Westminster Watch

Post-Justice Week, Mark Hatcher is cautiously optimistic: frank exchanges at the MoJ accounts evidence session suggest that Westminster is finally getting the message

There are grounds for cautious optimism that MPs at Westminster are finally getting the message that our justice system is in crisis and that something must be done.

‘Do you mind if I am reasonably frank?’ was the exquisitely courteous opening remark of the Permanent Secretary of the Ministry of Justice, Richard Heaton who was giving evidence recently to the Commons Justice Committee on his department’s latest Annual Report and Accounts. It promised to be a revealing session and it did not disappoint. The session was held shortly after ‘Justice Week’ when, in the space of a little over a week, the future of legal aid was the subject of an informed Westminster Hall debate, as well as during exchanges in the Commons chamber on the Chancellor’s Budget statement and additionally upstairs in the committee rooms in the Commons at meetings of All Party Parliamentary Groups on Legal Aid, and the Rule of Law and Public Legal Education, and in the Lords during a meeting of the Science and Technology Committee which was considering forensic science in the criminal justice system.

Heaton’s evidence did not pull any punches in describing the deeply challenging financial situation of the ministry. It has been an unprotected department since that concept was introduced in 2010 and, as research commissioned by the Bar Council shows, the ministry has suffered cuts in real-term spending of 27% over the period 2010-2018, against the background of a 13% increase in economic growth and a matched increase of 13% in total government expenditure over the same period.

As is becoming generally better-known, and by now depressingly familiar to the Bar, the MoJ has made a succession of deep cuts in its budgets (notably in legal aid) and it has raised fees and charges to help cover its costs. But it has always been difficult to live within budget. The department has a fixed budget but a floating cost base in legal aid, the costs of running the courts and tribunals service and the prison service which depend on demand which the ministry sees as out of control. The department’s ability to plan with confidence for the consequences of policy change in the justice system from wherever it originates is currently very challenging and the sustainability of its approach is difficult to assess with confidence.

Although it is a regulated payment, provided on the basis of defined entitlement, and operated in many respects similar to welfare benefits, legal aid is covered by departmental expenditure limits, rather than annually managed expenditure (AME). If the ministry could improve the quality of its forecasting to suit the Treasury’s requirements, a more fluid approach to its funding based on AME might ease the financial strains under which it is operating. At present the department’s funding is so tight it is having to bring £235m from capital to the revenue balance sheet.

But forecasting has not been a departmental strength. In the last spending review the department assumed that demand for its services would fall and secondly, that they could raise more income through charging. For reasons that are not at all clear, the department had assumed the prison population would flat-line. But the earlier planning assumption under the previous Labour government in 2009 was that the prison population would reach 96,000 by 2012 onwards. The Permanent Secretary frankly admitted, with the benefit of hindsight, that the department’s more recent planning assumptions were ‘fundamentally unrealistic’.

Having overspent its budget in 2017-18 against the earlier spending review limits, it will be a struggle for the ministry to meet its in-year budget not least in relation to expenditure on legal aid in public and family law cases. This is increasing faster than predicted. So the ministry is having discussions with the Treasury about the payment of a possible supplementary estimate next spring. All this is taking place against demand-led calls for expenditure to increase against the earlier planned cuts of £300m in the department’s resource expenditure limit. That is set to fall from £6.3bn (2018-19) to £6bn (2019-20), as set out in the Treasury’s ‘Red Book’ (HC 1629, Table 1.6).

The essential task facing the ministry in its discussions with the Treasury will be to reset its financial baseline as an organisation for a multi-year settlement that it can live within and plan with confidence against. The success of these discussions will turn to a very large extent on the quality of the MoJ’s evidence base.

The evidence base needs to take Whitehall’s ‘Justice Impact Test’ to a more detailed level of understanding of actual or potential cost-incurring consequences of the multiple interactions in the justice system. These might cover, for example, the effects of increasing police funding (for which the Commons Home Affairs Committee has recently called) and disclosure in criminal proceedings (which the Attorney General has been reviewing); or the knock-on costs of the increase in litigants in person resulting in longer hearings and more appeals against possible savings in legal aid; or the effects of the slower than planned delivery of data transfer service between key IT systems in the criminal justice system (the common platform); or the effects on service delivery (on court users and those parts of the justice system which support them) of the time that will be needed to repair and renew the crumbling court estate; or the impact of possible changes which could follow on from the ministry’s Post Implementation Review of LASPO, expected by the end of the year.

Heaton sounded upbeat in words that may provide the Bar with a measure of reassurance when he told the Justice Committee: ‘We know what we are going to ask for and we want to persuade the Treasury that investing in those aspects of the justice system is good for citizens, good for public services and good for public outcomes, and is good governance and good justice. We have to make the case …’

So the Bar Council should contribute to the case for better funding of the ministry’s budgets based on robust and credible contributions to the ministry’s evidence base, drawing on previous studies of real world practitioner experience. As one of the ministry’s key stakeholders, the opportunity for the Bar to have a constructive dialogue with officials over the coming months is too important to miss. But the discussion needs to continue with the Treasury as well and, because the issue of funding at the end of the day is a political matter, there need to be some robust conversations with ministers and politicians on all sides, as well as with a range of charities, NGOs and others concerned with access to justice on behalf of those whom they seek to serve, especially the poorest and most vulnerable in society.

The importance of this latter group in building the case for significantly greater investment in justice was underlined by their involvement in the backbench debate initiated by former member of the Bar, Andy Slaughter MP on the future of legal aid. In addition to the legal professional bodies, a raft of charities including Mencap, Mind, Oxfam, Amnesty, Youth Access and the Refugee Council lobbied members to press the government to make better provision for access to early legal advice, access to welfare advice and simpler criteria for legal aid.

The debate contained little that was new but it evidenced a more informed consideration of legal aid funding and access to justice than it has been possible to achieve in the Commons over several years. There was a realisation that one cannot disaggregate the justice system. The integrity of the system depends on the whole system being properly resourced and funded. The LASPO changes had not been fully thought through, there had been insufficient time to conduct proper impact assessments and unintended consequences had resulted. The minister responding, Lucy Frazer QC MP will have gained a clear sense of rising concern about access to justice. On this it must be possible to be reasonably frank.

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.