The Law plc

Francis FitzGibbon

When Tony Blair announced radical changes to his mentor Lord Irvine’s job as Lord High Chancellor without warning in 2003, he provoked the wall-paper connoisseur and would-be Cardinal Wolsey into resigning. The horse-trading that followed gave us the Constitutional Reform Act 2005, which stripped the Lord Chancellor of his judicial role, set up the Supreme Court as the final Court of Appeal for the UK, and a new Department of Constitutional Affairs, with an elected MP to be secretary of state instead of a peer. It changed its name to the Ministry of Justice in 2007, and has mushroomed.

The Lord Chancellor title remains, as little more than a Gilbert and Sullivan prop. Lord Chancellors used to be lawyers of some standing as well as politicians, and were usually on the way down in politics when appointed. Until 1990, the permanent secretary had to be a barrister with at least seven years experience. Now, the qualification for the minister's job may be legal, or just ‘other experience that the prime minister considers relevant’ – which can mean anything. The first two ministers of justice, Jack Straw (a barrister for a short time in his youth) and Kenneth Clarke (a seasoned hack on the Midlands and Oxford Circuit), were at least not strangers to the law, and were on the way down in politics, not desperate to make their mark. Clarke’s successor, Chris Grayling, with ‘relevant’ experience as a TV producer and media consultant, brought no legal knowledge whatever to the job, and is an ambitious man on the way up.

He has improbably united the entire legal profession, the judiciary, and virtually everyone else who knows about the legal system, against his plans to wipe out legal aid and make access to good lawyers available only to the rich. But not content with this, his department now proposes to privatise HM Courts and Tribunal Service, which owns and manages all the courts and tribunals in the UK. The use of private suppliers may be sensible, if they give value for scarce public money and the contracts are well managed. Many individual services have long been outsourced, and the track record is poor. Prisoner transport vehicles often turn up late, or not at all, for lack of staff. The outsourcing giant Capita provides cut-price interpreters who don’t arrive or speak the wrong language. G4S and Serco receive over a million pounds a year for tagging offenders, and are under investigation for massive overcharging. The MoJ paid Capita £52 million in 2012. Serco got £856 million.

Now, according to a memo leaked to the Times last month, The MoJ wants to transfer 20,000 HMCTS staff to the private sector. Grayling denies there will be ‘wholesale’ privatisation, and he could hardly do otherwise because judges are not for sale. This will be no heroic Thatcherite liberation of moribund state enterprises to newly enfranchised citizen-shareholders, but another outsourcing job to the one of the usual suppliers. The transfer of the Courts Service into private hands is bound to create the potential for serious conflict of interest, between the private companies’ duty to maximise profit for their shareholders and the public confidence in the impartiality of the legal system. It’s counterintuitive at least to imagine running a law court for private profit. Grayling rightly thinks that commercial legal services contribute to the national economy because the high reputation of our legal system attracts many international litigants, private and corporate to settle their disputes here. It’s another thing to commercialise the whole court service. The MoJ has already volunteered to take a 10 per cent cut in next month's spending review, and therefore has to spend less or raise more money.

Maintaining the legal system in a country which observes the rule of law must be a core function of the state. The system derives its legitimacy in part from its independence from commercial interests. The 2005 Act requires the Lord Chancellor to swear an oath to ‘respect the rule of law, defend the independence of the judiciary and discharge my duty to ensure the provision of resources for the efficient and effective support of the courts for which I am responsible’. We aren’t told what happens if he breaks the oath.