INTERVIEW: ‘We don’t have a right of access to courts that is guaranteed in a written constitution,’ says Sir Henry Brooke. ‘From Victorian times, the Treasury has regarded justice as something that was being sold by the state.’ According to the former Court of Appeal judge, the ‘Treasury dogma’ of full costs recovery in the civil and family courts – i.e., that court users should pay their way – explains successive governments’ attempts to save money by making cuts to the courts and wider justice system. That said, Sir Henry has ‘some sympathy with ministers, who are under pressure from the Treasury to make savings’.
Sir Henry – a former Lord Justice of Appeal and Vice-President of the Court of Appeal – has over the last 30 years seen the impact of such cost-saving initiatives and their disproportionate effect on vulnerable and marginalised communities. Speaking to wwww.thejusticegap.com, he said:
‘The cuts have had a disastrous effect on the rights of ethnic minorities. There are people who are having a rotten time suffering from discrimination in the work place and suffering from discrimination at the hands of the police and so on. They are already having problems in a world of welfare cuts where incomprehensible laws are being created.’
By way of an example of the impact of the recent cuts in funding for the courts, Sir Henry cites hearby dates – i.e., the amount of time between an appeal being filed and being heard.
Following a reform of the justice system in the mid-90s, the hearby dates in the Court of Appeal have steadily been reduced. In August this year however these were suddenly increased to 15 or 19 months (depending on whether permission was granted with or without a hearing). This extension takes into account an increase in cases but, rather than allocating more funding to deal with the extra cases, there will be greater delay in the already lengthy appeal process. That, says Sir Henry, was ‘all to do with funding’.
He also flags up the 30-40% turnover of court staff he had once observed in a single year in Central London. ‘I always had the highest possible opinion of court managers. But they are battling against enormous odds compared with comparable organisations both in the public and private sector.’
Sir Henry chaired the Bar’s first ever computer committee in 1985 and was a founder member of the Information Technology and the Courts Committee. To what extent can technology assist in making savings? ‘I remember a very experienced district judge telling me that she spends about a quarter of her time sorting out the papers,’ he replies. ‘If you consider a district judge earns on average £100,000 a year, if they are spending a quarter of their time sorting out muddled papers then that is a fairly phenomenal waste of taxpayers’ money.’
‘In the UK we don’t have a constitutional right of access to courts so, right from Victorian times, the Treasury has regarded justice as something that was being sold by the state. Therefore, if the state was selling something, it ought to get the full cost of what it was selling.’
Sir Henry Brooke has also been a mediator and says that, unlike most court cases, mediation offers individuals the opportunity to feel they have been heard. Whilst the courts are struggling to accommodate so many litigants in person, he reckons that judges are doing their best with what they are given.
‘I come across horrific cases that need a lawyer but the attitude of ministers is that there will always be someone around to help or you can handle it on your own,’ says Sir Henry, who is patron of the Zacchaeus Trust which helps vulnerable debtors. ‘Well lots of people can’t do it on their own.’
‘People are having real problems in this environment of welfare cuts. Every day incomprehensible legislation is being made even more incomprehensible and, whereas previously legal aid lawyers and law centres were there to help, legal aid has been scrapped. This has had a disastrous effect.’
As a sitting judge, Sir Henry would regularly visit prisons. The Coalition government under the April 2013 LASPO cuts removed legal aid for much of prison law. The then Lord Chancellor Chris Grayling described his plans to cut legal aid for prisoners as ‘ideological’. ‘I do not think prisoners should be able to go to court to debate which prison they sent to,’ Grayling told MPs.
What does he make of the cuts? ‘The former Lord Chancellor put his faith in the prisons complaints system when he deprived prisoners of any legal aid in relation to the way they were being treated in prisons,’ says Sir Henry. ‘However, you have got to have tribunals and adjudicating bodies that command trust from the people using them and it is even more important when you have got people locked up for long periods. Prisoners do not trust the fairness of the complaints system.’
Another Court of Appeal judge, Lady Justice Black, recently expressed the problems faced post-LASPO litigants in person by saying: ‘Where the appellant is unrepresented this requires all those involved in the appeal process to take on burdens that they would not normally have to bear.’ Back in 1995 Lord Woolf said: ‘Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of justice exists’.
How have the courts changed in the last 20 years? ‘By the mid 1980s criminal legal aid was getting out of control and steadily the Treasury was saying to the Lord Chancellor that they weren’t willing to continue funding it unless concessions were made in other areas,’ Sir Henry replies.
He continues: ‘There was more or less a compact 100 years ago that the litigants would pay for the courts’ staff, then in 1983 it became the rule that they would also pay for the court buildings. Then the Treasury finally triumphed in 1992 when the Lord Chancellor was on his knees as criminal legal aid was spiralling totally out of control and agreed that civil and family litigants would pay for the judges as well.’
Sir Henry says that he is ‘very depressed to hear what is happening now’ but – he adds – ‘pleased that others who are in the field at the moment are equally as depressed and also willing to do something about it’.
Alex Cisneros is a barrister practising out of No5 Chambers. He specialises in public law