June 30, 2010: Ken Clarke's Speech on Criminal Justice Reform
Lord Chancellor and Secretary of State for Justice Ken Clarke has given a speech on criminal justice reform at the Centre for Crime and Justice Studies. Crimlinks publishes the full speech below:
Public services from first principles
My return to government has been surprising. These are quite remarkable days. I am very glad I didn’t retire because the recent political events have been so extraordinary and unpredictable, leading to a hung parliament which I dreaded, to a coalition government which I welcome. Like most Ministers I am a slightly displaced person. I was prepared to take office in another department, if we won, and like my entire Ministerial team we found ourselves in a department which we were not prepared for, but which I think we all very much enjoy. In my case, my career has almost come full circle because I was a practising member of the Bar, I have been Home Secretary and I find myself in subjects in which I am at least familiar and which I am steadily forming a sense of purpose about.
One reason I have hesitated to make speeches on the subject before is that it takes time to decide what policy line you're going to pursue, dealing firstly with the acute financial crisis – which the whole government has to do – but then trying to turn necessary financial stringency into some constructive and sensible policies. I don't want policy just to be determined by cuts. I did not come into politics in order to be a semi-accountant in my approach to public affairs.
I have made many speeches about the economic mess we have inherited. I have been one of the most vehement advocates of getting on top of the debt and deficit problem. That is going to concentrate all our minds across government, but it in some cases will make us much more creative.
Richard Garside referred to the quite astonishing increase in the budget of the Ministry of Justice in the last few years, which has contributed to this great deficit, but it’s not particularly this department. I was saying this morning when people were interviewing me, that the explosion and the sheer size of the state, most of its activities is in a number of areas quite remarkable. I personally don't approve of a state which takes 50% of the GDP, and in any event we can't afford it.
So one starts by not only looking at the budget but by looking at public services from first principles and deciding what it is the tax payer should be paying for. We have to face up to the question how we make savings without damaging public services, and to reconcile drastic and necessary cuts in public spending with positive policy making.
Salami slicing budgets can cause unintended damage to the public good if all you're trying to do is comply with the demands of the Treasury. So going back to first principles, how can we deal with the problems we face and provide the services that the public interest demands in a more targeted way?
My priorities are to punish offenders, protect the public and provide access to justice. They seem to me the obvious and basic aims of my office, my department, and my team of Ministers. The proposals I’m going to outline today in relation to the courts, legal aid and sentencing will have proper regard to each of these priorities.
Courts reform
I have already made some announcements about aspects of courts reform, because for courts and legal aid, I am confident that we can use our resources far more effectively. The one announcement I have made on the cost effective provision of buildings for the court process seems to me an obvious and early step to take.
There is no doubt that our courts sit in a large and historic estate of underused buildings. Now obviously people have got to have access to court services a reasonable distance from their home. But the courts estate we’ve actually got has developed piecemeal over many decades and in some cases still reflects how far it was reasonable for a man to ride a horse. Certainly our courts estate no longer matches where the centres of population are or where transport networks can most easily take them. Most importantly, some court buildings are significantly underused and do not have enough work to justify the cost of building and maintenance – and we have very large arrears of maintenance, as is sometimes only too obvious if you visit some of our court buildings.
Many courts do not have the standard of facilities we expect of a modern justice system. Some have no space for witnesses to sit apart from each other and the other parties’ families and supporters. Others are not properly accessible to disabled people. Still more lack suitable secure facilities for prisoners. We all know that for most people, certainly for lay people, a visit to court is an extremely unpleasant experience.
Obviously it would be nice, for historic reasons, if we could keep all of the old court buildings that we are used to across the country. But in these difficult times, an under-used and under-repaired courts estate is an extravagance we simply cannot afford. So we have identified the potential to make a one off saving of £21 million and annual savings of £15 and a half million in running and maintenance costs. These are savings we must make, and we’re now consulting about the issues posed in the closure proposals.
Financial reality should make us not only question whether we need this large and scattered estate of buildings, but should provoke us to think about whether there are more sensible ways of transacting the business of justice today.
Of course it is absolutely right that trials of serious issues are heard in a way in which we are all familiar, in open court. Witnesses can be cross-examined properly, and the public and the media can see exactly what is going on.
