Role of Lord Chancellor “at risk of being downgraded”

Burnett: Court modernisation taken much longer than expected

The role of Lord Chancellor is “at risk of being downgraded” because the operation of the courts is now “only a very small part” of what the office-holder does, the Lord Chief Justice (LCJ) has warned.

Lord Burnett also said he was concerned that the court reform programme was being implemented too quickly because it was “driven entirely by the end dates for funding”.

Speaking to the House of Lords constitution committee, Lord Burnett said the task of running the prison system, part of the Lord Chancellor’s role when combined with justice secretary, “absorbs a huge amount of time and energy”.

While stopping short of saying that the roles should be split, the LCJ, who retires this autumn, said he could see the advantages of having a Lord Chancellor in the House of Lords.

He said the Lord Chancellor “has to be a politician of considerable substance” who could say to the Prime Minister, “No, you can’t do that”.

Lord Burnett said the “very high rate of turnover of Lord Chancellors” in recent years was “undesirable”, as was having a Lord Chancellor who was “actively or passively looking for promotion”.

He said that having a Lord Chancellor in the House of Lords would “foreclose the opportunity” of using the role to move forward to “secretary of state for anything else”.

Given that the issue of prisons was “very, very political” and funding them accounted for “the biggest part of the MoJ [Ministry of Justice] budget”, it was understandable that the attention of Lord Chancellors was “substantially diverted” and this led to “good things that need to be done being put off”.

Lord Burnett said that whether the person chosen as Lord Chancellor had a legal qualification was less important than having “in your bones” an understanding of the independence of the judiciary and rule of law.

“All I’m suggesting is that we’ve now had the current system for more than 15 years. It’s time to look at it calmly and rationally, and ask the question: Is the current system serving the rule of law and administration of justice as it should be?”

Lord Burnett said the court modernisation programme had taken “much longer than expected” and the technical difficulties had been “much greater than expected”.

He said a “reset” of the timetable, announced by HM Courts & Tribunals Service in March, was needed because it “was being driven entirely by the end dates for funding”.

The LCJ went on: “My concern is that if you run too fast, you could ensure that big parts of the programme will not work.”

He said the senior judiciary agreed to the “reset” in October last year, but the MoJ did not agree until March. He did not comment on the reasons for the delay.

Lord Burnett said he “very much hoped” the reset would resolve difficulties with the Common Platform in the criminal courts, which has been plagued by delays and technical problems. “The Common Platform cannot be abandoned. It’s the only show in town.”

The LCJ said the backlog in the Crown Courts was rising, as the number of cases coming in began to rise, while in the Family Court the number of outstanding public law cases decreased from 13,800 in February 2022 to 13,200 a year later.

On court maintenance, he said the Treasury had allocated £50m for capital expenditure in the last financial year.

Former Lord Chancellor and justice secretary Dominic Raab found £70m, because of underspends elsewhere, which “turned out to be £80m” by the end of the last financial year, but “a lot of extra money came at the end of the year when it was too late to address concerns”.

He added that he was “reasonably confident” that the position would be “much better” for this financial year, and he was “working towards” an agreement with the Treasury on capital spending which would cover both this financial year and the next.

It has been reported in the media that either Dame Victoria Sharp, president of the King’s Bench Division, or Court of Appeal judge Dame Sue Carr will succeed Lord Burnett, becoming the first woman to hold the post.

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