The New Labour government came to power in 1997 committed to a major overhaul of the administration of justice in England and Wales. As Lord Irvine, the Lord Chancellor, suggested at the Conference on Constitutional Reform in January 1998, the new government’s intention was to put in place “a detailed, coherent programme of measures to decentralise power; to modernise Parliament; and to maintain freedom under the law, but to make a decisive shift to a legally enforceable rights based system for the protection of fundamental human rights” (Jackson and Leopold, 2001, p.43). A review of the contemporary commentary on the new reforms suggests that although ultimately service provision in the legal domain looks set to improve, there is a lively ongoing debate which indicates that particular reforms, notably within the areas of sentencing and legal aid, remain distinctly controversial.
Lord Woolf, appointed as Lord Chief Justice prior to the advent of the New Labour government, was charged with reviewing the civil justice system and he produced two key reports entitled “Access to Justice”, of which the Interim Report was published in June 1995 and the Final Report emerged in July 1996. Together, these Reports effectively constituted a root and branch reform of the civil procedures of the English court system and ultimately, they led to the Civil Procedure Act 1998. One major change, emanating from this Act was the formation of the Community Legal Service and the Legal Services Commission in the year 2000. This replaced the former system of civil legal aid through which people, who could not otherwise afford the services of a solicitor, were able to apply for state funding to pay for solicitors’ fees.
Lord Woolf had been concerned that the civil justice system was too expensive, with legal costs often exceeding the value of the claim made. Slapper (2003), however, cites recent research undertaken by the Law Society into the workings of the new system which shows that the cost of engaging in civil litigation has not decreased. He suggests that “lack of proper resources and insufficient enforcement of the new rules in civil courts mean that the potential impact of the Woolf reforms is limited” (2003, p. 22). Slapper notes that although a high proportion of solicitors questioned felt that the new procedures were quicker and more efficient that the old ones, costs to clients had not reduced under the new rules.
The issue of genuine access to justice through the provision of legal help has been hotly debated. The concern to cut spiralling costs has led to a shift from a demand-led system of legal aid to the introduction of a cash-limited budget. This has ushered in a fixed annual amount for legal aid work in the form of block contracting and franchised ‘fund-holders’ similar to the system originally pioneered in the National Health System. Some have questioned the implications of this in terms of the requirements of the new Human Rights Act. For example, the new cash limited system potentially compromises genuine access to justice, if a person is unable to secure adequate legal costs to fight their case, and could breach Article 6 of the Act which is concerned with the right to a fair trial. This point was tested, notably in the case of Fort William v McLean reported in The Times newspaper on 11th August 2000 and it was found that, in fact, the Article had not been breached although the issue continues to be debated.
Semple Piggott (2003) describes how research has shown that lawyers have traditionally been used by a relatively small social group, and many people who would have benefited from the services of a lawyer did not take advantage of the legal aid service. The launching of the new Community Legal Service on the internet in 2000 was seen by the Lord Chancellor as a strategically important part of the public funding for legal aid and advice. In many ways this new web service may be seen as advantageous, giving access to guidance and information to a much wider range of people than was previously the case. Many people, particularly perhaps those less articulate in ICT skills, will prefer to take up other modes of help, such as high street legal advice centres and charities like the Citizens Advice Bureaux.
Another recent reform is the review of the criminal justice system, set out in the White Paper “Justice for All” in 2002 and in the Strategic Plan for 2004-8. The overriding principle of the Plan is “to deliver criminal justice that puts the victim of crime and the law abiding citizen first” (Home Office, 2004, p.2) and key objectives are to build confidence in communities, to provide consistently high standards of service for victims and witnesses and to ensure that court orders and sentences are carried out. This radical overhaul has been welcomed by many commentators as long overdue, although there is a lively ongoing debate about particular issues. For example, heavy criticisms have been voiced by leading legal figures who suggest, for example, that “moves to end the double jeopardy rule - which does not allow a defendant to be tried twice for the same offence - and allow previous convictions of defendants to be read out in court, were undermining the presumption of innocence” (Ahmed, 2002, p.1).
