Barristers pledge to step up their action over legal aid reforms after an opposition vote to scrap the new fee regime was defeated.

Criminal barristers at more than 100 sets have been refusing new Crown court cases since 1 April, when changes to the Advocates’ Graduated Fee Scheme (AFGS) were introduced, in protest over the reform and parlous state of the criminal justice system.

Criticism from the Speaker, John Bercow MP, for the failure to timetable a debate on the subject led to a parliamentary debate in which a Labour motion to reverse the change was defeated by 300 votes to 253 (see Westminster Watch analysis).

Following the vote, the Criminal Bar Association (CBA) called on its members to hold ‘days of action’ on which they will not attend court and to operate a ‘no returns’ policy, under which they will not take cases for colleagues with diary clashes.

CBA Chair, Angela Rafferty QC, said: ‘We now consider it is necessary to escalate this action in order to show that we really have reached breaking point.’

Rafferty said: ‘We still seek a resolution and will actively take part in all efforts to bring this situation to an end. However there must be a recognition that investment is required in the AGFS and the criminal justice system.’

Defending the new pay regime, justice minister and former commercial barrister Lucy Frazer QC MP told Parliament it had been designed ‘in close cooperation with the Bar leadership’ and was ‘more advantageous’ to barristers than the scheme it replaced. She denied that it introduced a pay cut, stating it was cost neutral, and said the government had committed to review it in 18 to 24 months.

Guidance for judges dealing with cases affected by the action, issued by the senior presiding judge for England and Wales, Lady Justice Macur, emphasised the need to be neutral and independent. It said the ‘duty of the judge is to secure a fair trial’ dealing with each case on its own merits.

Reports on social media suggested that a judge in Cardiff had revoked a representation order for a defendant left without an advocate, as barristers would not take the case and the solicitors supported the action.

The outgoing President of the Family Division, Sir James Munby, waded into the row. In a speech to the Family Law Bar Association he recognised the ‘great crisis’ facing the criminal Bar, but cautioned barristers against being lured by ‘siren voices’ into protest action. He said: ‘We must take the long view. We must be careful that we navigate the storm without ending up shipwrecked.’

Rafferty said the campaign continues: ‘We must do all we can to ensure we have a viable future. We are meeting with the Ministry of Justice, our aims are to find a way forward.’

Update: On Thursday 24 May the CBA announced a 'breakthrough' offer equating to £15m extra investment in the AGFS scheme had been made by the MoJ, which will be put to a members' ballot. The 'no returns' policy is suspended until 12 June with immediate effect, but CBA-recommended action on new cases under the AGFS scheme continues. See: www.criminalbar.com/resources/news/members-announcement-2/