BLAIR’S BRITAIN, 1997–2007
Page 49
for the first time broken. John Morris MP QC, a Secretary of State for
Wales in the last Labour administration, was succeeded as AttorneyGeneral by Lord (Gareth) Williams of Mostyn QC and, when the latter
became Leader of the House of Lords, by Lord Goldsmith QC. Lord
Falconer QC was the first Solicitor-General and he was succeeded by
Harriet Harman, a solicitor (so, paradoxically, aligning title with titleholder). She was then made a QC and so was Mike O’Brien after her.
Before 1997 the Solicitor-General used to act as the Attorney-General’s
deputy and carried out functions delegated by the latter. Since the Law
Officers Act 1997, which made the roles interchangeable, the two ministers could divide the duties between themselves as they saw fit, but
custom, if nothing else, preserved a vertical rather than a horizontal relationship. They have achieved functional but not political parity.
The Attorney-General continued to appoint the Director of Public
Prosecutions (DPP), oversee the work of the Serious Fraud Office (SFO)
and the Treasury Solicitor’s Office (TSO), and represent the Crown Court
31 Beloff, ‘Paying Judges’, p. 17.
32 Cm. 5389-11, para. 4.26, discussed in Frances Gibb, ‘Low Point for High Court
Appointments’, The Times, 5 March 2002.
in major international litigation and trials of the constitutional dimension.
Lord Goldsmith, an accomplished advocate, was particularly engaged by
this aspect of his role. But it was during his tenure that the position of
Attorney-General as a member of the government, yet simultaneously its
independent legal adviser, came increasingly under scrutiny. His advice,
allegedly in contradiction to his first impression, that the invasion of Iraq
in 2003 would be lawful;33 his role in halting the inquiry into corruption
linked to the sale of BAE systems to Saudi Arabia;34 and his assertion in
2007 that he retained a necessary part in any decision as to whether or not
Blair allies could be charged in relation to the receipt by the Labour Party of
undisclosed loans by putative peers, prompted suggestions that his office
should be decoupled from government altogether. The seed planted in the
dying months of the Blair administration may flower in the post-Blair era.
The criminal justice system
During the period under consideration both criminal and civil court
structures and systems were subject to intense scrutiny. A review of the
Criminal Courts of England and Wales (2001) was carried out by Lord
Justice Auld, and many of its recommendations were implemented in the
Courts Act 2003. A key proposal that Crown Courts and Magistrates
Courts should be amalgamated into a single court was, however, rejected;
moving together was preferred to merger. The Criminal Justice Act 2003
made practical provisions for ensuring that fewer cases went to the
Crown Court.
A single Commission of Peace for England and Wales was created to
give JPs a national jurisdiction, though in practice they will continue to
sit in local justice areas. But concurrently ninety-eight local courts
closed,35 increasing numbers of legally qualified District Judges (previously stipendiary magistrates) sat together with or in place of lay justices,
and authority in many areas with implications for delivery of justice was
transferred from the justices to their clerks. There was in consequence
a growing sense that, notwithstanding repeated statements by Lord
Chancellors to the contrary, there was a hidden agenda emanating from
the Home Office to abolish the very system of lay justice.
33 A decision whose legal merit was questioned by many eminent lawyers: see e.g. Lord
Alexander of Weedon QC, Tom Sargant Memorial Lecture, 10 October 2003 at the Law
Society, and Professor Philippe Sands, Lord Mischon Memorial Lecture 2005, at UCL.
34 Which prompted a judicial review by two public interest bodies – unresolved at the point
of writing.
35 The Magistrate, May 2007.
Juries, however, remained talismanic. The Home Office consultation
paper in July 1998 considered unavailingly the abolition of right to jury
trial in respect of a range of offences, including grievous bodily harm and
theft. Provisions of the Criminal Justice Act 2003 which allow a trial by
judge alone where there is a ‘real and present danger’ of jury-tampering, or
in complex fraud cases where the interests of justice are thought to require
it, are yet to be brought into effect. Concern continued to be expressed as
to whether juries – another amateur institution in a professional world –
were the best instrument of justice, barely mitigated by the abolition of
various immunities for jury service including counter-intuitively those of
barristers and judges (in the Criminal Justice Act 2003).
One major fraud trial (‘the Jubilee trial’) collapsed under its own
weight in 2006 at a cost to the public purse of £60 million, and the
prospect of a system straining under the burden of an ever increasing
number of lengthy terrorist trials (for which a special panel of twentyone judges was created) prompted further anxiety.36 But the civil liberties
lobby in parliament retained the upper hand (especially in the Upper
House) to defeat or compel withdrawal of tentative government efforts at
diminishing the role of juries.
