Every October, for over 100 years, we have celebrated the Opening of the Legal Year. It is a deeply rooted tradition. But what might seem simply a strange procession of lawyers in full-bottomed wigs, patent shoes and breeches is, in fact, a significant occasion, combining the history of our justice system with its crucial relevance to modern, global Britain today. Ministers, ambassadors, judges and lawyers travel across the world to witness this extraordinary event and strengthen relations. It helps to cement the place of England and Wales as a major player on the global legal stage. The Westminster Abbey service reminds those in the justice system, especially the judiciary, that they must carry out their solemn oath to deliver justice to all equally – as important in a Coronavirus-affected world as ever.
This year, the Opening of the Legal Year will look very different. COVID-19 means no international guests; but this is even more reason to keep focusing on our global legal standing. Isolating as we may be, coronavirus has been a worldwide problem and we have learned how other countries have handled their situation, including the effect on justice and the rule of law. As our International Committee’s articles illustrate, results are mixed. There are positive role models but also countries where the pandemic has been used as a cloak under which to hide interference with the rule of law and individual freedoms. We robustly support our fellow Bar Associations in such circumstances.
Independence of the judiciary
Our own lawyers, judges and government talk proudly of how we respect the rule of law, defend the independence of the judiciary, and ensure the provision of resources for supporting the courts. If we are to remain recognised as a world-leading legal centre, we must retain the truth of that assertion – especially as we re-position ourselves on leaving the EU. In recent years, the government’s defence of the independence of the judiciary may have appeared weak. I hope the vigour with which the government has set up the Independent Review of Administrative Law is not a regressive sign. Happily, this Lord Chancellor has made clear that he will boundlessly support the independence of the judiciary. It is a vital feature of our system.
Investment in justice is also mixed. The government has certainly invested in large-scale commercial and international dispute resolution: the Rolls Building, Circuit Commercial Court, our expert judiciary and advocates specialising in complex cases (eg the Financial List) are a draw, as is our specialist arbitration provision. These undoubtedly enhance our international reputation. Legal services make billions for the economy. We have heard the Lord Chancellor and Lord Chief Justice compare our jurisdiction favourably against others in coping with the pandemic, claiming ‘we are ahead of comparable systems around the world’ in the functioning of our justice system during this crisis, and ‘our courts and tribunals… have been able to sustain more activity than many other comparable jurisdictions internationally’. It is unclear what comparisons are being made since many other jurisdictions have done at least as well as us. The Bar has worked extraordinarily closely with HMCTS, the judiciary and others to drive progress so that citizens can continue to access justice. That collaboration is an undoubted positive from an otherwise tragic situation.
Investing in justice
But it is worth recalling that access to justice has been decimated in the last decade. Justice spending in England and Wales pre-pandemic compares poorly to many of our neighbours and other sectors, as our Small Change report graphically sets out. From 2010-19, overall justice spending per person was slashed by 29% in real terms, with the legal aid budget reduced by 37%, despite the UK economy experiencing growth of 18%. In that period, law centres and agencies offering free legal advice were halved; over 100 court buildings have closed since 2016. The government’s spending per person per day (pppd) on justice is 39p, compared to defence at £1.66. For only an extra 22p pppd we could revert to 2010 levels – ungenerous, even then. The inevitable consequence of this lack of investment has been burgeoning backlogs and the diminution of prompt decisions for those exercising basic rights. It is good to see the MOJ recently invest in technology across criminal and civil courts. That investment must be augmented and sustained to strengthen access to justice; as must investment in the legal profession, many of whose members were struggling to make a living pre-COVID and are now teetering on the edge of survival.
Why it matters
Our justice system is a crucial part of our international presence, repositioned once we have left the EU. The Bar Council is helping broker bilateral agreements to maintain our global status as a leading legal centre. In 2021, learning from our coronavirus experience, with better technology, the UK will have re-adjusted our system to ensure the best delivery of justice for all using our courts. With a substantial commitment to invest, we will continue to attract those for whom English law, lawyers and judges provide a first-class service in the interests of justice. But, without it, we are in serious jeopardy. We must never forget that using our jurisdiction is a choice, not a necessity, for international business.