Incredibly Painful To Deliver

If John Smith had lived, then Labour would still have won the 1997 General Election, and Robin Cook would have been Foreign Secretary until the day he died, with all that that would have entailed. But Gordon Brown would still have become Chancellor of the Exchequer and eventually Prime Minister, while the pre-2007 Home Office would have been headed by Tony Blair, meaning that the social authoritarianism of New Labour would still have been implemented. For example, the legislation renaming Stipendiary Magistrates as District Judges goes all the way back to 1999, meaning that a Bench Division has been the intention for a very long time. By that means, it would still be the result of the Courts and Tribunals Bill even in its supposedly moderated form. Thus, and although she is wrong about the Employment Rights Act, such as it is, Sonia Sodha writes:

There is a well-known trick chancellors use to balance the books in tough times. Because the fiscal rules demand that the deficit is eliminated in five years’ time, they promise to cut public spending not in the next couple of years, but later in the cycle. Jam today, dry toast tomorrow. Jeremy Hunt did it, Rachel Reeves did it and so did John Healey in his first budget.

The move has invoked even more scepticism than usual this time because the pain will be augmented by Healey’s pledge to increase defence spending, and the cuts would land just before a 2029 election. The fundamental problem is there is no fat to trim from departments whose spending was hit hard by austerity.

One of the worst affected was justice: the courts and tribunal system has been badly undermined by sustained underfunding. It is a relatively easy area to cut politically; people end up in the courts only when something has gone seriously wrong, so they touch many fewer lives than services such as hospitals and schools. For most of us, the rule of law remains a happily abstract concept and our knowledge of the justice system comes from television dramas.

Today, justice funding is 25 per cent lower per person than it was almost 20 years ago. This shows up in the dilapidated state of court buildings, with their leaking ceilings, asbestos and rat infestations, but also in record backlogs that mean people are waiting many years before their cases get anywhere near resolution.

In criminal trials, this means criminals are more likely to get away with it as witnesses become harder to track down. Victims’ lives are put on hold, and the innocent have charges hanging over them for longer before they are cleared. Sir Keir Starmer’s answer included taking away the right for defendants to be tried by jury for offences attracting a prison sentence of less than three years. Critics rightly pointed out that, for marginal efficiency gains, this would increase the risk of miscarriages of justice for people accused of fairly serious crimes.

Andy Burnham wisely dropped the most controversial aspect of the reforms, judge-only trials for people facing prison sentences of between two and three years. But he has kept the rest: increasing magistrates’ sentencing powers to two years; removing defendants’ right to choose a jury trial in the crown court for mid-tier “either-way” offences; and removing the right to automatically appeal against magistrates’ verdicts to the crown court and have a trial reheard in front of a jury.

There are two problems with this. Juries provide a triple safeguard against convicting the innocent. Ten to 12 fellow citizens — not one judge — must agree someone is guilty based on the evidence. The process of deliberation can help iron out human biases. Jurors have not heard the same defence run over and over, or sentenced countless criminals: they bring a fresh perspective to every case.

Magistrates’ courts, in which charges are tried either by three lay volunteers, or by a single district judge, have historically dealt with minor offences that do not result in prison sentences. Under the government’s reforms, magistrates’ sentencing powers will have quadrupled in only four years, and they will be trying more complex crimes, with serious consequences for reputation and liberty.

The second problem is that the backlog in the magistrates’ courts is even worse than in the crown court. These reforms risk simply moving cases from one horribly overloaded part of the system to another. It is not clear that it is even practically feasible to expect volunteer magistrates, many of whom have day jobs, to go from hearing cases that generally last less than a day to complex multiday trials.

Things are no better when it comes to employment disputes. The recourse for employees who have been unfairly sacked or discriminated against is an employment tribunal. But the waiting list has grown and, in a system that was originally supposed to dispense user-friendly, speedy justice, cases are routinely taking three or more years to make it to a full hearing, rendering it near-impossible for workers to meaningfully enforce their rights. In the face of these delays, many give up and move on, leaving the worst employers to get away with unlawful practice. Artificial intelligence has made the problem worse as employees without lawyers use it to draft pages and pages of claims that take longer for the system to digest.

Ministers risk making the situation worse through the Employment Rights Act, which lays out a host of new rights including giving more employees rights against unfair dismissal, expanding employer liability for third-party harassment and allowing employees more time to submit legal claims. There is a danger that introducing more rights into the system further increases the backlog. The government is also lifting the cap on unfair dismissal claims in a way that will be of little benefit to workers on average wages but will incentivise the highest earners to bring big, complex claims they would previously have been able to take only to the High Court, crowding out claims from lower earners.

This is the high price of justice done on the cheap: a greater risk of miscarriages of justice, victims waiting years for verdicts, employees with no effective recourse for unlawful treatment at work. And all this is before enforcing the planned cuts factored in to this week’s budget. It shows why Healey’s task is so gargantuan over the next few years: the savings he has already baked in to his spending assumptions are going to be incredibly painful to deliver.