The court system: a bleak outlook

There is something natural about someone who has come to the end of a career in a particular profession fearing for that profession’s future. After all, the profession will have changed enormously over the course of that career, and the way it looks at the end of the career may bear little relation to the way it looked at the beginning. Whereas the younger person is more likely to regard change with optimism, the older person is more likely to look at it with a sense of scepticism, leaving them genuinely concerned at the outlook for the profession.

So when a retired District Judge puts pen to paper to express his concerns about the future of the courts system one might be tempted to dismiss those concerns as nothing more than the worries of someone who no longer has a vision for how the system might be improved. But when that former District Judge is someone who is very well respected (as I can attest from my personal experience) then perhaps one should take note of what he has to say. Perhaps we should all be concerned about the future of the courts system.

The former District Judge to whom I am referring is Peter Glover. He sat as a District Judge, primarily at my local court at Dartford, from 1995 until his retirement last year. He was appointed a Legal Member of the Mental Health Review Tribunal In 2002, and a Judge of the Court of Protection in 2012. He has written numerous pieces for legal journals, including the Law Society Gazette. On Monday a piece he wrote entitled ‘Beleaguered bench’ was published in the Gazette.

In the piece he laments the state of the courts system, describing in particular how (and why) morale amongst the judiciary has plummeted over recent years. I’m not going to go through the whole piece in detail but rather highlight some of the points that he makes.

One of the first points he makes relates to the office of Lord Chancellor. As Glover points out, the role of the Lord Chancellor has altered significantly, following the decision of Tony Blair in 2003 to reform the office. Whereas the Lord Chancellor had previously been the head of the judiciary, he/ she is now just a member of the cabinet, heading the Ministry of Justice as the Secretary of State for Justice. And whereas the Lord Chancellor had always been a senior member of the legal profession (at least for over 300 years), since 2012 we have had non-lawyer Lord Chancellors. These changes have had serious implications, breaking down the relationship between the executive and the judiciary. Instead of having a Lord Chancellor who supports the judiciary, we now have one who in the recent Article 50 litigation, as Glover says, failed to prioritise her duty to support the judges over her fear of the Daily Mail.

And Chris Grayling, the first non-lawyer Lord Chancellor, who Glover describes as “the ambitious and ideological secretary of state”, decided that when judicial pensions needed reforming, rather than reducing pension entitlement for judges appointed thereafter, he would retrospectively deprive judges of the pension provision in force when they were appointed, and instead enrol them in a much less generous replacement scheme. Needless to say, this did not go down well with the judiciary, and led to the extraordinary situation of 210 serving judges making a successful discrimination claim against the justice secretary and the Ministry of Justice. But the long-term effect of the pension changes, as Glover points out, is to threaten the recruitment of the best judges, particularly to the High Court bench.

And then there is the issue of reform of the courts system generally, and the way that this has been, and is being, handled by the Government. Glover says:

“It was, of course, inevitable that the culture of austerity would impact adversely on the judiciary and the court system. Here was a sizeable cohort of highly paid lawyers operating through a widely spread, expensive and crumbling infrastructure and supported by substantial numbers of staff. The concept of local justice was seen as an expensive luxury which could not be sustained in adverse financial conditions. Centralisation and computerisation were the new essentials. Escalating court fees and the (all but) abolition of legal aid in family cases would deter citizens from using the courts. The reduced throughput of cases would, in turn, justify closures and the reduction of the workforce at all levels.”

An irony in all of this is that the abolition of legal aid has not necessarily reduced the number of people using the courts – the latest figures from Cafcass, for example, indicate that the number of private law children applications is now back up to the level it was at prior to the abolition of legal aid.

Referring to the recent Judicial Attitude Survey, which showed that more than 40 per cent of senior judges intend to quit early within the next five years, Glover goes on to talk of what he describes as the Ministry of Justice’s ‘skewed approach’ to the duty of government:

“The reasons for this malaise are various, but can be summarised as the consequences of under-investment by government in court workers, staff and judges, and their workplaces. For every Crown court equipped with shower rooms for judges, there is a county court where the toilets are never properly cleaned. For the MoJ and its acolyte, the HM Courts & Tribunals Service, spending priorities follow electoral priorities. There are votes in law and order, but none in the proper disposal of small claims and private law children cases.”

Such words from a former judge are telling. Clearly, we cannot hold out any hope that increased investment in the courts service will appear anywhere in the manifestos that the parties are currently putting together for the forthcoming general election.

Instead, the Government seems intent upon putting all of its eggs in the basket of an online court system. This, however, is a policy that risks all. As Glover concludes:

“…the outlook is bleak – so bleak indeed, that the only remedy is to dismantle the county court system in place since 1846 and replace it with an untried and hugely ambitious online justice system where personal interaction between judge and litigant is the exception to the rule. We must all hope it is successful, because there will be no way back.”

Quite.

You can read Peter Glover’s article here.