So, you’d prefer Corbyn then?

Humanity is actually under the control of dinosaur-like alien reptiles called the Babylon Brotherhood who must consume human blood to maintain their human appearance.

-David Icke

It’s been a strange summer. I became very unwell in early July, with an admission to Accident and Emergency with a 10 hour wait to be seen, and then this month surgery as my condition had become acute. General anaesthetic, catheterisation, blood loss, infection, antibiotics, another infection, more antibiotics and throughout a patina of pain.

It really is awful growing old. I would run away from it if I could.

I am now home. And getting better. Whereas a fortnight ago, I could only manage to walk 50 yards before having to sit down, this morning the Labrador and I managed a 5 mile walk.

Of course, my planned 3 weeks of surfing on the west coast of Portugal, with grilled fish in beachside restaurants accompanied by a jug of cold vinho verde whilst watching the sunset, crumbled into dust as I contemplated the world from my hospital bed.

Now that I have returned, things seem even stranger than they were before my absence. The government has largely disappeared, the country is sliding towards an economic abyss and the criminal justice system has collapsed. Although much of the detailed content of this blog, is focused on civil costs, a concern for access to justice cuts across all areas of legal practice, and in a sense criminal justice  is the part of the overall system that non lawyers most readily relate to, and which permeates popular culture in a way that the county court never will.

Of course, things are also looking bleak for civil justice too. If 1 million people refuse to pay their energy bills in October and cancel their direct debits, the civil justice system may also collapse, as it will prove impossible to enforce the claims for debt and attempts to collect payment will founder under the numbers.

The likely contender for the prime ministerial chair has already explained how she does not believe in giving “handouts” but would prefer small government, doing fewer things better and tax cuts. Against such insouciance even the right wing press, is having difficulty convincing itself, that the country is about to get the leadership it deserves.

I remember well how the merits of Mrs May were talked up favourably in 2016, before the emergence of Magic Money Tree economics and her replacement by the MayBot gave the lie to that deception. Or the confident predictions by commentators who should have known better, that surrounded by the “right team” the flaws of Mr Johnson would be outshone by his undoubted optimism and ability to “get things done”.

Well, here we are.

So how did we get to this ghastly state of affairs? With police investigations stretching into years, thousands of people subject to open ended investigation, custody time limits honoured in the breach, crumbling courts and barristers exercising a right to withhold their labour, with the consequence that the Crown Courts may be open but have no customers?

The roots of the current crisis are planted very deep. They lie in the political prioritisation of reductions in public expenditure over maintaining taxation. They are part of a wider economic picture where the reduction in public expenditure has been made at the cost of those who are paid their wages, salaries or profits from the public purse. More generally, in the economy over the last 50 years, the share of the profits of economic activity taken by those possessing capital has increased to 60% from 40% at the expense of those possessing only their labour. The reason that this has happened is not due to the inexorable triumph of capitalism, or the failure of socialism or any other “ism” you care to name, but because the rules, or laws, of the market have been progressively written and rewritten, to favour the interests of capital.

The concept of a free market is an oxymoron. There is no ready formed market in the state of nature. It is a construct of law. Simple examples of those laws will suffice. Legislation for low taxes on corporate profits favour the interests of capital. Minimum wage legislation favour the interests of labour. Test this hypothesis in two ways: if your wages, salary, or profits were 50% higher than they currently are, or might have been but for the changes to these and other laws, of the last 50 years, would you be as concerned about inflation or energy price rises as you probably are? I suggest not.

Or if you are a certain age, like me, do you remember when a single wage earner in the 1970s could support a family in a decent standard of living, pay a mortgage, and look forward to a retirement paid for by a final salary pension scheme? Set against the need now for 2 working parents to grind themselves into the dust, to pay for a large mortgage on a modest house at what are still abnormally low interest rates.

But I think the pendulum has now swung sufficiently far against labour and in favour of capital, that it is ready to swing back again. And the consequences will be profound for good or for bad. It will have effect on every area of our lives, including the justice system, both criminal and civil. At the most basic level, if you want people to do a proper job, they must be paid properly. Thus there is an opportunity.

I believed for many years that law and politics, whilst inextricably linked were two different sides of the same coin. That the lawyers and the judges, dealt only with the administration of law and were not concerned with politics. I now believe that the relationship between law and politics is more akin to that of a Mobius strip: it is impossible to ignore the relationship or even to tell precisely where politics ends and law begins.

In recent years, the Brexit litigation which reached the Supreme Court, the further Supreme Court decision on the prorogation of Parliament, the attempt to stymie the remit of the Employment Tribunal through the imposition of fees which impecunious workers simply could not pay and now the collapse of the Crown Courts are examples of the interweaving of politics and law. 

If the criminal Bar collapses because the economics of private practice no longer work, then the system will be forcibly rebalanced. If the duty solicitor scheme collapses, because solicitors in Lincoln are expected to travel (without pay) to Skegness, or from Exeter to Barnstaple, then the system will be forcibly rebalanced. I fear that it will be rebalanced in a way that impedes access to procedural and substantive justice.

But part of me hopes that out of the chaos and change will come a rebalancing and revivification of the criminal justice system, reversing the trends of the last 30 years. So the current problems facing access to justice, most pressingly in the criminal sphere, but also increasingly in the civil sphere are I would suggest political, rather than technical or procedural.

Which brings me to the issue of civil legal costs reform, which is, again, on the agenda. Reforms to the rules governing civil legal costs in particular the agenda for fixed costs should be looked at, not narrowly or only technically, or procedurally but fully, on the basis of what the political consequences of reform should be for the structure of the legal profession and the quality of justice that will ensue.

I shall give you some examples.

The withdrawal of Legal Aid and then latterly the implementation of LASPO 2012, has profoundly affected the number of solicitors undertaking personal injury work. This has meant an aggregation of such solicitors into fewer and larger firms. It has also increased the commoditisation of such work and reduced consumer choice. Is that a desirable outcome?

If a scheme of fixed costs is put into place which contains no ringfencing of certain elements of costs for work traditionally done by barristers, then they will no longer be instructed to do that work. That will mean the withdrawal of barristers from those areas of work, fewer barristers in turn and a smaller Bar. Is that a desirable outcome?

Whether you take the view that either of these consequences is desirable or not, they should surely have been grasped or be grasped, as part of the overall package of consequences. To do otherwise represents the worse kind of folly: short term decision making which recognises the price of everything and the value of nothing.