How to secure the rule of law

Chief justice optimistic but Labour lawyers demand reforms

Is the rule of law under threat? Two comments published yesterday drew attention to this nebulous but fundamental concept.

The first was optimistic. In his farewell annual report as lord chief justice of England and Wales, Lord Burnett of Maldon made this observation:

The judiciary and the courts underpin the rule of law. They underpin economic growth, prosperity and a settled society. They are not optional extras or just a service but one of the foundations on which all else is built.

I have been encouraged that public and political discourse has recently begun to speak in such terms. That bodes well for the future.

In a speech last year at the Hebrew University of Jerusalem, Burnett had said that executive support for the judiciary was not an optional extra within a democracy governed by the rule of law. “It is a necessary means of securing it,” he insisted.

As I reported, this was seen as criticism of successive justice secretaries. The lord chief justice’s latest remarks suggest he has a better relationship with the current secretary of state, Alex Chalk. Burnett ended his report by wishing his successor well as Dame Sue Carr “begins one of the most stimulating, if demanding, roles in public life”.

The second comment comes in a paper published by the Society of Labour Lawyers, a Labour Party think-tank established in 1948. Roger Smith OBE and HH Nic Madge, who both started their careers as solicitors working in law centres, called for an urgent debate about the provision of civil legal aid in England and Wales:

The rule of law is fundamental to any civilised society. However, the rule of law cannot function without access to justice. Now, due to the lack of legal advice and representation, many people are excluded from their democratic right to justice. The legal aid system is broken beyond repair. It is time to start again with a new vision.

Smith and Madge called for the creation of a national legal service, an idea they originally proposed earlier this year. A preface to yesterday’s paper, Towards a National Legal Service: New Visions for Access to Justice, says it “sets out how the next Labour government could implement that vision by creating a National Legal Service that would put the interests of people with legal problems first — in the same way that the National Health Service puts the interests of people with health problems first”. Other contributors explore specific aspects of the proposal.

Critics may think the authors have a starry-eyed view of the health service, but it’s clear that their national legal service would be more of a brand than a bureaucracy. They call for legislation to “incorporate through common branding a fresh mix of new and old providers of legal aid to form one integrated service that would provide legal help for all those who cannot afford it”.

Can the nation afford it? Everybody at the launch event last night accepted that an incoming Labour government would keep tight control of public spending.

Some answers are offered in the last (but most important) chapter of the paper by Joseph Kelen, a New York-qualified lawyer based in London whose LLM from Harvard Law School was awarded for his work on the economic analysis of law. Kelen chairs the junior Labour lawyers’ group.

His starting point is that there is a clear justification for improving civil legal aid on policy and moral grounds. But that’s not all:

Providing civil legal aid will also result in direct benefits to the Treasury: from reduced demand on the NHS and social housing, to fewer welfare payments and increased tax revenues.

It will also have indirect effects on the economy, with proper family, employment, housing and immigration advice resulting in more people in work, generating both revenue and consumer spending.

These amounts are far from small, with at least nine empirical studies of civil legal aid systems showing a benefit of over £10 for every £1 spent on funding legal aid services.

All that would take time, though. How do you prime the pump?

Inspired by his US experience, Kelen suggests three ways of raising money:

• A small uplift on court fees paid by claimants in higher-value claims.

• Interest generated from client funds which solicitors would be required to hold in a centralised account.

• A percentage of damages and costs paid by a defendant to a legally aided claimant.

He estimates that, taken together, these proposal could raise £100m a year.

The future

The Ministry of Justice launched a review of civil legal aid at the beginning of this year. Although it’s expected to report next spring, there is to be a public consultation before any reforms are introduced.

What might a future government do?

The Labour lawyers say that, at its best, civil legal aid was transformational:

It enabled women who had been abused to gain injunctions against violent men; tenants to prevent eviction and harassment by rogue landlords; workers to gain compensation from their employers for injuries suffered at work; and consumers to gain redress for faulty goods and dodgy services.

Now, though, it is broken beyond repair. Over the past 13 years, it has been destroyed. It has been eviscerated by legislative changes, starved of resources and ruined by poor management.

Smith and Madge argue that access to justice for all must be a political priority — and not just at election times.

Any reformulation of legal aid in the next parliament will only succeed if it has the active support of the lord chancellor; an energetic and committed legal aid minister; engaged senior officials at the Ministry of Justice; the senior judiciary; and practitioners.

We wait to see what Labour’s new shadow justice secretary and lord chancellor Shabana Mahmood will be saying in the months leading up to the next general election. But, as one Labour MP observed wearily at the launch event last night, “we’re never short of advice”.