The president of the Supreme Court says the challenges facing the justice system “are too numerous to mention, let alone address”.
Judges are not supposed to express political opinions, but Lady Hale said that cuts to legal aid made in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) posed a challenge to justice and made a plea for research that shows its impact.
The speech was made at the University College London law faculty on May 14 but was only published by the Supreme Court on Tuesday afternoon, as parliament prepared to close for the summer break. The day before recess is a traditional time to bury news.
News of the lecture comes as a committee of cross-party MPs has published a report saying that cuts to the criminal justice system have been so extensive that they risk undermining the rule of law. BuzzFeed News has been highlighting the crisis in access to justice caused by cuts to legal aid — and the rise of people being forced to fight their own cases with no lawyer.
Early in her speech, in honour of a foundation that funds research into justice, Lady Hale said: “So what about today? What are the challenges facing the justice system and how can empirical research help us to meet them and make things better?
“In fact, the challenges facing the justice system today are too numerous to mention, let alone address.”
In a list of all the potential challenges faced by someone in a hypothetical family law case, the first thing Hale mentioned was “the challenge posed by LASPO and the restrictions on public funding for all kinds of legal services connected with private family law disputes”.
She added: “This is a matter for government and LASPO is under review, but we cannot realistically expect much more than a rearrangement of existing funds. Empirical research could clearly help policymakers understand the real impact and how access to justice could best be improved.”
In a report published on Thursday, the House of Commons justice committee called for an urgent independent review of criminal legal aid. It warned that government reforms risk eroding rights to legal advice and representation, damaging the reputation of the justice system, and undermining the rule of law.
The committee dealt with the rise of people facing criminal charges without a lawyer, saying: “We note the emerging evidence of increasing numbers of defendants who are representing themselves, and the potential consequences of this not only for defendants, but also for witnesses and victims — as well as for the courts.”
The report also detailed pay issues for legal aid lawyers, problems in the disclosure of key evidence, and the poor physical condition of the courts.
The chair of the committee, Conservative MP Bob Neill, said: “In criminal cases, there is a common-law right to legal advice, and a right to legal representation under the European Convention on Human Rights. There is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors' firms, which places these rights at risk — a risk which can no longer be ignored.
“We heard first-hand the deep unhappiness among barristers about their situation and the future of the criminal justice system as a whole. The government cannot kick these problems down the road any longer and they must carry out comprehensive reviews to develop policies that are sustainable in the long term.
“An effective criminal justice system is one of the pillars on which the rule of law is built. Under-funding of the criminal justice system in England and Wales threatens its effectiveness, tarnishing the reputation of our justice system as a whole, and undermining the rule of law. These reviews should be carried out with urgency to end the crisis we are currently facing.”
Criminal barristers ended a strike over rates of legal aid pay last month after the Ministry of Justice offered a further £15 million to raise payment rates for reading documents in trials — but they continue to raise serious concerns.
The chair of the Bar, Andrew Walker QC, said: "This report shows clear and candid cross-party acceptance of what the legal profession has long been warning about: that years of savage cuts have led us to a crisis in criminal legal aid, which in turn threatens the future efficiency and effectiveness of our criminal justice system.
“This is casting a long shadow over the rule of law and eroding public confidence in the ability of our justice system to ensure that offences are prosecuted, and that the guilty are convicted and the innocent acquitted.”
A High Court challenge to cuts to fees for criminal legal aid work was launched last week by the Law Society, which represents solicitors. A judgment is expected in September. The society's president, Christina Blacklaws, said: “Criminal duty solicitors offer a vital public service, but cuts and the fact they have had no pay rises for more 20 years are driving more and more of them away from criminal defence work.
“Many lawyers no longer see a viable career doing criminal legal aid work, and it is difficult to attract newer members of the profession. The committee are right to call for a wider review of criminal legal aid regardless of the outcome of the legal challenge currently before the courts, given the extensive and compelling evidence of the crisis in the system.”
Spending on legal aid, which provides a lawyer to those who cannot afford one, has fallen 33% in real terms between 2011–12 and 2017–18. Legal aid now makes up less than £9.5 million of the Ministry of Justice’s total £6.9 billion budget.
The committee was also concerned with the overall dwindling of the justice budget, calling for “an urgent cross-departmental review of funding for all elements of the criminal justice system, with the aim of restoring resources to a level that enables the system to operate effectively.”
An MoJ spokesperson said: “We are already conducting a wide-ranging, evidence based review of the reforms to legal aid. We are talking to stakeholders across the profession and will take these views into account when considering the future of legal support in the justice system.
“Ensuring everyone can resolve their legal problems is vital to a just society. The reforms under LASPO did not significantly change the availability of legal aid for criminal cases and last year alone we spent almost £900 million on legal support for these cases.”