It is an unseasonably warm mid-October afternoon as I walk from Fleet Street through the gateway to Middle Temple. Designed in 1684 by Roger North, in the year in which he was Treasurer, the style of this edifice is typical of the late 17th century. Built in brick and Portland stone with four giant Ionic pilasters, it rises from a rusticated base to a well-defined pediment above. The gatehouse’s solidity has survived many vicissitudes over the centuries, including the comprehensive bomb damage suffered by the Temple during the Second World War. Passing through this historic portal I meet a veteran of the Chancery Bar, who was Called in 1964. During his professional career there have been 15 general elections. He says he has never known a period of such political instability and uncertainty as the present. Who will resign from the Cabinet? Who will be Prime Minister by the end of the week, let alone in six months’ time? When will the future Tory leadership contest take place?
As one commentator remarked, the main political parties are like pantomime horses. Their front and hind legs move in different directions. Theresa May proclaims One Nation decencies from the horse’s mouth but the back legs are dragging her all the time rightwards to a hard Brexit. The back legs of Labour try to hold onto the middle ground, while the front legs scrabble leftwards and Jeremy Corbyn supplies a stream of populist platitudes. He voted against Maastricht and against every other EU treaty that has come before the Commons during his 35-year parliamentary career.
Mrs May’s minority government is desperately attempting to resolve the biggest set of social, economic and political challenges facing the country since 1945 while the political fabric is tearing itself apart and the elements which safeguard the constitutional integrity of the Union are in danger of dissolving. Politicians who would be very marginal, if not entirely irrelevant, in any other context, have gained a vastly inflated influence over the future of the country. Meanwhile the Lib Dems continue to struggle to make any headway with the public at large being more internally preoccupied with the existential threat facing their party.
The Budget Statement scheduled for 29 October provides an opportunity for the Chancellor to review the state of the economy and the public finances, to respond to updated forecasts from the Office for Budget Responsibility and to announce tax and spending changes. These will need to include headline measures to enable the NHS to be given an extra £20bn each year by 2023, following the Prime Minister’s announcement in the summer. If only justice could be allocated a fraction of this increase in public expenditure, the pressures which currently preoccupy the legal profession and all who work for the administration of justice would be eased, the current total Ministry of Justice budget being less than 1% of total public expenditure spread across the whole of government.
One of the key objectives of this year’s Justice Week (29 October to 1 November), a new joint initiative of the Bar Council, CILEx and The Law Society, is to advocate the case for greater public spending on justice. It has an undeniably ambitious aim of placing justice and the rule of law at the centre of public and political debate through a programme of events, new research and media content designed to attract interest from politicians, media, third sector organisations and members of the public, to make the case for justice. The findings of research commissioned by the Bar Council demonstrate the massive scale of the cuts in legal aid which should resonate clearly with these audiences, not least with the public. Recent polling evidence points to increasing public concern about justice and the risks that could flow from inadequate resourcing of the system.
These concerns are understandable since the Ministry of Justice will have seen its overall budget cut by 40% by 2020. This cut is among the deepest of any Whitehall department and, as the Chairman of the Justice Committee has admitted, the cutbacks may have gone too far. Somehow this must be managed as the Ministry seeks to deliver major change projects in every area of its business, including legal aid, courts, prisons and probation. At the same time the Ministry has had to cope with a 25% reduction in its workforce between 2011/12 and 2016/17.
Alongside the cuts, the Ministry is spending £1.2bn on modernising the courts, which the Commons watchdog on public finances, the Public Accounts Committee (PAC), described in July as a ‘hugely ambitious’ programme on a scale which had never been attempted before. The savings HMCTS expects to achieve – £265m annually – from lower administration and judicial costs, fewer ‘physical hearings’ in court and running a smaller court estate, are expected to contribute around half of the total savings the Ministry committed to in the 2015 Spending Review. The PAC sounded a warning that such ‘sweeping changes’ would be extremely difficult to deliver.
Treasury Minutes have a relatively limited readership but the Government Response to the PAC’s 56th report in the current parliamentary session (HC 9702, October 2018) is notable. It accepts all of the PAC’s recommendations, acknowledging that more needs to be done to engage with stakeholders (including the Bar) more effectively and that changes to the criminal justice system which aim to make the overall system more efficient rather than just save money for HMCTS can have effects across the criminal justice system. As a result a ‘more joined up model’ needs to be developed by the Ministry with the Treasury to assess the costs and benefits of policy change better and to prevent ‘cost shunting’, as the Bar Council has previously argued. The government’s response to the PAC report provides valuable ammunition for the Bar’s Justice Campaign launched during Justice Week and should enable the Bar and others to calibrate progress in addressing acknowledged shortcomings in the ‘reform’ programme.
More grist to the mill for those advocating a rebalancing of expenditure on justice comes from the Institute for Government and the Chartered Institute for Public Finance and Accountancy in their recently published Performance Tracker 2018 report. This shows how the government is quietly shifting the costs of public services onto individuals, from the disposal of garden waste to the provision of legal aid. More volunteers are running public libraries just as more people are paying a greater share of the cost of defending themselves in court.
Is it not time for the Prime Minister and the Chancellor of the Exchequer as well as their colleagues in cabinet to start making explicit the realities facing the country about what public services cost and how that money can be raised? In a world of incredible change and complexity in which we feel subject to huge forces beyond our control, political leaders need to help us move from confusion and rage to realism about what can and cannot be changed. Instead of applauding anger, blaming other people or the past, or reinforcing frustrations, politicians, on the left and right, need to confront us with difficult truths on which perhaps politically unpopular decisions will have to be made.