The Guardian view on cuts to the justice budget: eroding the rule of law
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Version 0 of 1. The Ministry of Justice was trumpeting a minute improvement in gender diversity among judges today. True, any erosion of the white male dominance of the judiciary in Engand and Wales is progress, but only in the way that a glacier’s movement down a mountain is progress. In the courts, the percentage of women on the bench has grown from 24.5% to 25.2%; in tribunals it has risen from 43% to 43.8%. Elsewhere in diversity news, there was actually a slight fall in black and minority ethnic recruitment to the bench, where it is at a mere 7%. Without a transformation in the government’s attitude to the cost of justice, that is likely to be a portent. In order to have a truly diverse pool of able lawyers to promote to tribunals and the senior courts, there needs to be diversity among the legal practices from which they are drawn. But one small perversity among the many even more iniquitous effects of the huge cuts in legal aid over the past five years, now projected to continue for another five, is that a whole tier of lawyers without any access to private means, who depend on getting a foothold in the profession by cutting their teeth on legally aided work, can no longer find the work to do. In a few years, when the Ministry of Justice comes looking for potential judges, they will no longer be there. The future of law threatens to be a place where criminal cases are conducted by a few chains of high-street lawyers on a volume basis at very low cost, while almost all civil work will have to be privately funded. It looks as if the law as a profession will revert to being the career of choice for the comfortable middle classes. That is only one small aspect of reforms that are having a deeply damaging effect. As the academic Frederick Wilmot-Smith has argued in two recent articles in the London Review of Books, the 30% cuts in the MoJ’s budget are undermining the principle of access to justice. As the Magna Carta jubilee celebrations should have reminded the lord chancellor, the rule of law depends on every citizen being able to defend themselves on a criminal charge or to bring a civil claim. In modern times, as governments extended their power over citizens, it became possible, say, to challenge decisions to withhold benefits. Tribunals were set up so employees had a right of redress against employers, and other tribunals allowed appeals against state decisions affecting rights of residence. By offering the chance to defend oneself against its arbitrary or unjust application, access to the court system is the flip side of the obligation to obey the law. It is not, as ministers often say, part of the welfare state, it is part of the web of rights and duties that give society some of its resilience. The assault on the £2bn budget for legal aid; the removal of certain civil categories, like most family law or medical negligence; the painfully tight contracts for criminal legal aid, which have provoked an unprecedented strike among criminal lawyers – these are all part of a wider attempt to minimise the cost of justice to the public purse in the name of cutting the welfare budget. Courts are now not only self-financing but expected to turn a tidy profit. Earlier this year, fees for bringing a case were sharply increased. In the teeth of concerted opposition from senior judges, some were increased by 600%. Charges calculated as a percentage of the claim being made were introduced. So a medium-sized business suing for a £150,000 payment would have to stump up £7,500 just to get into court. An attempt to raise the court fee for divorce from £410 to £750 was abandoned after universal condemnation. The actual cost to the court is estimated to be £270. The effect of new fee levels is even more damaging to tribunals, where it is clear that many people can no longer afford to bring a case for, say, discrimination or unfair dismissal. In March, 400 barristers protested at the increase in costs, pointing out that the number of cases had fallen by 60%. Chris Grayling, the justice secretary who upped the charges, asserted that in the past, bad claims were made. But the proportion of cases succeeding is unchanged. There is no evidence that there are fewer unsuccessful claims, just fewer claims altogether. This narrow focus on price at the expense of value, this disregard of the wider impact of being unable to challenge an injustice, is not unique to legal matters. But because it undermines a fundamental pillar of a well-ordered society, it is uniquely corrosive. The new justice secretary, Michael Gove, says his ambition is one-nation justice. It is not what his department is delivering. |