The cost of justice

Lady chief justice and attorney general debate the rule of law

Compliance with the rule of law is not cost-neutral, the lady chief justice of England and Wales told MPs yesterday.

Addressing the Commons justice committee, Baroness Carr of Walton-on-the-Hill said:

The foundation of the rule of law is a properly funded and a properly functioning justice system that delivers for our citizens… The rule of law is not free; it requires investment.

Baroness Carr addressing MPs yesterday

Some areas of the justice system were working well, she continued, such as the business and property courts.

But, she continued,

I cannot pretend that the picture overall is a rosy one. We have had to grapple with the ongoing prison crisis which has put immense pressure on the courts and judges.

There have been challenges to the rule of law. Think of the Horizon legislation and suggestions of judges fast-tracking riot cases to meet government agenda — when listing is a judicial function.

After reminding ministers to stay within their constitutional lane, Carr berated them for the problems facing the courts.

We have worked against a backdrop of increasing backlogs, underfunding and staffing issues in both the courts and tribunals, crumbling buildings and serious security incidents…

It is important to emphasise what is at stake by not funding the system properly: not only in terms of the daily impact of a lack of resourcing but as a distraction from what should be the real task, which should be planning for — I would say, delivering — a modern digitised court and tribunal environment fit for the twenty-first century and truly reflective of our international standing as a global centre of legal excellence. At the moment are fire-brigading instead of town planning.

Despite this, the Ministry of Justice is one of the most under-funded departments across government — with the resource budget at around £10 billion for this year and £11.8 billion for next — and that includes prisons. This is a tiny fraction of what is spent on other critical public services.

Andy Slaughter, the Labour MP who now chairs the justice committee, then asked Carr about the current cap on sitting days in the Crown Court.

As the the justice secretary Shabana Mahmood had recently explained, “every year, the government and the judiciary agree a number of sitting days, and an overall budget to fund those sitting days, in what is known as the concordat process. In June, the judiciary reached an agreement with the former lord chancellor to sit 106,000 days in the Crown Court.” That had subsequently been increased by 500.

There had been misleading reports about figures, Mahmood added last month. But one thing was clear: “the concordat process has not worked as it should.”

Carr agreed “wholeheartedly”. She began by explaining that although the funding covered a financial year beginning in April, no offer had been made for the current year until June.

By August, it had become clear that the courts and tribunals service had the capacity to sit for 113,000 days. But that was not a figure the government was willing to fund and there was a shortfall of 5,500.

“The decision to limit us to 106,500 has had a drastic effect across the board,” Carr said. Cases that were ready to be heard had been taken out of the lists. As a result, hearings were being delayed until 2025, 2026 and some even into 2027.

“This has been a most distressing time for witnesses, for police, CPS, advocates, court staff and judges alike,” the lady chief justice told MPs. Far from saving money, it was increasing costs.

The judges had been told that 106,500 was a minimum — “a floor, not a ceiling”. But the Ministry of Justice had refused to pay for 113,000 days. “There was the opportunity of sitting to maximum capacity — and it was not taken.”

Despite being a member of the House of Lords, Carr is not allowed to speak in debates there while she remains a serving judge. But many other legally qualified peers took part in a debate on the rule of law last night initiated by. the new advocate general for Scotland, Baroness Smith of Cluny KC.

She had been introduced to the Lords by her mother, Baroness Smith of Gilmorehill, whose husband John Smith MP led the Labour Party from 1992 until his death in 1994. “It is an underappreciated virtue of the new Labour form of the hereditary peerage that both generations can sit here simultaneously,” Lord Wolfson of Tredegar KC observed wryly from the Conservative front bench.

Wolfson shadows Lord Hermer KC, who wound up the debate. Without referring directly to Carr’s comments earlier in the afternoon, the attorney general confirmed that “it can now take years for a rape case to get to trial and the not infrequent but nevertheless shameful experience of many is that they can attend a courtroom… to be told that there is no prosecution counsel available and their case needs to be adjourned to another date.”

That was “an unacceptable state of affairs”, Hermer said:

Of course, the lord chancellor would wish, if she could, to change the entire position overnight to properly fund legal aid across the board, to rebuild our courts to the condition in which we would expect them to be, and to have unlimited sitting days in the Crown Court and in other courts and tribunals.

But we have inherited an economic situation that simply does not permit us to wave that magic wand, however much we want to and however much we identify the need as urgent. What I can promise your lordships’ house is that this is a priority for the lord chancellor. We understand the problem, we understand its importance from a rule of law perspective, and we are determined to deal with it.

Hermer did not respond to Wolfson’s questions about the International Criminal Court (ICC). If the government had made submissions to it as the Conservatives would have done, Wolfson suggested the court would not have made what he called the “the legally doubtful — at its highest, I suggest — decision” last week to issue arrest warrants for the Israeli prime minister and his former defence minister.

On Monday, Wolfson had written a three-page letter to Hermer asking whether Benjamin Netanyahu’s immunity, as the serving prime minister of a state that is not a party to the ICC, precluded his arrest and handover to the ICC. Earlier yesterday, the foreign office minister Baroness Chapman of Darlington told Wolfson to wait and see:

There are two pieces of law here, both of which the government respect but which need to be fought out in a court. That is the right way to resolve this and that is the process that would happen should we receive a warrant and should Mr Netanyahu visit the United Kingdom.

That was not a clear answer, Wolfson complained later. But Chapman did reveal that the foreign secretary had not yet received arrest warrants from the ICC. These were not sent out routinely to all states that were parties to the court, she explained. “The warrant would be issued should it become known that Mr Netanyahu intended to travel to the United Kingdom.”

Law students who read the debate in Hansard may find it helps them decide whether they support a “thick” or a “thin” conception of the rule of law. The rest of us must wait to see how the government meets what Hermer described as its challenge.

“There is a great deal of work to be done to restore this country’s reputation, internationally and domestically, on the rule of law,” Hermer said. But we were “privileged to be in a country where there can be a rule of law debate in which there are so many areas of agreement for so many of us”.