Westminster Watch

As the Bar leaders’ evidence cuts to the core on what’s wrong with the criminal justice system, Mark Hatcher puts his hope in Gauke to deliver a larger share for justice


Bob Neill, the Chairman of the Commons Justice Committee shared the frustrations of thousands of commuters who have suffered from the new railway timetable shambles as he arrived breathlessly just in time to start the committee’s second session on criminal legal aid. Minutes before the session was due to begin, Neill was handed a copy of a statement announcing the criminal Bar’s decision to accept the government’s proposals for addressing concerns about the new Advocates’ Graduated Fee Scheme (AGFS) which had threatened to bring significant disruption to the courts.

By a very narrow majority, 51.5% of the criminal Bar voted for acceptance, 48.5% against. The figures bore an uncanny resemblance to the result of the EU referendum two years ago (51.9% voted leave, 48.1% voted to remain).

The Justice Committee listened intently to a double act from the Chair of the Bar, Andrew Walker QC and Criminal Bar Association Chair, Angela Rafferty QC about AGFS and what has been going wrong with the criminal justice system. Walker gave a dispassionate potted history of successive waves of cuts which had been inflicted on the AGFS since its inception in 1997, supported by a flurry of statistics. The settlement reached with the Labour government in 2007 following Lord Carter’s review saw an overall increase in fees under the scheme of 18%. It looked good but since inflation over the period had been running at 26% the outcome for the Bar was not so good. In 2010, post the crash, the Ministry of Justice announced that rates would be cut by 13.5% over three years. By 2014 the Bar had decided enough was enough. With the prospect of no returns under the scheme, the Ministry and the Bar called a truce and agreed to work together to devise a new funding arrangement. The overall reaction to the scheme, which resulted from a public consultation in 2017, was a recognition by the Bar that there were many positive elements in the structure. But the rates payable were always too low and the principle of cost neutrality was something that was never accepted by the Bar.

Angela Rafferty’s assessment cut to the core. The criminal Bar had faced ‘degradation and despair’, language which Bob Neill characterised, not unsympathetically, as extraordinarily strong, as he recalled Lord Reed’s speech in the UNISON case that justice is not a commodity, it is a public good.

The committee’s oral evidence session with the Bar’s leaders showed what select committees, putting aside the temptation to grandstand with witnesses (as well as the media), can still do rather well particularly with well-briefed, legally qualified members – there are five of them on the Justice Committee – and specialist legal clerks, which is to elicit the facts and reach a level of informed understanding with which to go back to Ministers and press for an appropriate response.

The Justice Committee could therefore be helpful in advocating the Bar’s case to the government not just on the specific matter of AGFS adjustments but also on the wider issue of resourcing the justice system for the future. The Bar Council’s sense is that MoJ Ministers hear and understand the profession’s concerns as well as those which have been, and no doubt will continue to be, expressed by the Justice Committee about funding justice. For its part the Bar now needs to assemble a solid evidence base which the Ministry must have to enable it to put a compelling case to the Treasury in the next Spending Review for justice in government. This is necessary to achieve a re-balancing after the savage cuts in the MoJ’s budget to which Chris Grayling signed up (which included the outsourcing of probation) and which, in addition to savings measures to which Michael Gove committed, has left the department struggling to deliver across its core functions.

The Lord Chancellor’s previous ministerial experience over no less than seven years in three different roles in the Treasury (including as Chief Secretary, with responsibility for public expenditure and a seat in Cabinet) will have equipped him very well to pitch the case for more money and gain greater clout for justice in Whitehall. He is much better placed to do this than any of his recent predecessors apart from Ken Clarke who was constrained by the public expenditure crisis and the need for austerity measures with which the Coalition had to deal in 2010.

David Gauke certainly understands the importance to the UK’s international reputation of how justice is treated in public expenditure terms. He has expressed interest in articulating the economic value of the rule of law, a challenge which should be pursued by an enterprising think tank perhaps like Reform or Policy Exchange. But Gauke will need to work hard on his colleagues to persuade them that a department which is not ring-fenced (unlike education, health and international development) deserves a larger share of the cake. He will also need to persuade his successor as Chief Secretary to the Treasury, Liz Truss. Her brief tenure as Lord Chancellor was not rated highly by Theresa May resulting in what was for Truss effectively a demotion with all the legacy emotion that goes with that.

The Ministry of Justice has been a poor relation when it comes to supporting citizens, compared with the health and education departments whose responsibilities and front-line providers are much better understood by voters especially when the delivery of public services is seen as close to collapse. The high turnover of Lord Chancellors (six in the last eight years) has not helped but, on his past form, Gauke could be set for the longer term.

So the Chair of the Bar and the CBA Chair were both right to acknowledge the important work of the Justice Committee in bringing the issues currently facing the justice system to the attention of the government and the public, which will be supported by their inquiry into disclosure of evidence.

The hope expressed by both Bar leaders that politics should be taken out of justice or legal aid as much as possible was understandable. But the belief that there might be sufficient cross-party support to take forward the recommendations of the Commission on Access to Justice, set up by Jeremy Corbyn and chaired by former Labour Justice Minister, Willy Bach (who had to administer an earlier round of AGFS and other cuts in legal aid) looks a little unrealistic given the current febrile state of relations between Labour and the Tories and within them.

The Prime Minister’s decision to fund a massive £20bn a year increase extra cash into the NHS by 2023-24 (that is £600m a week in cash terms – more than twice the annual AGFS spend), partly from the ‘Brexit dividend’ and tax increases signals an insistence that the UK will leave the EU in 2019 and thus infuriate pro-Remain MPs and Peers who have been urging for the UK to stay within the bloc or at least keep the closest ties. The health budget bonanza represents a victory for Jeremy Hunt and Boris Johnson but Mrs May will face a backlash from Tory MPs at the party conference in a few months’ time by opening the door to increased borrowing and higher taxes.

In the meantime the greatest challenge to delivering Brexit is the inability of a split Cabinet to make critical decisions. As a recent report from the Institute for Government concludes (Preparing Brexit: How ready is Whitehall?) political tensions are encouraging secrecy, where access to key documents is highly restricted and important information is not being shared between departments. Those outside government with a legitimate interest to be kept informed, including Parliament and business as well as the professions are being kept in the dark. Preparations are being hindered by competing ministerial preferences, lack of information and the deferral of critical decisions on the UK’s preferred future relationship. This is not a recipe for good government and it is not good for our parliamentary democracy.

Mark Hatcher, Special Adviser to the Chair of the Bar

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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.