The subject of ‘Crime and Penal Policy’, the fruit of the criminal justice
system, is dealt with elsewhere in this volume.37 From the perspective of
the judiciary, ‘the torrent of criminal legislation’38 posed problems in
practice as well as of principle, as successive Home Office ministers struggled to give useful meaning to the Blair first mantra ‘tough on crime’.
Lord Justice Rose spoke for many when in the course of one of his judgments he described the provisions of the Criminal Justice Act as
‘labyrinthine’ and ‘astonishingly complex’,39 adding for good measure in
another case that they were ‘deeply confusing,40 and concluding ‘we find
little comfort or assistance in the customary canons of construction for
determining the will of Parliament which were fashioned in a more
leisurely age and at a time when elegance and clarity of thought and language were to be found in legislation as a matter of course rather than
exception’.
Judges remained concerned at the end as at the outset of the Blair
administration that their purpose to make the punishment fit the crime
36 See the account of the experience of one juror in the bomb plot trial, The Times, 3 May
2007, p. 6.
37 See chapter 15, p. 318.
38 Lord Bingham, ‘The Rule of Law’, p. 9.
39 R v . Lang (2005) EWCA Crim 2864 2006 1 WLR 2509, para. 16.
40 R (Crown Prosecution Service) v. South East Surrey Youth Court (2005) EWHC 2929
(Admin) 2006 1 WLR para. 14.
was being impaired by legislative incoherence, political pressure and lack
of prison space.
Civil justice system
Auld followed Woolf. The Civil Procedure
Act 1997 (providing a statutory foundation for the Report of Lord Woolf into ‘Access to Justice’)
received the Royal Assent in February 1997, just before the demise of the
Major administration. It was enacted against a background of continuous change in civil justice: judicial case management, alternative dispute
resolution (ADR), conditional fees for personal injury and insolvency
cases were already part of the legal landscape.
But if the Conservative government was the midwife, the Blair government was the nurse of the new civil procedure rules (CPR) which came
into effect on 26 April 1999 and were described as ‘a new product code
with the overriding objective of enabling the Courts to deal with cases
justly’. They were infused with the concepts of proportionality – the
devotion of time and money not in excess of that required by the issues at
stake41 and equality of arms – that, so far as practicable, parties should be
on an equal footing – and designed to eliminate delay, expense and complexity. There were provisions to promote settlement42 and to mitigate
the traditional adversarial culture. Judges were to manage cases both pretrial and at the trial; and were no longer to allow parties (and their
lawyers) to dictate the pace of legislation. Under the rules there were
developments of group litigation orders (GLO) and the representative
action, stopping short, however, of full-blown class actions, US-style.43
Archaic phrases were removed from the vocabulary of the rules, although
not all changes clarified, and traditionalists regretted the replacement of
pithy Latinisms with more ponderous Anglo-Saxon prose.
Before 1997 appeals in civil cases from the County Court and the High
Court were generally heard by the Court of Appeal. Sir Jeffrey Bowman
identified the work load of that court as excessive.44 Part IV of the Access
to Justice 1999 Act (AJA 99) reformed the system. In civil and family cases
41 Small claims were allocated to a fast track and there was a multi-track for more complex
litigation.
42 Simon Roberts ‘Settlement as Civil Justice’, Modern Law Review, 63, 2000: 739, a step not
far enough according to some. Rachel Smithson, ‘Some Difficulties with Group Litigation
Orders – and Why the Class Action is Superior’, Civil Justice Quarterly, 2005: 40 (see also
212).
43 Smithson, ‘Some Difficulties’.
44 Report to the Lord Chancellor by the Review of the Court of Appeal (Civil Division) 1997.
permission is normally required to appeal any first-instance decision and
more appeals are dealt with at a lower level than before.
The consistent themes in the reorganisation of court business in the
civil and in the criminal field during the Blair years were flexibility in
deployment of judicial resources, the allocation of cases to the lowest
appropriate level, and the increasing involvement of judges in administration at the expense of judging. Beneath the surface of formal adjudication by judges there developed an emphasis on ADR,45 encouraged by
the Lord Chancellor’s Department (LCD) (subsequently renamed the
Department of Constitutional Affairs and latterly the Department of
Justice) and indeed blessed by the courts themselves,46 not only arbitration but mediation, conciliation and negotiation.47
Only Coroner’s Courts survived the tide of the reform and a Bill is proposed for the next session of parliament to modernise the last relic of a
medieval legal system whose peculiarities were exposed in contentious
litigation over the format of the inquest into the death of Diana Princess
of Wales.48
Legal aid
The AJA 1999 provided for two new schemes to replace the existing legal
aid scheme whose origins lay, like the National Health Service, in the
post-war Atlee administration, and which was similarly subject to
increasing strains as demand outweighed capacity. A Legal Services
Commission (LSC) was established to create, maintain and develop a
Community Legal Service for civil and family cases. It has a duty to use its
resources reflecting the priorities set by the Lord Chancellor to secure the
best possible value for money and to liaise with other funders of legal services. The Commission was also to be responsible for a Criminal Defence
