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November 1, 2018

Why is the justice system so starved of resources?

The timing of Justice Week was unfortunate given it started with the Chancellor announcing a cut to the budget of the Ministry of Justice of £300 million on resources and £200 million in capital spend. Few other departments have been so hard hit over time, particularly ones which cannot control most of their workload – including the number of crimes prosecuted and the sentences those convicted receive. Though the budget of the Ministry of Justice seems to be a moving feast. This year they are predicting a £1 billion overspend on a £6.5 billion budget and they have overspent in previous years too.

A few things have kiboshed this year’s budget – £126.2 million is owed due to overcharging of fees, including £18.4 million for council tax liability orders and £82.1 million owed by the Office of the Public Guardian – it’s not clear what for. £64 million extra has been handed to CRC companies who complained that they were not making enough money from their probation contracts.

In order to plug some of these financial holes, the department ditched a capital spending programme to build new prisons and a major project – Transforming Compliance and Enforcement Programme – aimed at improving the collection of fines and compensation orders. The fines situation is a bit mad – over £1 billion in fines is outstanding. Thousands of people must end up not paying their fines at all, yet I know some poor souls find bailiffs on their doorstep to recover a relatively small sum.

The budget announcement this week highlighted the finger in the dyke approach to justice finances.  Instead of insisting that the department reduced its demand for prison places by sentencing and bail reform, the Treasury has agreed to bankroll the building of two new prisons – despite the fact the department has only just used the capital funds they had been allocated for prison building to plug resource gaps. Even if they build two new prisons, the resource budget will have to rise to accommodate their running costs. So we will be back to square A.

Justice Week brought many a study on the parlous state of the justice system. The Bar Council commissioned Professor Martin Chalkley to look at justice funding over the last ten years. It is downbeat picture – the overall reduction in spending is c 30% whereas health has had a 25% uplift in the same period. Not every function of the Ministry of Justice has been hit equally. The courts service has had a 31% growth in expenditure, while the Legal Aid Agency has had a 32% cut. Policy and associated services have been cut by 82%. This matters because the civil servants who are left don’t have time to think strategically. Many are fire-fighting all the time.

As the Bar Council report points out, the decline in justice budgets has little to do with austerity. “In the context of an economy that has grown 13 per cent in real terms, tax-financed funding for the Ministry has declined by 27 per cent. That is a huge withdrawal of public finance support for what must be regarded as a fundamental and integral part of the state’s functions and obligations.”  Meanwhile the cuts continue to bite.  The Legal Aid Agency recently tendered for contracts for housing duty solicitors (who help prevent people being evicted) in four areas. In three of those areas, no contract was awarded, presumably because no firm felt it was financially viable to apply. @acriminalhack this week tweeted that he had just done a six hour mention hearing which earned him £3.13 per hour after paying his expenses.

But why doesn’t justice get more funds? A Justice Week survey found that “78% of respondents agreed with the statement that ‘justice is just as important as health or education” and a similar percentage said people on low incomes should be able to get free legal advice. I think there a few reasons why the Ministry of Justice has suffered so much worse than other departments

  1. The merry go round of Lord Chancellors in the last few years – six in eight years – means the Ministry of Justice has lacked a consistent champion. I suspect each new incumbent has been too optimistic about the potential to cut, and only those who stick around know how difficult this is.
  2. No Lord Chancellor has been around long enough to redesign the system so the resources are sufficient. Shrinking the criminal justice system (so fewer were charged and prosecuted) would enable proper justice for the cases which did go to court.
  3. The Ministry of Justice is a small department and, as such, has little clout in Whitehall.
  4. Notwithstanding the justice week survey, ministers and parliamentarians just don’t believe that starving justice of funds is a vote loser, whereas they are convinced that cutting health and schools is.

The results of the cuts are clear – on the criminal side, courts risk becoming conveyor belts for guilty pleas, while civil courts are being taken over by bewildered litigants in person. Digital court reform may exacerbate both trends. Unless the Ministry of Justice continues to overspend its budget or gets a windfall, the system looks fragile. Within the current budget envelope, the only answer is to shrink the criminal justice system and redesign the civil system to include mediation/ODR and to reduce complexity – so everyone involved can easily understand what’s going on. Simples.