The future of UK Justice Policy

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In a speech entitled “What does a one nation justice policy look like?”, the Justice Secretary Michael Gove outlined on 23rd June 2015 the justice policy of the new UK Government (the reference to a “one nation justice policy” derives from the one-nation programme of Prime Minister David Cameron). He recalled the importance of the rule of law and several key events which shaped it in the UK, such as the calling of the first Parliament by Simon de Montfort in 1265 [exactly 50 years after the Magna Carta and nearly two centuries after the French Conquest of England in 1066]. He insisted on how precious the rule of law was. However, he noted that “while those with money can secure the finest legal provision in the world, the reality in our courts for many of our citizens is that the justice system is failing them. Badly”. Several examples were provided. A young woman who had the courage to press a rape charge waited nearly 2 years before her case was heard, despite the fact that reporting a rape in the first place is a traumatic experience and that it could only be made worse by having to relive it in court 2 years later. Judges questioned advocates about the most basic procedural preliminaries in what should be straightforward cases. Many cases have been derailed by the late arrival of prisoners, broken video links or missing paperwork. Both prosecution and defence barristers in a case that touched on an individual’s most precious rights acknowledged that each had only received the massive bundles in front of them hours before and – through no fault of their own – were very far from being able to make the best case possible. In short, “little had changed since Dickens satirised the tortuously slow progress of justice in Victorian times”. Hence the need to reform the justice system, both in criminal and civil matters.

In civil justice, the Justice Secretary believes that plain English should be used, rather than “legalese”, that paper forms should be replaced with questions online and that much of the administrative process should be automated. Formal hearings may not always be needed. Overall, simple issues should be considered “far more proportionately”. Telephone and video hearings should be encouraged, which will reduce journeys to courts. In order to save money, many courts buildings should precisely close. Several are already underused according to the Justice Secretary and given the fact that the court estate currently costs around one third of the entire courts and tribunals budget this is no longer sustainable.

Even with all these reforms, public resources may not be enough [despite the drastic cuts in legal aid and recent increases in court fees]. M. Gove therefore invites lawyers to work pro bono. He considers that “the most successful in the legal profession [should] help protect access to justice for all” and that even if some already contribute to pro bono work “much more needs to be done”. This is where the one nation justice policy kicks in: “it is fairer to ask our most successful legal professionals to contribute a little more rather than taking more in tax from someone on the minimum wage”.

It would be interesting to see further applications of the one-nation policy. For example, is the Government expecting successful bankers to advise individuals and companies on a pro bono basis? Many seem unable to manage or grow their finances and help would be greatly appreciated. What about those who do not provide services but deliver goods? Should companies be required to give away a certain amount of goods every year? How will the beneficiaries of this ‘generosity’ be identified? What are the sanctions? A suspension of the right to practice for lawyers? More tax? And is every international commercial lawyer feeling comfortable with housing or benefits law?

As for the other planned reforms, and as in other countries (regarding Belgium, see: An ambitious Action Plan for Belgian Civil Justice), a question immediately comes to mind: how is it possible to justify to the European taxpayer the need to close courts and in all likelihood fire staff (in a separate development 400 redundancies were announced the day before M. Gove’s speech) in the European Union whilst building and equipping for free those in non-European Union States?

From a purely politician perspective, asking lawyers to work pro bono may obviously not win many supporters to the Government among the legal community. More importantly, closing courts after drastically cutting legal aid whilst the only department of the UK Government which has been protected from cuts is the one dedicated to the development of third States may not be the best way to address the rise of the extreme-right for which 4 million voted at the last general election a month before M. Gove’s speech.

(Altalex, 3 August 2015. Article by Emmanuel Guinchard)

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