Service (for the first time in England) providing a Public Defender
Service (PDS).49
45 Alternative Dispute Resolution (ADR 1999).
46 Cowl v. Plymouth CC [2002] 1 WLR 803, Dunnett v. Railtrack Plc [2002] 1 WLR 2434.
47 See Henry Brown and Arthur Marriott, ADR Principles and Practice, 2nd edn (London:
Sweet and Maxwell, 1999).
48 R (on the application of Paul and others) v. Deputy Coroner of the Queen’s Household and
Assistant Deputy Coroner for Surrey; R (on the application of Al Fayed) v. Deputy Coroner of
the Queen’s Household and Assistant Deputy Coroner for Surrey [2007] 2 All ER 509.
49 Derek O’Brien and John Arnold, ‘Salaried Defenders and the Administration of Justice
Act 1999’, Modern Law Review, 63, 2000: 394.
Publicly funded legal services could only be provided by those who
held Legal Service Commission contracts (building on a franchising
system in place since 1994) to those who survived both a merits and
means test. Previously lawyers were paid after the event, calculated by reference to time expended on the case; thenceforth they were to be paid by
block contracts with prices fixed in advance. But the contract system necessarily limited suppliers and inevitably imposed regulatory and administrative burdens on solicitors.
From 1 April 2005 there was a mandatory system of fixed fees covering
all types of controlled civil work, except immigration. When graduated
fixed fees were introduced for family and criminal work, barristers took
the view that they were being denied ‘proper remuneration’ and voted to
abandon the cab-rank rule for cases subject to the system. There was even
a brief strike.50
A letter to The Times on 30 November 2006 from a Law Society Council
member suggested that the rise in legal aid spending was not the result of
professional inefficiency but ‘bureaucracy imposed upon solicitors by the
Legal Services Commission; more and more legislation, policies and initiatives; sloth and incompetence in the manner that cases are investigated and
considered for charge; poor listing practices in the Magistrates Courts and
the Crown Courts; incompetent management of the Courts along with too
many managers and not enough people processing the work’. Fixed fees, it
was suggested, led to fixed amounts of time and effort devoted to the work.
But whatever its cause, the fact of the rise was undisputed and in July
2006 Lord Carter presented a Review of the Legal Aid Programme at the
invitation of the Lord Chancellor, which made sixty-two recommendations for a move to a market-based approach (a characteristic Blairite
concept). Among the key ones were: best value tendering for legal aid
contracts based on quality, capacity and price from 2009; new responsibilities for the Law Society and the Bar Council to enhance the quality of
the legal aid supplier market; fixed fees for solicitors carrying out legal aid<
br />
work in police stations to encourage more efficient practices, including
cutting costs related to waiting and travelling times; revised graduated
fees for Crown Court advocates and a new graduated fee scheme for
Crown Court litigators to reward earlier preparation and resolution of
cases; tighter control of very high cost criminal legal aid cases; standard
fees for civil and family legal help, and new graduated fees for solicitors in
private law family and childcare proceedings.
50 See further restrictions contemplated by the Criminal Defence and Services Act 2006.
The Law Society criticised the complexity of the LSC’s draft contract
terms. The Bar applauded the revised advocacy graduated fee scheme
(RAGFS) in place in April 2007, which ended a decade of diminution (in
real terms) of the value of fees for defence work, and a redistribution from
long cases (which enabled a few barristers to earn enviable sums from the
public purse) to 1–10 day cases, but objected to proposed rates for long
complex cases, and price competitive tendering (PCT). Both branches of
the profession were united in their concerns about the future of publicly
funded legal provision. ‘We are facing’, the president of the Law Society
recently wrote, ‘the long term under-funding of an impoverished legal aid
system and the additional threats posed by the government’s foolhardy
timetable for changes in the legal system’.51 Both the professions anchored
their criticism in the needs for the vulnerable (those accused of crimes,52 in
family disputes, or seeking welfare benefits) to be properly represented.
The government, while careful not to suggest that the criticism was
fuelled by professional self-interest, contended that the ever growing
demands for legal services were putting intense pressure on the national
economy, but like Harpagon in Molière’s L’Avare, who aspired to a better
table at a lower cost, claimed less convincingly that better justice could be
provided at less expense. A variety of judicial review challenges, claiming
in particular that the reforms will put small firms servicing minority
communications out of business, are in the pipeline.53