Falconer: New government must prioritise crime and family systems

Panel (l-r): Sir Bob Neill, Lord Macdonald, Lord Falconer, Lord Marks

The “crumbling” criminal and family systems need to be justice priorities of the incoming government, former Labour Lord Chancellor Lord Falconer said this weekend.

“Everybody knows there are 66,000 cases waiting in the Crown Court. Everybody knows the 26-week period for public law cases in family is more honoured in the breach than actually honoured,” he told the Bar Council’s annual conference on Saturday.

“The criminal justice system and the family justice system are literally crumbling.”

Stressing that he was not speaking for Labour, the KC – a partner in the London office of US law firm Gibson Dunn – said the backlog of criminal cases could not be dealt with until the prison crisis was resolved.

“The moment you quicken up the courts dealing with Crown Court cases, you immediately cause the prisons to explode, so that problem needs to be dealt with.

“As far as the family justice system is concerned, the family judges are now completely unsupported and that’s right across the unified family court. They need proper support.”

Lord Macdonald, chair of the session on ‘justice at the polls’ and a former director of public prosecutions, asked whether Labour was right to commit to building more prisons.

“I think confidence in the justice system would be hugely undermined if the position was because we hadn’t built enough prisons, everybody’s sentences were then affected by that,” Lord Falconer replied.

“I’m all for using alternatives to prison as much as possible, but for serious violent offenders and serious sex offenders, they should go to prison.”

Sir Bob Neill, who is standing down as a Conservative MP at the election and chaired the justice select committee for the last nine years, highlighted short-term measures a new Lord Chancellor should take – including reading the committee’s reports, securing money to fully fund court sitting days to start to reduce the backlog, and ensuring parity of prosecution and defence fees.

Bringing back the Sentencing Bill “as a matter of urgency” would help reduce some of the pressure on prisons.

Longer term, Sir Bob agreed with the Bar Council’s call for a Royal Commission on criminal justice – noting that his party had promised one in its 2019 manifesto – so there could be “a proper holistic look at criminal justice”.

“That’s the one thing that struck me over those nine years or so of chairing is that the pressures cannot be solved if you try and do it with a sticking-plaster approach, if you don’t realise that each bit of the system feeds off the other.”

Sir Bob, a barrister himself, added that he would also like to see “a statutory statement of the purposes of imprisonment”.

“We need I think to have a serious discussion about the fact that we spend huge amounts of what is really dead money on warehousing people with very little effort at reform.”

Lord Marks KC, the Liberal Democrats’ justice spokesman in the House of Lords, also wanted to see the end of “the pernicious Rwanda bill”, a restatement of commitment to the Human Rights Act, and investment in legal aid.

“I’ve a mea culpa here because I was in the Lords during the coalition. We took austerity far too far on legal aid and I would like to see us addressing rolling back the cuts on legal aid that we made in coalition.”

But the politicians all recognised the difficulty of persuading the Treasury to put more money into justice, despite the savings that it could deliver in the long term.

Lord Marks said the problem was that the Treasury “will insist on savings being demonstrated before the spending has been authorised and that simply isn’t the way that saving in justice works.

“You spend money on the justice system, you are saving on problems that will be caused down the line with social care, with education, with families having to be looked after and so forth.”

Sir Bob said he would also like to ditch “this Treasury concept of protected and unprotected departments, because justice suffers from being both unprotected and downstream, and that’s the worst of both worlds”.

The panel was asked about political attacks on judges and lawyers. Lord Falconer said he could speak for Sir Keir Starmer on this and say that it would not happen with him as prime minister: “He has an absolute profound understanding of the need to respect the judicial system and the independence of judges.”

Sir Bob said: “I did take the opportunity in my final ever speech in the Commons actually to make the point not only that it’s constitutionally and democratically wrong to attack judges, wrong to attack lawyers for doing their job – and I very much regret that some of my political colleagues have gone down that route – but also that it’s actually in my book very un-Conservative…

“My type of Conservatism has always been believing in institutions and respecting the institutions which are part of the checks and balances of a democratic society.”

Lord Marks called for a duty on the Lord Chancellor to defend the independence of the judiciary to be enshrined within the ministerial code.

Lord Macdonald closed by saying the justice system was at “an inflection point”.

He said: “We have had the best legal profession, the best legal system, and the best judges and we can have again, but I think money is fundamental… and on the part of the government to respect the rule of law, to respect the judges and to respect the legal process is absolutely critical.”

In his speech to the conference, Bar Council chair Sam Townend KC said the next government and parliamentarians needed to uphold the rule of law and to respect the separation of powers.

“Just this year we have had legislation that, in one instance, reverses a finding of fact of the Supreme Court, and in another, removes from the Court of Appeal and gives to Parliament and a minister the power to determine the safety of criminal convictions.  These are truly undesirable precedents.

“In one sense worst of all – as Parliament had no involvement – we have had a ministerial statement identifying an intention to appoint 150 more judges for the specific purpose of administering the Rwanda legislation, including stating that those judges are to work weekends and evenings – in effect treating judges like cattle under the direction of the executive.”

With public confidence in the justice system “shot”, Mr Townend urged proper funding for it and for the next government to “reverse the tragic evisceration of the early legal advice sector” including Citizens Advice and law centres.

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