Legal aid reforms threaten the rule of law and democracy, says the lord chief justice. But he has thought of some solutions.

When the country’s top judge invokes the spirit of the Nuremberg trials at the very beginning of a speech, you know that something deadly serious is afoot. Who’s for the hangman’s noose this time, you can’t help wonder. 

But that is to mistake the gist of the lord chief justice’s (LCJ) address to the campaign group JUSTICE. The fact that these trials took place at all, he said, at great length (1945-46) and expense, showed the world that the rule of law was still paramount in a Britain left ravaged by years of war. 

Even the vilest war criminals deserve a fair trial, he said, quoting Britain’s chief prosecutor in Nuremberg, Sir Hartley Shawcross. These ‘wretched men’, Shawcross told the court on 4 December 1945, could not summarily be ‘swept aside into oblivion’ because then the rule of law would not be ‘raised and strengthened on the international plane’. Shawcross added: ‘We build on firm, principled foundations or we don’t build at all.’

The LCJ drove the point home by quoting Lord Atkin, who famously said in 1942 that ‘even during war, laws (do) not fall silent’. 

This is all stirring, albeit vintage, stuff. What is its relevance almost 70 years after the second world war ended?

It is relevant, the LCJ told us, because this country is again facing the possibility of allowing the rule of law to become secondary to other considerations. In 1945, to quote Shawcross again, the instinct was to execute war criminals ‘summarily without trial by executive action (and) let them pay the penalty of defeat’.

And today, as the budget for justice suffers substantial cuts amid general government retrenchment, there is the risk that our legal system - starved of funds - will no longer ‘remain able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age,’ the LCJ warned.

If our system is allowed to break, he said, ‘we lose more than courts, tribunals, lawyers and judges. We lose our ability to function as a liberal democracy capable of prospering on the world stage, whilst securing the rule of law and prosperity at home.

‘We can only (continue to) do that by radically examining how we recast the justice system so that it is equally, if not more, efficient, and able to carry out its constitutional function.’

It is not the first time we have been here, he reminded us. ‘The great 19th century reforms… (saw) nearly 900 years of history swept aside.’ Today, we must be equally radical in our thinking and not bound by a ‘tendency towards conservatism’ or ‘the dead hand of tradition’. It is ‘the bold who properly set the boundaries of the possible,’ said the LCJ.

This ‘innovative and creative thinking’ should be done by ‘a body independent of the state’, he said, such as JUSTICE, which is apolitical or at least balanced in its political loyalties.

He instances several possible reforms that could help compensate for the loss of legal aid in family and civil cases and help the ever-increasing number of litigants in person. ‘Serious consideration should be given to introducing a more inquisitorial form of process in civil proceedings where both or at least one party is unrepresented.’

But what effect would an inquisitorial process have on the courts’ time and resources, he asks. ‘Would an increased workload mean we would need more judges or need to introduce a new cadre of junior judges? What effect would it have on the structure of our courts and courts’ administration? What would it cost?’

He stressed that we ‘cannot look at potential options for reform in isolation’. We also need to look at the ‘nature and consequences’ of modern IT provision on court process and case management. There is also the question of simplifying procedure for lower-value cases and its consequences.

He referred to a review of the criminal courts carried out by Sir Robin Auld who, in 2001, suggested the creation of an intermediate court between the magistrates’ court and the Crown court to deal with the lower end of offences now tried in the latter court. The LCJ observed: ‘This proposal was not pursued. It was radical, but it was not the time for it.’

The LCJ also urged a review of the way fraud is investigated and tried in this country and, on a different matter, suggested that it was time to reconsider ‘altering the boundaries of cases where trial by jury is available’.

He concluded: ‘If we are to secure justice’s mastery, not just at this moment but for a very long time to come, then we all need to consider how best we can reshape the justice system and how you – members of JUSTICE – can reshape it so that it can provide detailed, well-thought-out and practical proposals setting out how that can and should be done.

‘I am sure you will do so, and that the projects you are to start work upon will do just that and we – and our commitment to justice’s mastery – will be all the better for it.’

Jonathan Rayner is Gazette staff writer