For those working in the justice system, or campaigning on justice issues, it has been a tumultuous and often hideous few years. Whether in legal aid, probation services, or the courts, the combination of treasury cuts, anti-civil liberties rhetoric and political dogma favouring large commercial suppliers being carried through by a Ministry (MoJ) that lacks political sensitivity, savvy administrative competence and financial controls, respect for the independence of justice professions and positive relationships with its stakeholders has meant crisis upon crisis with no clear strategic endgame.
Being one of the lower political priorities of Government policy, however much it is recognised that the Justice system needs to be modernised, improved and its costs better managed (and there is much consensus on this across political divides), there has been no sense of any cohesive approach or strategy (beyond salami-slicing budgets) either from the MoJ or across Government and no effort to build on any consensus about what reforms are necessary to deliver both fairness and efficiency in the justice system.
However events of the past week give a few signs of optimism for change of direction.
Firstly, the appointment of Simon Hughes and Lord Faulks to the Ministry of Justice have been widely welcomed changes to the ministerial team – not least because the MoJ to date has had too few ministers to provide effective political leadership for the justice agenda, and its ministers have often seemed to lacked the necessary grasp of policy.
Lord McNally sought improvements in privacy/data/libel law, and operational improvements in the family and youth justice systems and made some headway on these issues; but his curmudgeonly style in debate, hyperbolic threats of economic Armageddon and uncertain grasp of technical briefs too often alienated people and added to the perception that the political leadership of the justice system lacked insight.
Ken Clarke, as Lord Chancellor, whilst professing “liberal” tendencies showed his trademark disinterest in technical policy detail or implementation management and little concern over the civil liberties implications of secret courts.
Whilst Clarke’s aggressively anti-lawyer successor Chris Grayling has brought from DWP his love of outsourcing to commercial services companies, and has now sought to make a huge (and hugely misinformed) political issue out judicial review, human rights and UK relations with the European legal order.
The arrival of new ministers, both steeped in technical legal skills and knowledge, respect for both common and European law justice principles, and a willingness to speak out against some of the worst excesses of MoJ policy-making, can only help in trying to move the MoJ beyond its current stalemates.
Secondly, the Justice Select Committee has announced a major inquiry into the Government’s first round of legal aid reforms and their impact – the LASPO Act which sought to reduce legal aid spend by “de-scoping” much ordinary civil law from the publicly funded legal advice system, and to prioritise public law, human rights and discrimination law as the focus for the legal aid system but has actually left the department with an under-spend on the civil legal aid budget and ‘gateways’ which even those still eligible for legal aid cannot get through.
The policy was an irrational approach to rationing legal aid, as citizens’ legal problems and the legal advice market do not conform to the patterns that the policy-makers have imposed. Most of the adverse consequences predicted not just by campaigners but also hidden away in the Government’s own impact assessments, such as more litigants in person, the closure of many a community law centre and specialist help units in CABx, the ongoing collapse of high street practices, less effective tribunals and no alternative routes for advice and redress, have come to pass.
The legal system and market have not had the mechanisms to find ways to service unmet needs, so citizens with legal problems just have to lump it – a growing class of what Professor Hazel Genn has called “lumpers” who, for want of early intervention often end up costing the state more (i.e., homelessness, criminal justice, and NHS costs).
The Select Committee’s inquiry is welcome, because if it finds that assumptions behind LASPO were off-piste and the impacts worse than feared, there is a remedial mechanism (hard fought for by campaigners) within the LASPO Act to make marginal adjustments to scope criteria. Ministers with open minds would be well advised to use this power.
Thirdly, the row over criminal legal aid is nearing its climax and last month something pretty unprecedented happened with Law Society members exercising a vote of “no-confidence” in their leadership’s tactics and negotiating positions with MoJ over legal aid contracts and policy.
This is hugely embarrassing to the Law Society, who in my view have done an excellent job trying to wring changes out of the MoJ under very difficult circumstances. But it also illustrates that the legal profession is not a single homogenous bloc and cannot be treated or managed as such – something also illustrated by individual sections of the Bar turning down complex crime work, and today’s day of action.
It may in fact strengthen the Law Society’s hands. Whilst views differs widely over the funding and management of criminal defence work, government still needs some sustainability and grudging co-operation with its supplier base for the Criminal Justice System to be able to operate at all.
So the Law Society vote can’t just be seen as an internal spat, but will also influence the dynamic as to how Government eventually settles the issue in the new year.
It might be that they (MoJ) go for a radical ‘Plan B’ to impose wide-scale cuts and restructuring – threats have been circulating about this, a possible wholesale restructuring of professional advocacy and its regulation under a single Regulator with the Law Society and Bar Council shorn of their links to regulatory bodies – existing in future only as voluntary membership associations, and defences services delivered through a few corporate conglomerates.
My guess though is that the MoJ will not have the stomach or capability for a Plan B approach and all that it will involve in terms of redacting Royal Charters, rewriting legislation and dealing with all the problems that will come with such political interference with the independence of the legal profession – itself a key tenet of the rule of law in advanced democracies. So they will have to work harder for a settlement with the profession as it is.
Fourthly, there has also been the welcome news in the probation sector that Serco and G4S are out of the game, and will even have to repay for poorly delivered contracts. The whole episode has largely bust the myth that such giant commercial services companies can deliver qualitatively and quantitively better and more cost effective justice services than the state can – a myth that has been driving much of the Government’s ‘payment-by-result’ criminal justice and rehabilitation reforms. No liberally minded reformer or campaigner can argue with the sentiments behind the Government’s much vaunted “rehabilitation revolution”, that the criminal justice system must do far more to help offenders turn way from crime rather than recycling them in, out and around an ever large prison estate with an ever larger prison population.
The problem with the rehabilitation revolution is that it’s just not happening and prison numbers and re-offending statistics remain stubbornly high. More searching questions need to be asked about why this is so, to get to the right solutions.
These may be only small signs for optimism that the agenda for justice will improve, but as an optimist I hope they can be built on. As the current coalition Government enters its final stage of this Parliament, there is pressing need to sort out the mess at the MoJ and for the sake of their credibility in Government, Liberal Democrats need to contribute more to justice policy than providing an ‘in Government block’ on repealing the Human Rights Act. And as I have argued elsewhere justice policy cannot operate in a silo – as the rule of law as operated through a well functioning justice system underpins pretty much everything else in economic and social policy, such as effective market regulation and a stable labour market, stable families and property relationships, safety from crime, consumer redress, and accountability in public services and administration. So whilst these issues never feature highly in manifesto or media commentariat headlines, getting it wrong will come with a political price both for this government and governance in general.