We are certainly not going to deny people the right to have their day in court. But do we need to force people to take a day off work to go to court for what are sometimes quite routine trips to a court building – for things like council tax arrears, TV licence infringements, procedural steps in a case leading to adjournments, for instance? I am not convinced that all minor, non-contentious cases or all stages of a case need to be heard in a traditional court setting.
We are therefore looking in to different methods of delivering justice without the need for the full grim court experience. That means using technology. And it means things like alternative dispute resolution in some areas.
Now before anybody thinks we might be going wrong here, I am certainly not going to go down the path of all-singing, all-dancing IT schemes to replace large parts of the courts system. The history of the public sector – including NOMS – is positively littered with grand, imaginative IT projects that have failed to deliver and led to appalling waste.
But I think we may be able to find sensible ways of using modern technology so people don’t always have to go to court and disputes can be resolved quickly and effectively. This is why we published a consultation last week on how we can best use the courts to meet the modern needs of local communities. That is what my colleague, Jonathan Djanogly, is going to carry through in detail over the next few months.
Legal aid reform
It is just as clear to me, turning from the matter of our scattered and sometimes redundant courts estate, that we must make major changes to the system of legal aid. I’m afraid it cannot be immune from the same searching analysis to which we are subjecting every other area of public policy and spending.
Now as I already stressed, I want to get away from salami slicing the legal aid budget. It is a painful process that does Minister, lawyer or client no good at all. Instead, I want an approach that balances necessary financial constraints with the true interests of justice.
Nobody feels more strongly than this Government about the need to make sure everyone has access to the most important aspects of justice. In particular, the poor and the vulnerable need access in cases where their liberty or key aspects of their wellbeing are at risk.
I suppose in an ideal world we would have a national legal service, in the same way as we have a National Health Service. That has been proposed from time to time in the past, and I believe it was proposed in the politics of post-War England. But ever since the last World War, anyone looking at this sensibly has had to admit that we cannot afford it, and we never have had a national legal service. We’re actually in a position where we cannot even afford the system we’ve now got.
Our legal aid system has grown to an extent that we spend more than almost anywhere else in the world. France spends £3 per head of the population. Germany; £5. New Zealand, with a comparable legal system, spends £8. In England and Wales, we spend a staggering £38 per head of population.
I recently met my New Zealand opposite number, who was struggling with the problem of controlling his legal aid budget. I pointed out that it was only 20% of our own.
So there is good reason for having a hard look at our legal aid system. That means asking basic questions about what access to justice means and what part of that access it is right to expect the state to provide and taxpayers to pay for.
When is it reasonable to say to someone, you really can afford to pay for that yourself, or you really should have insured yourself against that unlikely legal event? Of course I understand the right and desire of people to use the law to settle disputes and to assert claims. But what is the balance between the assertion of rights and the responsibility to accept the burden of using your own resources to assert them? It may be that people sometimes have to pay more of their own legal costs than has been the case in some areas of the law in the recent past.
We are always going to have to provide legal aid for criminal cases. But it must be means tested. I cannot believe it is right that 1% of criminal cases, the so-called ‘very high cost cases’, consume 50% of the Crown Court legal aid budget.
Nor am I convinced that in many private family cases the traditional adversarial system is necessarily best for the parties involved or the best use of public funds. In the worst cases, bitter disputes between spouses and partners are actually, in my opinion, made worse by repeated and fruitless battles between lawyers in court hearing after court hearing. Might we be better off focusing more on better and less legalistic ways of seeking to resolve highly charged emotional disputes between former partners in broken relationships? At the moment the usual approach is the adversarial court battle and legal aid for lawyers on both sides.
A review chaired by David Norgrove is underway to search for more civilised ways of handling disputes over children, property and some of the most important human aspects of peoples’ lives.
So we will be carrying out a fundamental reassessment of legal aid over the coming months and then asking for people’s views in the autumn. I am only too conscious that legal aid is a key part of the income of the legal profession, who are key defenders of justice and the rule of law. Of course citizens wish to press their claims and assert their rights. But it is justice itself that matters. It is justice in the public interest that matters. We must spend what the taxpayer can afford on legal assistance only on those issues where the public interest requires it.