‘It’s tough being taken to task in public by your mentors,’ admitted David Lammy MP, after being challenged by Westminster Commission on Legal Aid
panel member Baroness Helena Kennedy QC at January’s oral evidence session on the bar, the fourth evidence session of the All-Party Parliamentary Group on Legal Aid’s Inquiry into Sustainability. The Tottenham MP was defending Labour’s call for a reduction in juror numbers to deal with the Crown Court backlog
, and the moment illustrated the difficulties even those on the same side politically face in coming up with solutions to the growing crisis in the justice system.
In his submission, Lammy rejected The Law Society’s suggestion to pause Crown Court hearings entirely
, saying that this would have a significant effect on Black and minority ethnic (BME) people. He pointed out that 90 per cent of those on remand in London come from a BME background and suspending all Crown Court trials would have a disproportionate impact on Black communities.
Other solutions to the court backlog have included calls for a move to a judge-only system, which would amount to a fundamental shift in our democratic protections. Some magistrates have called for them to have a greater say on when they would retain cases, rather than being transferred to the Crown Court. Lammy explained that such a move would also have an impact on justice outcomes. He added that we need the promised Nightingale courts, but they are slow and come at substantial cost. Labour’s solution, as the least-worst option in Lammy’s view, is that for a short period of time, less serious cases should be heard by juries of seven people, as happened during the second world war.
I understand Labour’s rationale, but the implication that this may be the best that can be hoped for worries me. When we had high levels of backlogs in the early 2000s, there were substantially more sitting days, substantially more courts and courtrooms, and substantially more judges. All of those have been cut in the intervening period. Back in the 2000s, there was no pandemic, with its shifting-sand regulations and issues around safety. But there is a wider point: reforms that will change the very fabric of our society are being mooted, and yet outside the echo chamber of the justice sector, there is little discussion and even less interest in what they would mean.
Barrister Adam Wagner, speaking at the session, wondered whether the impact of living under coronavirus regulations will spark greater public interest in how the law shapes our lives and in justice issues. Even very young children have an innate sense of fairness but that doesn’t usually translate into an interest in access to justice later in life. Instead, too often, people’s beliefs are shaped by the popular press, which portrays human rights lawyers as out-of-touch lefties who are a drain on, rather than a boon to, society. Most of the population never consider the law until they have occasion to use it – and even then, for the most part, this will be in relation to conveyancing, marriages, divorces, wills and probate. Many individuals will not encounter the legal aid system at all.
Lawyers often talk about the need to educate the public in the law, but for the public to have trust in legal systems, the law must be able to attract and retain people from all backgrounds. Barrister Joanna Hardy pointed out that, for too long, the bar has been the preserve of wealthy white men. For the law’s value to be understood and upheld, it needs to be seen to represent all members of society. This point was made again and again, with immigration barrister Dr S Chelvan highlighting that the majority of practitioners from BME communities end up at the publicly funded bar. This is no coincidence, as many of these practitioners see themselves as advocates of those communities.
However, there remain clear issues of diversity in the profession and issues of progression. Natasha Shotunde, chair of the Black Barristers’ Network
, cited the Bar Standards Board’s January 2021 report, Diversity at the bar 2020
, which found that only 1.3 per cent of QCs are Black. As of 1 December 2019, there were just over 1,000 QCs, of whom only three were Black women, and 18 were Black men. She added that at the beginning of 2020, it was announced that six Black women had taken silk. This was especially good news but figures in December 2020 showed a dip, with only 14 QCs appointed last year being BME. Shotunde also referred to a survey undertaken by the Black Barristers’ Network last year
covering issues of racism within the legal system. Many of the respondents reported name-calling, feeling patronised and being bullied. Just over 50 per cent felt that treatment by court staff had been negatively affected by race. Thirty-three respondents had been assumed by court staff to be defendants in criminal trials and 23 were assumed to be social workers.
These findings are reflected in the way Dr S Chelvan characterised his experiences as ‘smashing glass ceilings’, only to find that they’d been replaced with lead ones.