a few individuals working on a disproportionately large number of cases. It is not yet clear to me whether the Bar is taking steps to improve viability and towards a fairer distribution of cases and related funds, but I hope that its members will follow the example and leadership of their colleagues in the Law Society and take action to support career development and equality of opportunity. I also hope that the Bar will reflect on my request and reconsider this very damaging service withdrawal. I encourage it to reflect on the real progress that has been and can be made and to acknowledge how responsive my Department and I have been. I met members of the profession on 5 November and was heartened by what was a constructive engagement in which that progress was acknowledged and it was agreed that intensive engagement on the refresher fee pilot would take place over the remainder of that month. It was also agreed that I would meet members quarterly to improve communications, which I was happy to do. Instead, the CBA committee resigned en masse, and new leadership was elected. The latest CBA requirements for a full return to service were presented to us late on 26 November, and my officials met the CBA two days later to discuss them. An amended list of demands was presented just days prior to a further meeting with officials on 8 December, at which time a road map was agreed by all working group members to take forward all the outstanding issues, including those raised by the CBA. However, within a few days more, the CBA took the decision to escalate its action and to withdraw completely from the Crown Court, despite having agreed a way forward and being in the knowledge that the uplift and backdated payments were due to reach bank accounts in early January. That is hard to reconcile. My hope remains that the CBA members will return to full service and join us, the SCBA and others in the working group to progress change. The working group and the road map provide a real opportunity for collaborative delivery of a sustainable, viable system. I hope that the CBA and others with influence over it will see that. Last week, I took the unprecedented step of writing to all 219 barristers who were in receipt of Crown Court legal aid payments in the past 12 months, setting out clearly what has already been achieved through the working group and my willingness to work with the profession to bring the impasse to an end. I am pleased that the CBA has provided slightly more clarity on its current ask in response to that letter. I remain, as ever, committed to constructive engagement and am due to meet the chair and vice chair of the CBA this week. I hope that they are equally open to progress. Victims, witnesses and defendants deserve so much more, and we cannot deliver the service that they and wider society deserve if the system is continually brought to a halt. I have previously stated that that cycle simply cannot continue in the longer term, and I know, as will Members, that alternative models for delivery of services provided by the criminal Bar will have to be progressed at pace if the withdrawal does not conclude swiftly. As I have also said, that is not a step that I want to take, nor is it one that I would take lightly, but it is difficult, at this juncture, to see another way forward. I commend the statement to the House.

By the time the correspondence in question had been received by the Department, the opportunity to stave off the arrangement that was proposed had passed, because we had agreed a road map on 8 December. Everyone signed off on that, including the CBA and the Bar Council, and it was agreed as the way to take forward those discussions. There has been talk by the CBA and the Bar Council about mediation and a mediated approach. However, mediation will not get over the main hurdle, which is the lack of evidence to substantiate the demands that they have made. I took advice from Judge Burgess about the opportunity to seek mediation. It is his view that if we entered mediation, we would immediately hit the same roadblock, because his inability to get a resolution to the issue has been due not to a want of effort but a want of evidence to substantiate the claims that are being made.

There were a number of questions there. First, it was delayed because we had to go through a due diligence process. That was with the Committee, it had to be agreed by the Department of Finance and a business case had to be prepared. Did it contribute to the strike action? I do not believe so because when I met the then vice chair and chair of the CBA and the Bar Council, I was able to reassure them about the time frame for delivery. It was almost a month after that, when the new regime had taken over, that they decided to proceed with the strike action, despite being previously advised not to go down that route by the Bar Council. I do not think that the delay contributed to the strike, but, of course, I do not welcome any delay. It is, however, a reality that we have to provide robust evidence to the Department of Finance. On the evidence that has been provided in the independent report, there are differences between our analysis and that of the independent report. I dispute some of the content of the report. They have given us around 15 dip samples of how people's earnings and fees have operated, but that is not a cross section that is statistically significant, nor is it a basis upon which we can make decisions. Judge Burgess reached the conclusion that we could not move forward on that basis. We have encouraged people to come forward with further evidence and, indeed, developed an evidence-gathering template that will allow us to bring this stuff forward in a more coherent way. The Member asked another question, but I cannot recall what it was.

Yes, it was referred to as an interim uplift, and that has now happened. The truth is that we have gone beyond that 16%. As I have said, we have also looked at PACE fees and other things. Those were the things that Judge Burgess was talking about. As I said in my statement, I am not averse to further uplifts in criminal Bar fees, but they have to be evidenced. If I do not have sufficient evidence to ground a business case for an uplift in reality, I will be unable to approve one. Claims made last week that there should be a 100% uplift on fees are detached from the real world and the financial situation that we all face, but they are also detached from what people are currently paid for doing the same job in neighbouring jurisdictions.

