Law in a time of austerity
27 February 2016
Originally published in The Economist
Ministers frequently reverse decisions taken by their predecessors, sometimes wisely, often not. But it usually happens after an election has produced a change of government. What is remarkable about the justice ministry since last May is that the new Tory Lord Chancellor, Michael Gove, has been systematically undoing many signature policies of his Tory predecessor, Chris Grayling.
The two are now allies in the campaign to leave the European Union (see article). But on matters of justice they seem to disagree on almost everything. The latest example was Mr Gove’s decision to scrap a second round of cuts in legal aid for criminal cases. Mr Grayling wanted to reduce the number of firms of solicitors paid to offer 24-hour help at police stations to suspects from 1,600 to just 527, and to trim legal-aid fees in criminal cases by a further 8.75%. Lawyers fearing a loss of business complained loudly and threatened to sue. Mr Gove has shelved both measures.
In December he scrapped a mandatory criminal-courts charge that Mr Grayling, arguing that criminals should help pay for the administration of justice, had imposed on guilty defendants. Over 50 magistrates quit, complaining that they were unable to waive the charge even when defendants were unable to pay. Worse, they claimed that in some cases defendants were encouraged to plead guilty even when they were innocent, to avoid the risk of incurring a higher court charge. The House of Commons justice committee condemned the charge for similar reasons.
Last autumn Mr Gove cancelled a £5.9m ($9m) contract for the justice ministry’s commercial arm to advise Saudi Arabia’s prison authorities. Indeed, he went further, scrapping the commercial operation set up by Mr Grayling, on the grounds that it was allowing prison and judicial systems in authoritarian countries to claim a British seal of approval. He also abandoned plans by Mr Grayling to build a new secure college for teenage prisoners. And he overturned a ban pettily introduced by his predecessor on books for prisoners.
What is going on? In part Mr Gove’s reversals may reflect some easing of the pressure for more public-spending cuts. But more important is that Mr Gove has taken a less confrontational attitude to the judiciary and the legal profession than did the hardline Mr Grayling, who was the first non-lawyer to be Lord Chancellor in over 400 years (Mr Gove himself is the second). Mr Grayling seemed to go out of his way to make himself unpopular. In contrast Mr Gove has been readier to listen to grumbling by judges and lawyers.
The changes over the past six years of Tory-led government have been substantial. Judges’ pay has been frozen and their pensions cut, prompting some to sue the government. In spite of Mr Gove’s relative leniency, the legal-aid budget has been slashed by over one-third in real (inflation-adjusted) terms, from over £2.2 billion in 2010 to £1.6 billion in 2015. In many areas, especially of civil and family law, legal aid is no longer available. One result has been a big rise in the numbers choosing to represent themselves, clogging up courts that are ill-designed for litigants in person. Meanwhile spending on the court system has been reduced, many have been closed and court fees have increased.
Not surprisingly, practitioners have squealed. Last year Justice, a lobby group, pronounced that “our justice system is in crisis”. In his annual report in January the Lord Chief Justice, Lord Thomas, declared bleakly that “our system of justice has become unaffordable to most”. He added that judges’ morale was low, their workload had hugely increased and they were concerned over the adverse effects on access to justice of the recent changes.
The justice ministry counters such pessimism by pointing out that the legal-aid system in England and Wales is still one of the world’s most generous. Other countries are said to consider the British system to be among the fairest and best of all. But Mr Gove also has an agenda, not of further spending cuts but of something that is more urgently needed: reform.
The ministry says it is spending over £700m to modernise the courts and tribunal services. As the Centre for Justice Innovation, a think-tank, has put it, “Walking into a court today, it can still feel like the communications revolution never happened.” There is belated talk of online courts to settle disputes, with a judge present but no lawyers. Relate, a charity, is launching an online divorce or separation model based on the pioneering Dutch Rechtwijzer system. Better technology could be used to allow more disputes to be resolved by mediation or arbitration, not in costly courts.
Although some lawyers resist change, many senior judges do not. Nobody expects a return to the days of more generous public funding. Lord Thomas is eager to make greater use of technology to settle cases. Lord Briggs has called for an online court to start work as a matter of urgency. And Lord Jackson wants the early introduction of a system of fixed costs for all civil claims worth up to £250,000.
Mr Gove has noted that the justice system divides the country, in effect, into two nations: a rich, international class who like to settle cases in London under the gold standard of British justice; and everyone else, left to put up with a creaking, outdated system. He has even floated the idea that highly paid solicitors in London’s “magic circle” firms might be required to pay a levy towards the cost of the judicial system from which they benefit.
His biggest challenge will come when he confronts restrictive practices that have long raised costs and diminished competition. At the top end of the market, prices for legal services in Britain are among the highest in the world. The number of qualified lawyers has increased in the past two decades, but outdated restrictions make it hard for new types of provider, including accounting firms, to enter the market. Bodies such as the Law Society and the Bar Council often act as much to protect their members’ interests as to regulate them.
Mr Gove has experience, as education secretary, in dealing with entrenched interest groups. Lawyers, heavily represented in Parliament, are an even more formidable lobby than teachers. Under Mr Grayling both solicitors and barristers staged walkouts. Mr Gove may have won plaudits for being readier for dialogue than his predecessor. But his popularity with the special interests within the justice system could yet prove short-lived.