Authors:Chris Minnoch and Rohini Teather
Last updated:2023-09-18
“A Cinderella sector among politicians, unknown and undervalued by the electorate.”
Marc Bloomfield
As we enter a new chapter in British politics, there is much talk among the ‘Access to Justice Sector’ about which direction the government will take in relation to Justice (with a capital J). No longer distracted by constant wrangling about Brexit, and emboldened by a comprehensive election victory, the Conservatives now have the means and the majority required to introduce major reforms. This new power base, along with rhetoric from inside number 10 and notable, worrying inclusions in the Queen’s speech, has left many lawyers concerned about the implications for human rights, judicial independence and the ability to use the law to hold the state to account.
One potential advantage under the new regime could be stability. When Robert Buckland MP was sworn in in July 2019, he was the fifth lord chancellor in four years and the seventh on a conveyor belt since the Conservatives came to power in 2010, but he survived the post-EU-exit cabinet reshuffle. Those seeking to influence government policy are in desperate need of stability and of sensible policymaking from a ministerial team that is willing to listen to and act on the experience and expertise of the profession.
In taking the lord chancellor’s oath, Buckland promised to ‘respect the rule of law, defend the independence of the judiciary and discharge [his] duty to ensure the provision of resources for the efficient and effective support of the courts for which [he is] responsible’. Notably, he took the oath in both Welsh and English. But what does this oath mean on a practical, day-to-day basis? The question of judicial independence is critical but will, no doubt, be the subject of many an article in the coming months, so let us turn instead to the rule of law and the proper provision of resources to the courts.
Lord Bingham set out eight principles of the rule of law,1Tom Bingham, The rule of law, Allen Lane, 2010, page 8. and, crucially, these included accessibility, equality, exercising power in good faith, the protection of fundamental human rights and the ability to resolve disputes without prohibitive cost or inordinate delay. This is, of course, an exceptionally simplified summary of a very complex concept, but these are the principles that Buckland has sworn to uphold.
For those of us seeking to influence the political agenda, how do we translate those complex principles into definable and measurable ‘asks’? There seems little doubt that every aspect of the justice system is crumbling after years of malnourishment and neglect, and a ‘Please Sir, can I have some more’ approach simply won’t be enough. How do we frame our arguments to convince the government to reinvest in Justice when this concept doesn’t win votes?
The MoJ’s Legal Support Action Plan sets out a series of reforms for legal aid and wider ‘legal support’.2Legal support: the way ahead, CP 40, MoJ, February 2019. This includes potentially significant reviews of criminal legal aid fees and of the legal aid means test. But we would argue that the MoJ’s plans are far too narrow and only tinker around the edges of a broken system. Its budget has been repeatedly cut over the past decade and despite a billion-pound court reform programme, those on the ground continue to report that the system is in crisis. So we must convince the government that without significant reinvestment, justice will continue to be denied to the vast majority of the public. Maybe we should start with the words of the lord chancellor’s oath?
The All-Party Parliamentary Group on Legal Aid met on 3 February for the first time this parliamentary session, gathering together an impressive range of speakers from across the political spectrum and the profession. Speakers such as the former lord chancellor, Charlie Falconer, spoke of the lack of interest in the Justice sector, describing it as a Cinderella sector among politicians, unknown and undervalued by the electorate. He urged those campaigning for legal aid to make common cause with the lord chancellor and with number 10, and to fight for a real terms increase in the legal aid budget. This sentiment was echoed by the chair of the Justice Committee, Conservative Sir Bob Neill MP, and Daisy Cooper for the Liberal Democrats. Baroness Natalie Bennett spoke for the Green Party of the vital importance that legal aid lawyers play in holding the government to account, particularly in relation to environmental issues.
A number of the speakers raised the original political ideal behind legal aid, which was that it would act as the NHS of the Justice sector, a fourth emergency service providing the equality of arms and access for all that was lauded by Lord Bingham. Speakers noted that legal aid should be viewed in the same light as education and healthcare, that the MoJ budget should be protected, and that the government has a responsibility to change the narrative that has seen the demonisation of legal aid and human rights lawyers. Now, doesn’t that sound like the basis for a solid ministerial oath?
1     Tom Bingham, The rule of law, Allen Lane, 2010, page 8. »
2     Legal support: the way ahead, CP 40, MoJ, February 2019. »