It has become the practice for the new Chair to visit chambers and robing rooms across the country during February and March, and this year is no exception. I am immensely grateful to the many members of the Bar who have taken the time to meet and talk with me.
You have raised a wide range of topics with me, but inevitably, many have wanted to discuss the perennial challenges to the funding of our legal system in every area, whether it is crumbling courts, the effects of removing and restricting legal aid, ongoing failings in the prosecution process, or the growing mismatch between shrinking fees paid from public funds (whether central or local) and the work that is now required of us. In every area, the Bar is being asked to shoulder ever more of the burden required to keep the system going, which is then compounded by additional challenges such as the inexorable growth in the number of litigants in person, particularly in family cases, and judicial demands for extra work to be done on ever shorter timescales.
The court reform programme seems distant from those challenges, and from delivering realistic solutions. Yet for now, it is the only investment on offer from those in power, and only on terms that it is ‘repaid’ through yet further savings. This is a one-off, not a sign of any change in political attitude.
This process has being going on for years, even if it has been most noticeable in the further ‘austerity’ cuts in the last ten years. Even in areas with ‘export value’ in the context of Brexit, the government continues to extract money from litigants through substantial court fees; and in every area, saving money has taken priority over the resulting damage to the reality and reputation of our system of justice, including our reputation overseas.
Why is justice treated so badly? After all, our society could not function – and no other services could be delivered – without the rule of law and the system of justice on which it depends. There is a core problem, I think.
The public ‘get’ education, and they ‘get’ healthcare. They understand what they are, they see the value to society, and they receive something tangible for themselves.
As a result, the public and the press support those who provide these services, and they demand that each is funded by the state. Our politicians respond to this, giving priority to value over cost. The results are that each is provided for free or at modest cost, with the more recent exception of higher education, and that education and health are protected departments, their expenditure insulated from the swingeing cuts to others.
Part of the reason for a different attitude to justice may lie in our resilience, and our commitment to our clients and to the administration of justice. We have soldiered on, and admirably so, in the face of repeated cuts across the system, driven by our professional ethos. The Bar has been taken for granted as a result; so, too, have the judges and solicitors, and the courts themselves. The system has been left to run on empty.
But even if that is right, there is a deeper problem with the value that our society places on justice. This problem is not unique – across Europe, lawyers have the same concern, even where their position is constitutionally entrenched. The hard truth is that most of the public do not engage with the justice system, and hope that they never have to. As a result, they do not perceive themselves to be getting much from it. Much of the value of justice lies in enabling us to live in the society in which we wish to live, but that is an intangible concept for many. It may not take much to encourage the more thoughtful majority to recognise its crucial role and intrinsic value, but the recognition is intellectual and not visceral, and is too often tempered by misconceptions picked up from sensationalised stories in the media, political rhetoric, or a feeling that those who have contact with the system must have brought it upon themselves.
This has been a challenge facing successive Chairs of the Bar. Over a decade ago, we were at a low point, with aspersions cast regularly on ‘fat cat’ lawyers ‘growing wealthy on public funds’. A huge communications effort since then has made some real progress. Those ‘fat cat’ stories are fewer. We have seen better understanding and more favourable perceptions in the mainstream media, and we now hear much more about the effect on access to justice and the system itself from cuts and disinvestment; but there is still a long way to go.
We cannot deal with this through the media alone. We need to communicate with the public directly, in whatever ways we can. To give just one example, the Bar Council’s social mobility outreach work is not only hugely important in itself, but has the added benefit of improving public awareness. We reach many in schools through our annual Bar Placement Weeks and through our work with the Citizenship Foundation, and perhaps the greatest impact comes through the annual Bar Mock Trials Competition. This gives thousands of 15-18 year olds in hundreds of school across the country every year a real insight into criminal trials.
But we also cannot do this alone. We need as many individual barristers as possible to play their own part. Some of you blog – a few very successfully. Others speak in local schools (and may use the materials that we can provide). Some chambers now have their own CSR and outreach programmes. This work is immensely valuable in itself, but it also helps to bring the reality of the justice system closer to the public. Our individual contributions may seem small, but if a large proportion of the over 16,000 of us now in practice were all doing something, then just imagine what an impact we could have together.
Contributor Andrew Walker QC, Chair of the Bar