Address given at the Southwark Legal Service
On Monday 18 November, Southwark Cathedral hosted the annual Southwark legal service. Each year those connected with the administration of the courts of Southwark gather in the Cathedral to pray for the work of the judiciary.
The following was the address given by The Rt. Hon. Baroness Hale of Richmond DBE, President of the Supreme Court.
We are here to celebrate and to thank God for the justice system here in Southwark and south London and throughout the country and to pay tribute to all those who work in it – from judges and magistrates, through the court staff, to the lawyers who use it, and to the police and prison and probation officers who do its bidding. Yet we do so at a time when the justice system is undergoing revolutionary change in an attempt to continue to deliver access to justice after enduring the most swinging cuts since the austerity programmed began in 2010. There are three main aspects to this revolution.
The first is the digitisation of civil and family processes, so that much of the work can be done on line from remote locations. There is even talk of allowing unrepresented defendants in criminal cases to enter a plea on line. The second is the development of video-links so that, where face to face hearings are necessary, they too can be held remotely. And the third is the closure of more and more physical court rooms.
Each of these developments brings advantages but each of them also brings disadvantages – as a very recent Report from the House of Commons Justice Committee on the Court and Tribunal Reforms has shown. First, digitisation is all very well but it only works if those who are designing the software know what they are doing – understand the law and the legal procedures involved and can see them from the point of view of the court user – whether lay or professional – who needs to be guided through the process. And, as the Committee points out, ‘poor digital skills, limited access to technology, low levels of literacy and personal disadvantages experience by particular groups create barriers to access to digital justice services’. And even tech savviness is not the same as legal savviness. So some form of legal help will still be needed. And although the service is committed to keeping paper processes alongside the digital ones, it is unclear how users will be able to obtain and complete necessary documents without using the internet or having the support of a legal adviser.
Second, video hearings, as we know in the Judicial Committee of the Privy Council, can reduce the cost of bringing people to court from long distances – but we are talking about thousands of miles, not short distances across London. The Justice Committee is concerned that some defendants appearing by video link face barriers in communicating with their lawyers and the court. They also comment that the video equipment can be unreliable and of poor quality – as we know only too well in the Privy Council. There must be sufficient investment in good quality equipment and efficient wi-fi. And, in their view, video hearings may compromise justice for vulnerable people – so everyone should have the right to decline to give evidence by video and the choice to come to court.
Third, court closures can, of course, free up resources which could be better used elsewhere in the system – for example in properly repairing and maintaining the remaining court buildings. But that does not seem to be what is happening – only this morning we heard of a court ceiling collapsing in Nottingham. And meanwhile court closures in both urban and rural areas have created serious difficulties for many court users. One example is the closure of youth courts in Southwark, Lewisham and Greenwich, leading to cases being transferred to Bromley – and, according to the Law Society’s Youth Justice expert, ‘gang warfare’ breaking out in the court there. Indeed, the Children’s Commissioner is so concerned about the ‘chaotic and dysfunctional’ youth justice system that she is planning a wholesale review of it next year.
As the Justice Committee point out, this all has constitutional implications which merit the scrutiny of Parliament. We all – lawyers and politicians alike - talk a lot about access to justice and the rule of law - but what do we mean by them? As my successor as President of the Supreme Court, Lord Reed, said in the case brought by UNISON to challenge the imposition of prohibitive fees for employment tribunal claims,
‘At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced’.
That means applied and enforced by and against everyone – not just individuals and businesses but government and public officials too: as Thomas Fuller put it in 1733, ‘Be you never so high, the Law is above you’. But laws are of no use unless people have access to the courts to apply and enforce them. To return to Lord Reed:
‘People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations.’
That’s why most cases don’t need to go to court, because people do as they should. But it is also why access to justice for those who do need to go to court is of benefit to every single one of us. As John Locke put it in 1690, ‘Wherever law ends, tyranny begins’.
Of course, no-one pretends that the law is perfect – it may indeed be a ass, as Mr Bumble said in Oliver Twist – nor do we pretend that the lawyers and judges are perfect – it’s just that we are far, far better off with them than without them.
But here we are, in the throes of a general election campaign, with all the parties making lavish spending promises. I am not making a party political point when I implore them to acknowledge the serious problems that the justice system is facing, to recognise how important that justice system is for each and every one of us, and to promise to give it the resources it needs to do the job properly. As my predecessor, Lord Neuberger, has said: the first two obligations of government are the defence of the realm from its enemies and the maintenance of the rule of law at home.
This is the truth. On Saturday I had the privilege of attending the installation of the new Dean of Westminster in Westminster Abbey. In his sermon, he lamented that it had become necessary to remind politicians of the importance of telling the truth – as if there were any alternative. I am sure that everyone here today would be grateful if our politicians – not just those on the Justice Committee - could tell the truth about the justice system. In the meantime, we continue to give thanks to you and to God for the great work that you continue to do.