Bar to progress
Bar Council chair Derek Sweeting QC reflects on the impact of the pandemic on justice and legal rights, and the challenges faced by the legal profession in 2021
This is the third year in which the representative bodies of the three pillars of the legal profession have come together for Justice Week. This event, hosted by CILEX, the Bar Council and the Law Society, adopted as its theme in 2021 ‘Rights and Justice: the cost of COVID-19’.
The topic could hardly be more relevant. The fact that Justice Week took place exclusively online, a year after the pandemic began, is itself a demonstration of the profound effect that the virus has had on our professional and domestic lives.
Covid has not just been a health crisis - it has also been a crisis for justice and legal rights. It came at a time when there were already significant global challenges. According to the Rule of Law Index maintained by the World Justice Project, over the last three years there has been a continuing global deterioration in the rule of law, marked by the rise of emboldened authoritarian regimes. There is emerging evidence that the pandemic has provided camouflage for further encroachments.
Neglect of the justice system
In our own jurisdiction, we have seen a decade or more of neglect of the justice system. Over the last 10 years, most European countries have increased their spending on their justice systems. We are among a handful where there has a been steady decrease, and we comfortably lead the field in terms of the scale and depth of the cuts. Between 2010 and 2019, investment in justice was cut by 24% in real terms.
Over much the same period, criminal barristers have faced reductions to fees of between 30% and 40%. Many are leaving the profession or moving into other areas of work. Many firms have withdrawn from publicly funded criminal work altogether. The backlogs in the criminal courts at the start of 2020 were the result of deliberate political decisions to cuts costs by reducing sitting days.
The problems are by no means confined to the criminal courts. Advice deserts are the reality for much of the UK population. Some four years after the court reform programme began, the county court remains largely paper based.
In 2016, it took an average of 30 weeks for a small claims case to reach a final hearing. The Ministry of Justice’s statistics for January to March 2020 showed an increase to just under 40 weeks. So, at the start of the pandemic, low-value litigation, the only sort of private litigation in which the vast majority of the public is likely to be involved, already took around three months longer than it did four years ago. It has only since got worse.
Challenges will remain after pandemic subsides
The increase in legal and social problems such as domestic abuse, insolvency, family disputes, employment claims, and the increased backlogs in our courts, particularly the Crown Court and employment tribunal, are among the challenges we will continue to face even as the immediate threat to health subsides.
The pandemic has also given us a glimpse into what the future might hold if we continue to under-invest
The measures required to limit the spread of the virus have themselves involved an unprecedented interference with civil liberties. We need to take care that the steps required to restore our justice system to post-pandemic health do not involve further compromises with fundamental rights and freedoms.
There can be little debate that a central part of that recovery must involve more and sustained investment and a move to modern working practices. The need for and use that may be made of technology, as well as its limitations, have been evident over lockdown.
In comparative terms the costs of meeting this core responsibility of government are far from eye watering. As the Lord Chief justice memorably put it, the funds required are “little more than a rounding error in [the budgets of] many departments”.
The pandemic has also given us a glimpse into what the future might hold if we continue to under-invest. The parts of justice system that fared the worst have largely been those that have been most neglected and were the least resilient.
Declining social mobility
It is also apparent that the effects on the legal profession have not been equally felt. That is also true of society more widely. There is a real concern that we will see declining social mobility as a result of increasing economic and educational inequalities. Whilst the impact of the pandemic on health has been concentrated in the over-60s, the longer-term social damage is likely to disproportionately affect younger people, particularly those under 25.
Many of the solutions are complex, interdependent and will require a coordinated response at state level.
But there is much that we can and should do to address these problems ourselves. As Justice Week shows, common problems and concerns lend themselves to consideration across the entire profession. There should also be room to work together on common solutions wherever we can. I look forward to doing so during 2021.
