Crumbling Justice System

The new MoJ Permanent Secretary might feel there's much of a problem with her department, but a former Attorney General begs to differ. No doubt we all recall that one of the consequences of the Brexit shenanigans was a purging of decent 'one nation' Tories like Ken Clarke and Dominic Grieve. I notice the latter fired back at the weekend with a powerful piece in the Guardian:- 

I've seen how the UK justice system is crumbling. Why doesn't the government take action?

From decrepit court buildings to legal aid cuts, the service has been brought to its knees. And there’s little hope of change.

When I first started at the bar in the early 1980s, my practice was largely publicly funded by legal aid and much of it was crime and family work. I travelled across London and south-east England representing clients in crown, county and magistrates courts. Most of these buildings were Victorian and lacked the facilities to cope with the growing volume of criminal and civil cases.

But there were signs of change. At Maidstone, where I was a frequent visitor, the Queen came to open the new court centre. She spoke of how the provision of justice was the essential first “social service” provided by the state, and central to her coronation oath. The resident judge, John Streeter, had worked hard to get a building that could help deliver an effective justice system. There were many more courts; rooms for consultations with clients; and a bar mess, where, apart from being able to buy hot food, there was the privacy to get advice from colleagues and to resolve issues with one’s opponent. A couple of years after it opened, visiting officials of the Lord Chancellor’s Department were holding it up as an exemplar for the future, noting that it had a reputation for efficiency and high professional standards of delivery.

When I was attorney general from 2010 to 2014, I returned there on a visit to the Crown Prosecution Service and to see the judges. The contrast could not have been greater. The building looked tired and poorly maintained. There were water leaks. The facilities for advocates were largely gone, and with them much of the sense of purpose and camaraderie I remembered. The judges were no better off. Most had brought their lunch in plastic containers from home.

While it must be right that cuts in services have to start with things that will be seen as personal comforts, the state of that court and others I have seen since – and the general state of morale among judges, court staff, barristers and solicitors carrying out these areas of work – point to a major crisis in our justice system.

This can also be seen in the Prison Service, with its overcrowding and its inability to deliver effective rehabilitation regimes or control the spread of Covid. At its root are a series of decisions made by successive governments – going back over at least two decades – to either hold back on the increases enjoyed by other areas of public expenditure or, after the 2008 financial crisis, to cut the justice budget more deeply than anywhere else.

In real terms, the reduction in spending overall between 2010 and 2019 has been about 25%. Given that, in that time, the population of England and Wales has risen 7%, and the prison population has largely remained at over 80,000, any cuts to the criminal justice system were going to be hard to achieve. In the run-up to the 2010 election, the then justice secretary, Jack Straw, who I shadowed, could see the looming crisis and facilitated better pre-election briefings for me from civil servants than had been done before. They were sobering.

Yet at the time, much of the Conservative policy on prison reform, and trying to decrease prison numbers, was being diverted by the need to fight off a tabloid-inspired campaign to make us buy prison ships to cater for increasing prison numbers as a result of tougher sentencing. This policy was plainly incapable of delivering value for money. (I note that the new police, crime, sentencing and courts bill is about to pile more pressure on prison numbers.)

After 2010 the largest percentage of cuts fell on legal aid and the budget of the CPS, the latter of which came under my remit as attorney general. The CPS, under Keir Starmer’s leadership, responded very well in streamlining its operations and still maintaining conviction rates – helped by an unexpected downturn in the number of crown court trials.

But all efficiencies have their limits. When in 2013 we successfully persuaded the Treasury to impose a far smaller cut than what had been demanded, it was obvious that if this continued there would be problems, as became evident later with complaints about falling conviction rates and collapsing cases.

Yet the worst consequences come from the treatment of the legal aid paid to advocates and solicitors for their work. This was reduced from a total of almost £2.2bn in 2010 to £1.7bn by 2019. Despite trying to minimise the worst effects of these cuts, and a recent small budget increase, the blunt reality is that for most criminal and family related work, the earnings are now so low that any lawyer would think twice about choosing these fields as a career option.

I can think of no other professions where the remuneration rates have been almost static for 30 years. I was pleased as attorney general to champion pro bono (unpaid) work and schemes to deliver civil legal aid through law centres, but none of this can compensate for the cutbacks.

For the ordinary public who encounter the justice system, its growing inadequacies and delays – and the injustice that can flow from them – are real. Last month, the Secret Barrister spoke of a case of serious domestic violence first reported by his client, the alleged victim, in 2017. In large part because of cuts to the police, the CPS and the courts, and exacerbated by the pandemic, the case has still not been heard in court. In all this time the defendant – an allegedly violent, manipulative man – has remained free, and the complainant has been unable to move on with her life.

It is sometimes suggested that the cost of our common law justice system had become excessive by the standards of civil law western democracies. But this is not supported by the evidence: in 2016 the Netherlands was spending €689 (£585) per head on justice, and Denmark €338, compared with €150 here.

Most of the justice secretaries I have known have privately acknowledged that their department is systemically short of resources. But because of the way the Treasury and government operates, and the difficulty of showing financial effectiveness in an entirely demand-driven service with unpredictable fluctuations, those secretaries have resorted at best to damage limitation, and at worst to currying favour by volunteering cuts. There are seen to be few votes to gain for a successful justice system.

So I fear we are unlikely to see any significant change – though it is urgently needed to maintain the foundations of a civilised society. Far from being able to pride ourselves on the excellence of our system of justice, it is in danger of turning into a whited sepulchre: but as the external appearances are being maintained, few in government are noticing or appear bothered.

Meanwhile we should stop being surprised at the increasing stories about the failings of the system, because the reasons are obvious.

Dominic Grieve QC served as shadow home secretary from 2008 to 2009 and attorney general for England and Wales from 2010 to 2014