Regulation of the professions is not the responsibility of the Department of Justice. That rests with the Department of Finance. However, where fee structures and legal aid structures can play a role in assisting people, we want to use the leverage to do that. You used the word "excel". Lots of working-class people and lots of women do excel at the Bar. The problem is that they often cannot access cases when they get to that level of qualification, because, as I pointed out, around 75% of the fees go to about 22% of the barristers. That hoarding of cases means that there are young people who are shut out of the profession and do not get the opportunity to practise their craft. That is an issue for them, which I am very sympathetic to, but it is also an issue for the sustainability of the profession, because, unless young people have adequate experience, they will not be able to take over the more complex cases from people who age out of the profession. There is the issue of people charging twice for the same period. The refresher fee pilot will ensure that, where a barrister is meant to be in the High Court, for example, they are not also nipping into the Magistrates' Court to do other work. That would allow that Magistrates' Court work to pass on to younger barristers, who would be able to cut their teeth and gain experience. That is a sensible solution to a problem that we have had. The hoarding of cases also impacts on the number of adjournments that we see in serious cases in Northern Ireland. There are 14 adjournments in the average criminal law case in Northern Ireland compared with seven in England and Wales. There has to be something that we can do to change that, and the refresher fee pilot, along with the other changes that we recommended in the plan, are there to do that. I am willing to look again at fees, but I do not think that fees are the reason why some young barristers are not able to survive as barristers.

You have all just had a session with the Finance Minister, who set out in fairly stark terms the budgetary situation that we face. The Department of Justice has, in the period since devolution but particularly in the past 10 years since the removal of the ring-fencing of the Department of Justice's budget, suffered significant reductions in comparison with other Departments. When you look at the fact that our budget is mainly demand led and, therefore, we cannot control the different pressures that arrive at our door, and at our constrained finances, you see that we face a fairly bleak picture in the next 12 months. However, despite the pressures that we have been under, last year, we set aside the full requirement for legal aid at the start of the year. That was the first time that we have been able to do that in the time that I have been in office and, indeed, I think, since devolution. We were able to set aside what we anticipated legal aid would cost as opposed to what happened in previous years, when we set aside a proportion for legal aid and then tried to uplift it gradually as we went through the quarterly reviews of the finances within Departments. We have also driven down the length of time that it takes to pay the profession, which has also been an issue of contention. We have managed to get that resolved. Given the context that we are in and all the pressures that we face, a 16% uplift, speedier payment, plus the other changes that we propose and my willingness to look at anywhere that there is real justification for other fees to be uplifted, is as far as anyone can rationally expect me to go.

No. The LCJ did not offer to mediate personally. I am sure that she would want me to stress that she would not get involved in this dispute. She did write to the Criminal Bar Association, the Bar Council and the Department suggesting that mediation may be a way forward. We declined that offer, because, unlike in 2016 when there was mediation, there is a road map and structure within which we can negotiate these issues.

To me, it would have been an enormous slight on His Honour Judge Burgess to say that we needed a further set of mediations when we already have a mediation process in place under the auspices of Judge Burgess in the working group. It would also be unfair on the members of, for example, the Law Society, the solicitors' criminal Bar and, indeed, other barristers, if I were to go off into a huddle with the Criminal Bar Association and look only at their issues to the exclusion of everyone else when they are the people who have withdrawn service while others have continued to do their everyday job and make that investment in victims and witnesses. That would not be appropriate. From my perspective, there is a tendency for people to assume that this is a dispute about pay in the way that an employed person may be in dispute with their employer. I am not the employer of anyone in the Bar. My role is to provide adequate remuneration in order that people who cannot afford to access justice are able to obtain the advocacy that they need to have their case heard and either defended or prosecuted in the courts. My focus is on the use of public funds and whether there is value for money. I cannot ignore the value-for-money element. While mediation seems like a solution, I ask this question: given that the Bar and the CBA, in particular, asked Judge Burgess to chair the working group, do we just continue with different modes of engagement until they find somebody willing to chair the group who agrees with everything that they ask for?

No, it does not, and I will tell you why. The people who do call-off contracts for government and, indeed, those who work for the PPS get paid significantly less than, for example, defence barristers in the same case. If you look at what somebody gets paid via legal aid to defend a case in court versus what somebody gets paid by the PPS to prosecute that case, you see that there is a significant discrepancy. That discrepancy should not exist, but there is no way that I can justify funding that discrepancy from the Justice Department's budget. Even with the increase to Departments' counsel fees — indeed, that may extend in due course to the PPS — those who act on their behalf will still be paid significantly lower rates than those who act through the legal aid system. That is not sustainable. We in the Department looked at a case involving a criminal prosecution in which the defence earned 10 times what the prosecuting barrister earned, despite having the same overheads and the same case complexity. All things being equal, those claiming through legal aid for the defence were earning a metric of about 10 times as much. That is not sustainable. Therefore, there is a difference between the fees. I will say this: when we look for barristers to work on call-off contracts for the public sector and, indeed, the PPS, there is no shortage of people willing to come forward and do that work, which shows that the remuneration is healthy.

