New faces; old challenges; and short change for justice?

With Justice Week and the Spending Review ahead, Andrew Walker QC has high hopes of the Bar’s own AG and DPP – but Whitehall is not accounting for justice

The Lord Chancellor has just survived longer than his immediate predecessor, but as if to prove that the pace of change is not slacking where politics meets the law, we have a new Attorney General.

Geoffrey Cox QC is only the second Geoffrey to be appointed to the office. The first, Sir Geoffrey Palmer, was an MP in a period of political turmoil. A period in which the political leader of a disunited kingdom put a constitutional issue to the country and lost, dividing families and the country in the process, and causing years of upheaval. A period in which a rebellious Parliament repeatedly flexed its constitutional muscle in the face of attempts to bypass it, in which the rule of law was undermined, and in which judges’ independence was challenged. How times change.

Having been elected to the ‘Long Parliament’ in 1640, and after two spells in the Tower, Sir Geoffrey was eventually appointed as Attorney General at the beginning of the end: in 1660, on the restoration of Charles II, when our predecessors decided to return to the constitutional status quo ante. Our new Attorney is not so lucky. Who knows yet what or when our own consensus will be?

He is not the only new appointment who will face significant challenges. He will be joined by a new Director of Public Prosecutions. Max Hill QC, a former chair of the Criminal Bar Association and Leader of the South-Eastern Circuit, will take up his post on 1 November.

The Bar wishes them both well, and has high expectations of two such senior members whose professional lives have been shaped at the heart of the criminal Bar. They will bring their knowledge of the problems we face, particularly in criminal justice, into the heart of government; but questions will nevertheless be asked of them by supportive but critical colleagues at the Bar, and we will be looking for proof of their mettle. Our hopes are high that they will not just be heard by those who matter, but will also secure a response that starts to mend what successive administrations have broken.

I have not been the only one looking back to the 17th century. In giving judgment just a few days ago, Mr Justice Mostyn drew on judicial resistance to their summary removal by both Kings Charles. We must not forget how long it has taken for our judges to achieve true independence, and how we must remain vigilant if we are to be sure to continue in that happy state. A reassertion of the principles of judicial tenure and independence enshrined in statute since 1701 sends a strong message about the firmness of purpose of our current judges, including in their dealings with the Secretary of State for Justice (whose actions were in issue before Mostyn J).

Across Whitehall, though, we still see little account being taken of justice. On a positive note, since 2016 (and just reissued), the Ministry of Justice (MoJ) has promulgated a ‘Justice Impact Test’. But before you get too excited, the rather modest aim is to provide a ‘tool’ to help to minimise the impact on the justice system of policy made in other departments. About time, you might think, recalling how often the justice system has had to absorb yet more costs caused by others; but this is hardly a rallying call for respect for law and justice.

To return to my earlier theme, judicial independence cannot exist without commitment and ethos, but they are not enough on their own. We cannot preserve the rule of law, an independent judiciary, an effective system of justice, and an independent, strong, diverse and effective legal profession (Legal Services Act 2007 s 1(1)(f)), without proper infrastructure, support and resources, buttressed and underpinned by political commitment and respect.

I have written before about the blurring of judicial, administrative and policy functions under our developing constitution. The agreement under which HMCTS operates is just one aspect of this. The forthcoming government Spending Review draws attention to another: resources.

If our most senior judges have concerns about funding, they may – and probably must – make this clear to the Lord Chancellor and to Parliament. The judges have their constitutional position well in mind, but will be cautious. While British pragmatism should prevail, these are unpredictable times. If our judges were ever to reach that point, what respect and response could they expect, and with what consequences?

In the Unison case, the Supreme Court explained and enforced the constitutional right of access to justice. Will it yet be asked to interpret and enforce the Lord Chancellor’s oath and duties to the judiciary, courts and tribunals under ss 3(6)(b) and 17 of the Constitutional Reform Act 2005 and s 1 of the Courts Act 2003? If it does, how enforceable will they prove to be? Let us hope that there is no need to put this to the test when the Senior Salaries Review Body makes recommendations for the judiciary later this year.

If a constitutional guarantee does not secure funding, what hope for the rest of us? We must fall back once again on our determination to fight for justice. We cannot do otherwise. There is too much at stake. We must also open the Treasury’s eyes to the results of underfunding, and find a way to unlock public support that is visceral, not just cerebral. The Bar Council is already preparing, and our efforts will increase as Justice Week approaches at the end of October.

The combined budgets of the MoJ and the Crown Prosecution Service are a tiny fraction of government spending, even before MoJ income is taken into account. The Department for Work and Pensions spends in less than three weeks what the MoJ spends in a year. Starting on New Year’s Day, it spends the whole annual legal aid budget by breakfast time on 4 January. The NHS spends it by bedtime the following day. Is justice so much less valuable?

Contributor Andrew Walker QC, Chair of the Bar

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Andrew Walker QC

Chair of the Bar