My generation, the Baby Boomers, have failed. We have failed appallingly, disastrously. We were born at the best possible time and had everything: good secondary education open to all; free university education (generous maintenance grants; no fees); a National Health Service which cared for us and was eliminating premature death; almost full employment; no wars and no national military service; exciting foreign travel; sexual liberation; a significant improvement in career opportunities for women; revolutions in technology, especially IT. We were free to do almost anything we wanted. There was still much wrong with society – inequality, racism, discrimination, poverty – but we were enthusiastically marching through the sunny uplands. Onwards and upwards. Bob Dylan sang ‘the times they are a-changin’’ and we believed him. We would make a difference. We already lived in a ‘welfare state’ (think about the meaning of those words), but we would make society a better place.
Our failure became obvious to anyone who cared to look, but the COVID-19 pandemic has brutally ripped off the coverings which concealed some of the problems. The disaster which is the infrastructure of this country is now open for all to see. We have the worst government of my lifetime – incompetent, amoral, dishonest – during a crisis which requires the best of governments. But the malaise goes far deeper than the politicians. The public sector has been decimated; savage cuts, year on year; transfer of many functions to the private sector; poor management; low pay and low morale.
Despite the dedication and sacrifice (sometimes, tragically, with their lives) of workers and carers in the NHS, the state has been responsible for the unnecessary deaths of thousands of people. It is not simply a failure of politicians. It is a combined failure of politicians, civil servants, advisers and the structure which should be supporting them and implementing decisions. Deaths have been caused by: the government’s lack of planning; the running down of resources; inadequate supply chains; a lack of basic equipment such as PPE; poor decision-making (failure to prepare in January and February; delay in implementing lockdowns in March and November; transferring hospital patients to care homes without testing them); and an inability to implement an effective test, track and trace system.
The justice sector does not generally kill people, but it can and does wreck lives. There are clear parallels with the NHS. The courts and tribunals, legal advice and representation have suffered in just the same way. Their ‘austerity’ cuts have been among the most savage in government. One incident illustrates the woeful malfunctioning of the courts. I was sitting as a judge in a major London court. There was a roof leak. Nothing was done. The court had dispensed with the maintenance man who fixed the boilers and carried out minor repairs. The large outside company which was contracted to maintain the building ignored the leak. Predictably, after several months of inaction, the ceiling of the kitchen underneath the leak collapsed. The kitchen was unusable. Catering services for jurors, the public and advocates were suspended. More months passed before the Ministry of Justice and HM Courts & Tribunals Service (HMCTS) called a meeting, which I attended. The civil servant chairing the meeting announced that its purpose was to ‘establish clarity and understanding’. NO! The purpose was to fix the bloody roof leak! I lost patience. When, two days later, nothing had been done, I went onto the roof with a security guard and an old Tesco carrier bag and removed the dead leaves which had been blocking a downpipe from a valley gutter. In five minutes, using a modicum of common sense and initiative, I had cured a roof leak which had lasted for months. That was not an isolated incident. It is symptomatic of the mismanagement within HMCTS.
We, as a society, are not ensuring justice for all. There may be justice for the rich and powerful, but the legal system is no longer protecting the weak.
For many, society is broken. It is in pieces. We need to rebuild it. Many parts of the court system are literally broken. The legal aid and advice system is failing. There are huge advice deserts. Thousands of vulnerable people lack representation. We, as a society, are not ensuring justice for all. There may be justice for the rich and powerful, but the legal system is no longer protecting the weak.
The cause of the problem is long-standing. It dates back 40 years to Thatcher and Reagan; to Joseph and Friedman. Thatcher said, ‘there’s no such thing as society’. Economically, politically, structurally, she shifted the country far to the right. Despite Labour governments since, until this year, economic policies have remained essentially Thatcherite. The centre ground of Butskellism has never been regained. All governments have been terrified of raising taxes. Comparing Ted Heath and Ed Miliband, whose economic policies put a greater portion of GDP into the welfare state? As my mother used to say, ‘you don’t get what you don’t pay for’. If anything good comes out of the COVID-19 pandemic, it may be that finally we realise that we need big, competent government which can plan, organise and care for our welfare. There are many state functions which cannot be left to a poorly regulated private sector which places profit above everything else. In other words, we need a fundamental political reset.
So, the first step towards building, or rebuilding, a fair and accessible justice system is a recognition that it will cost money; far, far more money than can be realised by the misguided policy of selling off the most valuable court buildings and cutting staff and judicial sittings which led to unacceptable delays in hearing cases even before the pandemic. There has to be a political will to raise taxes, not only for reconstruction but also for the day-to-day running of fair and efficient processes. Yes, improved IT and some remote hearings have a role to play. We cannot be seen to be Luddites, but there are serious doubts about what the current Court Modernisation Programme will deliver. Without proper evaluation and fundamental change, there is a real risk that it will exclude many vulnerable people from justice.
Second, we must recognise that it is now too late to reform the existing legal aid scheme and Legal Aid Agency. Twenty years ago, that might have been possible. No longer. We need to start again from scratch. Although, in theory, a system of public finance to enable private firms to provide legal aid work is capable of producing a good, economical service, the current system failed even before ‘the reforms’ which wrecked it. We have to accept that there was abuse by a minority of providers. Some barristers (who would benefit from the grant of legal aid certificates), when providing initial advice, inflated the prospects of success unrealistically, with the result certificates were granted in weak cases. Sometimes, district judges were insufficiently robust in reducing excessive costs claims in civil cases. And there can be no possible justification for the Criminal Defence Service paying, in 2004/05, individual barristers the sums of (gross) £755,000, £766,000, £902,000 and £1.2m (Independent, 24 April 2006). Perhaps the best model would be a new, national, publicly funded legal service, modelled on existing law centres. It should not be a monolithic, centrally run service, but instead each centre should be independent and locally managed. Salaries for solicitors, barristers and paralegals should be competitive and in line with reasonable private practice earnings to ensure that able and committed lawyers are employed.
Third, there must be reform of substantive law. Too much of it is too complex. If, as is the case, many lawyers do not understand the law outside their own specialist areas, what prospect is there of the public understanding it? Legal resources are wasted due to its complexity. Key areas should be codified, using simple, plain English so that citizens can understand their basic rights.
We cannot fiddle while Rome burns. We should not tinker with a broken structure. We need to build a new justice system within a restored welfare state.