The greater weighting given to the victims of crime is exemplified in the new opportunity for a victim to make a Personal Statement which may be considered, together with any supporting evidence, and taken into account by the court before sentence is passed on the defendant. The court is required to impose what it regards as the most appropriate sentence according to the circumstances of the offence and the offender, having consideration for the consequences for the victim. Slapper (2003) acknowledges contemporary controversy over whether a crime victim should have any say in the sentencing process for a convicted defendant. Some would agree with this principle, suggesting that it accords with a reasonable and natural desire for justice while opponents say although it may satisfy the victim, there is a real danger that it will encourage a system of justice based on revenge and recrimination, a trend that is essentially unhelpful and likely to reflect badly on the whole community (Slapper, 2003; Partington, 2003).
Three reforms introduced in 2003, as part of the government’s move to disengage the legal framework from politics, were the creation of a Supreme Court, the abolition of the office of Lord Chancellor and new procedures for judicial appointments. Commentators, such as Beloff (2003) and Doward (2003) acknowledge that these reforms have been received with rather more consensus, perhaps, than some of the other legal changes. As Beloff (2003) notes, all three of these reforms stem directly from the need to realign our legal system with the European Convention on Human Rights. Article 6 of this Convention, for example, cites the essence of a fair trial as the existence of ‘an independent and impartial tribunal’. The idea that Law Lords were able to adjudicate on aspects of legislation the enactment of which they, as members of the Upper House, had played an integral part has widely been seen as militating against the principle of justice being done, but also being seen to be done (Beloff, 2003).
The First Commissioner for judicial appointments, Sir Colin Campbell, was appointed in 2001, in order to exercise a fully independent role in the appointment process. A radical plan was set in motion to establish an independent panel of experts, mainly drawn from outside the legal profession, who would be responsible for selecting all future judges up to the level of the High Court. Commenting on this move to take appointments out of the control of the judiciary, Doward (2003) observes that this would “end centuries of tradition for a profession which in recent years has become concerned that its fusty image as a bastion for white, Oxbridge-educated males has deterred women and people from ethnic minorities from joining” (2003, p. 1). The creation of a Supreme Court is also heralded as a “valuable asset in a society increasingly addicted to litigation” (Beloff, 2003, p.2) and many believe that it will significantly contribute to the protection of the judiciary as an independent body (Legg, 2001). Beloff (2003), however, cites the new Commissioner’s note of caution that it would be at least ten to fifteen years before Britain had a more representative legal system.
A more recent critique of the government’s review of the justice system has highlighted the relationship between some of the reforms and the issue of social exclusion also purported to be high on the government’s agenda. Kettle (2004), for example, describes the creation of more than 600 new criminal offences by the government since its inception in its determination to crack down on crime and put the victim at the centre of its strategy on law and order alongside a commitment to tackling the social exclusion it sees as a blight on the lives of people and communities. However, it seems that these objectives may be far from compatible.
The rising rate of divorce, increased individualism in housing and employment law and the spread of a rights and financial compensation culture have all contributed to widening both the opportunity and the need for legal advice and representation (Kettle, 2004). However, whilst the rapid expansion of the legal profession, with the number of solicitors in England and Wales having doubled between 1992 and 2002, should theoretically benefit the poorer client, this has not, it seems, been the reality. Kettle (2004) argues that the increasing squeeze on public legal aid funding together with the huge rise in legal offences effectively means that “civil legal aid has become the Cinderella not merely of the public funded legal service, but of the government’s strategy for addressing poverty and exclusion more generally” (p.2). As Kettle suggests, to be denied access to advice and justice in a divorce, employment or discrimination dispute constitutes being a victim just as much as being on the receiving end of crime. This would appear to compromise the individual’s rights and exacerbate, rather than eradicate social exclusion. Kettle makes the telling comment that “ever fewer of the people who need it most are now in the position to get the advice and representation they need to make a reality of their nominal rights. They too are victims of a system which supposedly puts victims first” (2004, p.2).
In conclusion then, there have been some radical changes in the constitutional and administrative legal domain which many regard as long overdue. It would seem that, if these are to succeed in the expressed aim of separating out the political from the legislative, they could ultimately result in greater justice and an improved legal service for all though this is likely to take some time to be realised. There remain some deeply controversial issues, notably around issues of social exclusion vis-à-vis a truly universal access to justice, which have yet to be addressed.
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