Courts: Resourcing and Staffing

Lord Lester of Herne Hill Excerpts

Thursday 14th July 2016 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, I congratulate the noble and learned Lord, Lord Woolf, on organising and leading this debate, and the Woolf judicial quintet, who we are privileged to hear and enjoy. I also congratulate the new Lord Chancellor and Justice Secretary on her appointment and wish her a successful period in office. I hope that she will not seek to replace the Human Rights Act with a weaker British Bill of Rights. That would be a mistake. It would threaten the unity of the realm, which the new Prime Minister rightly cherishes. I hope also that the noble Lord, Lord Faulks, will continue to lie upon his bed of nails and advise the new Lord Chancellor as he advised the previous Lord Chancellor, Michael Gove, as to what should be done in that area. The new Justice Secretary faces formidable challenges, many of which are highlighted in the Motion and speech of the noble and learned Lord, Lord Woolf. We must all wish her success: justice, justice, justice may she pursue.

The present British judges are the best in the world, but the new Justice Secretary will face a serious crisis affecting the rule of law, as explained so powerfully by the noble and learned Lord, Lord Woolf. Next year around half a dozen vacancies will arise in the Supreme Court of the United Kingdom when the present incumbents reach retiring age. It is essential to fill those vacancies with judges of the right calibre and experience from all parts of the country. The previous Justice Secretary proposed the employment of a new chair of the Judicial Appointments Commission, the noble Lord, Lord Kakkar. I hope that the new Prime Minister will agree to his appointment. He will have the task of encouraging well-qualified candidates to apply to be High Court judges, and as the House has already heard, that will depend in part on the support they will have on the Bench. It is essential that there are sufficient resources to enable courts and tribunals to function effectively and to make life on the Bench attractive. When I served on the Constitution Committee and the Lord Chief Justice gave evidence, in my questioning I explained my own failure to persuade senior and experienced practitioners, women and men, to apply to be High Court judges. I tried, I tried again, and I completely failed.

The chairman of the Bar Council, Chantal-Aimée Doerries QC, has explained in her letter the Bar’s concerns about the current level of investment in the courts and the administration of justice. She accepted that judicial salaries have never been able to match the earnings of the most successful practitioners, but she went on to point out the security afforded by judicial pensions as an important incentive to attract the best-quality candidates, without whom the risk of decline in the standing and quality of the judiciary is very real, as other noble Lords have explained. In the evidence of the Lord Chief Justice to the Constitution Committee in April this year, he pointed out that a new High Court judge will have a pension materially less than that of a district judge. That will lead to a decline in the standing and quality of our judiciary, with a knock-on effect on the quality of our courts and the rule of law.

The morale of both the Bench and staff in the courts service is low. The first Judicial Attitude Survey, conducted in September 2014, had an 89% response rate. Some 65% of all judges reported that morale among court staff is poor, while 40% reported that the level of administrative support is low. The Bar Council reports that courthouses are in a state of disrepair with poor facilities in courtrooms up and down the country. The failure to invest means that many courts have not been modernised and lack modern means of communication to provide for better access to justice.

Successive Governments have treated legal aid as the Cinderella of the welfare state, an easy target for Treasury raids. Yet access to justice is as important as access to healthcare. The swingeing cuts to legal aid and the imposition of court and tribunal fees have contributed to poor working conditions and threaten the rule of law. In the civil system the number of litigants in person has rocketed, with a 30% increase in family court cases where neither party has legal representation, and in 80% of cases at least one party does not have legal representation. Litigants in person result in emotionally charged courtrooms and delayed cases, which can have a profound effect on the effectiveness of court operations and hinder access to justice.

The situation is no better in the criminal courts. In May, the Public Accounts Committee warned that the Government,

“has exhausted the scope to cut costs without pushing the system beyond breaking point”.

In some areas, even if the court makes full use of its allowance of sitting days, there are not enough judges to hear all the cases, and the Ministry of Justice has been too slow to recognise where the system is under stress and to take action to deal with it.

The investment of £738 million in the modernisation and digitising process is essential and welcome. The online dispute resolution model has great potential and wide support, but clarification is urgently needed as to whether there will be funding available for legal representation or costs recovery. Without such funding, a two-tier justice system which, like the Ritz Hotel, is open only to the rich, violates the rule of law.

The Lord Chancellor is under a statutory duty to ensure that there is an efficient and effective system to support the carrying-on of the business of the courts. The new Lord Chancellor will have to persuade the new Chancellor of the Exchequer to enable her to perform that duty. By that, she and the Government will be judged.