News focus: Tories give little away on justice

With so much Brexit noise emanating from the fringes of the Conservative Party conference last week, justice was never going to get much of a look-in.

Indeed, lord chancellor David Gauke – the first solicitor to hold the post – did not even mention the words ‘access to justice’ in his keynote speech in Birmingham, preferring to concentrate on prisons and rehabilitation policy. No one expected much else, but a minister pushing through the Civil Liability Bill and Courts and Tribunals Bill might have thought both deserved a mention.

Part of the problem was the party does not appear to have much more to say about how it could improve access to justice. There is no significant extra money, clearly, and so ministers find morsels hard to conjure up. When asked what she could offer aspiring legal aid lawyers, justice minister Lucy Frazer QC largely avoided the question. She also declined to answer, incidentally, whether she had read the Secret Barrister’s excoriating take-down of the justice system.

In contrast to the Labour conference, where policies were announced with the blank-cheque verve of a party out of power, the Conservatives simply hold the line that they commit £1.6bn to legal aid every year, and are investing in court modernisation.

‘This billion-pound programme will ensure greater access to justice for people using our court system,’ Frazer told a fringe event hosted by LawWorks and Young Legal Aid Lawyers. ‘The use of technology will make our systems more user-friendly.’

On a similar theme at an earlier meeting, she insisted lawyers will still play an important role in future, but the language was still about guiding litigants away from court.

She said: ‘It is really important people understand the position they are in. The forum doesn’t need to be the same for everybody – not every case needs the same level of legal expertise and doesn’t necessarily need the same input.’

So where can Frazer and her colleagues make changes in how the justice system is run? Perhaps by ensuring people never enter the system in the first place.

Lawyers have long argued they are being blamed for the costs of a system inflated by a string of challenges to the policies of Whitehall departments. Be they social security appeals, or challenges to Home Office immigration decisions, the Ministry of Justice clearly feels it is having to pay out to cover other departmental mistakes.

In a candid admission (one that she repeated at another fringe event), Frazer revealed that she held inter-departmental talks last week to press home the importance of other ministries getting their decisions right and not leaving themselves open to challenge.

‘We took the decision in 2012 [legal aid] would be spent on people who are the most vulnerable,’ said Frazer. ‘Where there is no legal aid, all parties have an obligation to ensure the presentation of all the facts. Other government departments have a role and an obligation to ensure that. Those who are in the courts system are often other government departments.’

Recent estimates indicate that 71% of decisions against assessments for personal independence payments are quashed on appeal, while half of immigration appeals are successful. The courts are being burdened with the failure to get decisions right the first time.

That is ultimately what this all boils down to. The MoJ, which is dealing with a 40% real-terms cut in funding between 2010 and 2020, is still at the back of the queue for handouts. Neither Frazer nor Gauke, it would appear, can persuade the Treasury to cough up more.

This matters, because within months the government will complete its review of the Legal Aid, Sentencing and Punishment of Offenders Act.

Voices in favour of reform are not just Labour voices. Veteran MP Bob Neill, chair of the Justice Select Committee, told a fringe event he now regrets voting for LASPO in its present form and has plenty of ideas for improvement.

‘We went too far in a number of areas,’ said Neill. ‘If we were able to put some money into early advice that is money well spent. There is no doubt about the pressure being brought on courts by the growth in litigants in person. It takes longer and is a false economy.’ On disclosure in criminal law, Neill added: ‘The system is wrong when it does not reward the solicitor and barrister for looking at unused material.’

These will be welcome words for those pinning their hopes on a government rethink. It will be for everyone invested in the justice system to make sure their voices are not drowned out in these crucial coming months.