Transforming justice – beyond the bombast

It comes as a bit of shock to realise that I have been reading documents such as the Ministry of Justice’s Transforming our Justice System for more than 40 years.

Lord Hailsham was lord chancellor when I took up this burden: Liz Truss looks like being in post when I lay it down. I can see the danger of a jaded nostalgia for a past that really did not seem so good at the time. I do not dissent from much that is in this paper: what gets me down is its poor technical quality. I do not believe that permanent secretary of the ministry, Richard Heaton, would have dared present it to Lord Mackay, who was in office when Heaton joined the Government Legal Service.

Let us note with just a background harrumph the status of this document, split between a ‘vision statement’ (God help us) and a summary/consultation paper. The main version starts badly and gets worse.

Sir Oliver Heald can just about get away in the consultation paper with asserting in his own name that our justice system is ‘internationally revered’. The anonymous authorial voice of the main paper cannot reasonably translate this into the unsubstantiated statement that ‘our justice system is the envy of the world’. For a start, no civil jurist – German, French or otherwise – would ever have accepted this on philosophical grounds.

Second, I travel the world talking about legal aid. I can tell you that many of our former ‘enviers’ in places such as eastern Europe and common law countries such as Canada are dismayed at the demise of large swathes of legal aid that once operated to counterbalance the high costs of our adversarial system. And, of course, Americans are sufficiently insular never to have envied anyone else anything. The statement is simply not true.

As the opening bombast in the paper dies away, we get to the heart of its vision. The coming transformation will be built on three ‘core strengths’: it will be just, proportionate and accessible. So far, so good. However, accessibility gets a somewhat narrow definition. It includes availability, intelligibility and accommodation to disability. It does not include cost – a somewhat telling omission because the paper on our justice system deals neither with legal aid nor court fees.

This paper was preceded by one by Lord Justice Briggs which was expressly limited to the structure of the civil courts (though the good judge had some acerbic comments to make on the level of court fees). The government has chosen to broaden the topic. But you cannot do that selectively without dealing with matters deeply interlinked with court structures. It is intellectually and politically dishonest.

There is a substantive political problem here. The coalition was dominated by the perceived need to make massive savings in public expenditure. Cuts were rushed through on timescales that did not allow thorough consideration. The key issue for government now is to make sense of the results. We no longer have legal aid for family cases in the way that we did. Practitioners can continue to rail against that but, practically, the cuts are irreversible.

The challenge for the ministry is to make sense of the provision of assistance at reduced levels. The paper, somewhat pathetically, mumbles that ‘we are considering how best to help separating couples’. Well, hello. You chose the timing and scope of the paper, not us. But you are not ready to come up with proposals for the family courts, which are widely accepted as being in crisis. Much the same arises in relation to how those who cannot use the internet are to be assisted. The need is acknowledged but serious discussion of how to meet it is missing. Publication of the paper in these circumstances is premature.

The paper has a major problem with detail – usually too little but sometimes too much. The criminal section includes a proposal to extend the right to plead guilty by post ‘where there is no clear identifiable victim’. The consultation paper suggests that this process will be trialled in railway and tram fare evasion and possession of unlicensed rods and lines. The last seems just bizarre. The first two are odd.

There is an identifiable victim: the transport company. There is also an existing fare penalty system of diversion from court. You could say that privatisation means that fare evasion should be decriminalised. You could argue that there is no problem dealing with offences of dishonesty by way of administrative rather than judicial process. But if you do then you should argue the point, because it is highly contentious. A conviction for dishonesty can have severe consequences in terms of travel and employment.

The real danger is that the Ministry of Justice will prove as inept in implementation of its proposals as it has proved in articulating them. Mr Heaton or Ms Truss, can you reassure us on this?

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice