Chairman's Update - 25 June 2015

25 June 2015

The Secretary of State for Justice made his first speech in his new role on 23rd June.  It was entitled "What does a one nation justice policy look like?"  It followed a speech by the Prime Minister, delivered the day before, in which he had set out his vision for "One nation Britain."  It is clear, therefore, that these speeches were part of a wide ranging social and justice policy initiative designed, as Mr Gove said " make sure every citizen of the United Kingdom felt they were equal partners in One Nation." 

Before embarking on his criticisms of the way in which the justice system operates, he observed that it was "critically important" to stress what needs to be "protected, preserved and enhanced."  He then moved on to emphasise the distinctiveness of the role of Lord Chancellor saying that it was different to other Cabinet posts.  This is a clear reference to a passage from the report of the House of Lords Select Committee on the Constitution, which I quoted in my speech of welcome when the Lord Chancellor was sworn in.  The significance of the quotation is that their Lordships recognised that the office of Lord Chancellor entailed responsibilities not shared by other members of the Cabinet.  They wrote this:

"The Lord Chancellor should be a politician with significant ministerial or other experience to ensure that they have sufficient authority and seniority to uphold the rule of law in Cabinet, and in dealings with ministerial colleagues."

This observation was immediately preceded by a recognition that the most important thing to defend in his new job was the rule of law rather than a specific political position.

He described the rule of law as "..the most precious asset of any civilised society" and went on to analyse its fundamental importance as the bulwark against the oppression of the weak by the strong, the fact that it underpinned free speech and the essential liberties of the individual. 

In words that will be music to the ears of barristers, he stressed the importance of a healthy independent Bar to ensure high quality advocacy and extolled the special virtues of the adversarial criminal justice system.  Finally, he praised the contribution made by those undertaking international practice who provided the finest legal provision in the world and brought in over £20 billion to the Exchequer every year.  Well, so much for the good points.  He next went on to his criticisms of the system. 

He said that the courts were trapped in antiquated ways of working and stressed that those who were unable to afford the gold standard of British justice had to put up with a creaking, outdated system to see justice done in their lives.  He made observations, familiar to all criminal practitioners, of prisoners arriving late, papers missing and broken video links.  He could have added interpreters speaking the wrong language or failing to attend at all.  What he perhaps failed to acknowledge was that the reason for many of these problems is that the system had been chronically underfunded for years and that poorly negotiated contracts with private providers of services to the court system have led to many delays, which cause immense frustration to witnesses, jurors, court staff, judges, the Bar and those solicitors who attend court. 

Having expatiated on the phenomenon of the cracked trial, he spoke of the need for the reforms proposed by Sir Brian Leveson to be implemented as soon as possible.  In a radio interview following the delivery of his speech, he spoke of his confidence that the Treasury would accede to his Department's business case for the grant of £700m in order to drive these reforms to fruition.  Although I am not privy to those discussions, I have no reason to believe that the confidence of the Secretary  of State is misplaced and that the funds required will be provided. 

In relation to civil justice, he spoke about the need to think of novel ways of dispute resolution in small claims and the way online resources could be used to speed up dispute resolution "more proportionately."  He also spoke about freeing family judges to do the most important work by the use of online solutions and  telephone and video hearings.

He mentioned the need to rationalise the use of the court estate.  It is likely that there will be a culling of those courts which achieve very low occupancy figures.  It is, of course, vital to ensure that courts remain geographically accessible to those who need to use them.  On the other hand, a promise to deliver a more efficient court estate than to make further big changes in the legal aid system is likely to find favour at the Bar.  My view is that the financial landscape has so changed over the last few years that, in order to preserve what really matters, namely access to justice in the form of such legal aid as currently exists, we have little alternative but to recognise that solutions we would have found unpalatable some years ago, can no longer be avoided. 

Finally, under the heading of "Social Justice at the Heart of Our Justice System", the Secretary of State spoke about legal aid.  He emphasised that, on attaining office, he had sought to put in place guaranteed access to legal advice in cases of the greatest need.  He also pointed out that he had protected the Criminal Bar from further cuts so that "..the high quality advocacy  they provide could be supported."

In a highly important passage of his speech, he said that he was keen to ensure that the highest quality advocates were instructed in all cases and that he has set in train immediate work to address the problems described in the report of Sir Bill Jeffrey.  He also re-iterated his commitment to monitor the impact of changes to legal aid. 

Finally, although he gave credit to the Bar and the top solicitors' firms for their pro-bono work, he said that more needs to be done and that it was clear to him that it was "…fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on minimum wage." 

There are those who might think that the facts that over 3,600 barristers sit on the Bar Pro-Bono Unit volunteer panel - this includes one third of all QCs, that the BPBU, which is funded almost entirely by the profession, seeks no public funding at all and that the BPBU gave legal assistance in over 1,120 cases to members of the public in 2014 is the clearest possible evidence of a commitment by the Bar to the provision of legal services to the most disadvantaged in society. 

However, I suppose there is always more we can do.  One thing is clear, however, and that is that pro-bono work, whilst of great social utility, can never be any sort of substitute for the provision of a fully and properly funded legal aid system.  In addition, there may well be those with a sardonic smile on their lips when they hear a Minister in a Government that has butchered legal aid provision and hiked court fees, castigating the Bar for its failure to do more for nothing.

On a discordant note, it was hugely disappointing to hear Mr Gove, on the radio, trotting out the canard, which Ministers have used on so many occasions; that we have the most expensive legal aid system in Europe and the common law world.  Let me, rather wearily, again set the record straight.  The cost of the judicial system in England Walesin 2012was 0.31% of GDP per capita.  In Europe, it was 0.33%.  Germany has 19,832 professional judges as against 2,016 in England and Wales and the overall cost of the justice system in England and Wales was £1.58 per week, less than the price of a cup of coffee!

I do not want to suggest that everything in the garden is rosy.  In order that the IT revolution actually works, the four elements in the criminal justice system; that is to say the police, the CPS, HMCTS and NOMS will all have to have systems that talk to each other. The position will have to be mirrored in the civil and family justice systems too.   In addition, the software will have to be written very carefully.  The record of Government procurement and implementation of large IT systems is nothing short of disastrous.  However, I was promised by the Chief Executive of HMCTS that the users of the systems, that is to say the Bar and the solicitors will be fully consulted in the writing and implementation of this software and in Fulford LJ to lead this project, we have someone who has always been well ahead of the game as a barrister and judge and is fully familiar with the requirements of court users. 

As I said earlier, there is much to be done to rectify the effects of chronic shortages of money in our judicial system.  The fact, however, that we have a Lord Chancellor who has evinced, in such an open way, his commitment to the Rule of Law, the independent Bar and the need to ensure high quality advocacy services in our courts, is welcome.  In addition, the commitment to the provision of substantial funds to develop innovatory ideas for cost and money saving in order to preserve the existence and extent of legal aid, can only be a good thing.

Alistair MacDonald QC
Chairman of the Bar