I have already instructed my officials to look at options for the delivery of advocacy for those who are in receipt of legal aid in order to ensure that they are still able to access justice, which is my duty. My duty is not to barristers or solicitors, albeit, as part of a healthy justice system, I have a responsibility to ensure that it functions well and that includes working closely with the professions. My primary duty is to those in receipt of legal aid. I do not want to pre-empt what may happen at this stage by speculating on the options available, but all options are on the table, and we will have to consider them. What we cannot have, however, is the cycle of stop-go. It will not work in the justice system any more than it works in politics. It causes significant damage and comes at a significant cost. There is a financial cost to the stop-go in the Bar and its impact on the system. There is an emotional cost to those who are caught up in that, but that emotional cost also has a financial cost attached, because people will need more support from the organisations that are there to support them through the justice system. Providing that support will require more intensive investment. I am meeting those support organisations about that later this week to see whether there is more that we can do to ensure that we do not have victim and witness attrition as part of the overall process, where people simply walk away from cases and those cases are then allowed to fall by the wayside. There is a cost — a financial cost — to this, and there is no budget line for recovery in my budget. The delays that are being accumulated at this point will be delays that we will carry into the future, and they will do huge damage to the justice system. I am willing to look at all options, but my preference is to see the criminal Bar back at full service delivery. The differences between us can be resolved; in fact, the previous chair agreed with my analysis that that could happen in the month of November. I encourage the criminal Bar to get back to that point. A month would resolve its problems, and there is no reason that it cannot work while navigating the issues, just as the solicitors' criminal Bar does.

We are aware of a number of cases, and they are quite serious cases. Some will be higher-profile than others, but they include rape, serious domestic violence and serious sexual assault cases and cases involving child victims and witnesses. All are being held up and impeded by the action. The impact on delay, which we had already been working hard with justice system partners to address, will probably not be fully clear for some time, but, last week alone, 10 trials, 57 arraignments and 22 plain sentencing hearings were directly affected. The full withdrawal list last January meant that 164 trials were aborted; 328 sentencing hearings that could have concluded cases from the victims' perspective were aborted; 536 victims were stood down or informed that their case was not being heard; and 2,811 witnesses were stood down. By the end of January, the impact of the current withdrawal will be in the region of half those numbers, but it puts in perspective the significant impact that the withdrawal of service will have on victims, on witnesses and on the justice system in general. There is nothing to stop the CBA returning to full service, continuing to engage on the working group with Judge Burgess and my Department and re-engaging on that basis so that we can solve the issues in a manner that does no damage to the justice system or to the ethical integrity of the profession but focuses on ensuring public service delivery while ensuring that people are properly remunerated for the work that they do.

No, we are not on track, because, as the Member will know as a member of the Committee, we have had to re-profile the delivery of that programme, first, because of the intensive engagement that we have had around fee structures and, secondly, because the way in which we were going to deal with cases left on the books was a matter of contention for the CBA, as I mentioned earlier. While I do not believe that the overall income through legal aid is a significant amount of money, it was better to put that to the end of the programme rather than where it was, which was nearer the start of the programme. We have also had to consider reform of the taxing system, because that has become a more acute challenge for the Department and our finances in terms of transparency and accountability, which are at the heart of everything that we are trying to achieve. It is public money, and it has to be accounted for meaningfully. People may have a sense of what they are worth, but I have to account for that in a more substantive way than by people simply pulling numbers out of the air. I need to understand what the hourly rate is, how that is applied in different cases and how many hours are worked on those cases so that we can have a better and transparent understanding of why people are being paid those fees. That has delayed the implementation of the rest of the road map. Where we have had the opportunity to accelerate some of those elements, we have taken it. For example, the PACE issues and the parole pilot are two areas that we have been able to bring forward more quickly. There were also issues around travel costs for rural solicitors in particular, who identified those issues when I met them directly. We went away, found a solution to that and implemented that too. Are we keeping pace with where we had hoped to be when we introduced the plan? No. Are we keeping the Committee informed of how we have had to review the plan and why? We are, absolutely. We are still committed to the overall direction. It was not a plan that I plucked out of the air; first and foremost, it was a plan that Tom Burgess recommended. That was part of it, but other studies were done at the same time by the Department and others. The plan was a collation of that work, and it was consulted on extensively. We have to go with the evidence that we have and move in the right direction. In the long term, that will secure the sustainability and viability of the profession and the courts. At the moment, I simply feel that we are not getting the reciprocation of effort to deliver on that.

6,046 words. Text as published by the Northern Ireland Assembly.

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