Sir Keir Starmer KC is a renowned barrister, former chief prosecutor and darling of the human rights brigade. But none of that will count for much with the legal profession — and court users generally — if his week-old government doesn’t tackle the perceived ills in the justice system.
More specifically, the criminal justice system — with ever-mounting delays in the courts and bursting prisons — is seen to be at crisis point.
“We look forward to seeing how the new government will invest in and sustain our criminal justice system in the short and long term,” said Tana Adkin KC, chair of the Criminal Bar Association, who wryly noted that “previous governments — including Labour — have sought to manage the system on an ever-decreasing budget in real terms regardless of the need for investment in the civic buildings that contain it and the people that deliver it”.
Adkin was one of several members of the legal profession great and good to speak to The Times in the wake of Labour’s historic landslide win last week.
The Bar Council and Law Society — the umbrella bodies representing barristers and solicitors, respectively, in England and Wales — were predictably cautious and banal in their welcoming of the Labour administration. However, Nick Emmerson, the society’s president, did note that the new justice secretary, Shabana Mahmood, must invest in a “root and branch review of the whole justice system, including legal aid and courts estate. At the same time improving access to justice is a priority — we have to ensure everyone, with no exceptions, has access to advice and representation.”
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Adkin sent an even tougher message to Starmer and Mahmood, however. “It is about time that the state recognised that the criminal justice system underpins our society and needs to be trusted by its people to deliver justice for all in a timely fashion, rather than being a political football used to bolster popularity,” she said.
And there was a similar message from a KC who bears the scars of recent battling in government for the justice system. Sir Robert Buckland, the Tory justice secretary between 2019 and 2021, dished out some specific advice. “Labour have to find new ways to manage the remand population more effectively and to put more offenders on to intensive community-based penalties that restrict liberty and allow monitoring but without using prison places,” he said.
Tom Franklin, the chief executive of the Magistrates’ Association, agreed, saying that “we must have a grown-up discussion about sentencing. It is generally recognised that short custodial sentences are not very effective in promoting rehabilitation.” He added that Labour’s stated plans to boost the capacity of the police “will result in higher arrest rates — but without the resources needed to deal with them speedily, this will just increase bottlenecks, delays and backlogs”.
Even City lawyers are warning Starmer and Mahmood of the need to invest significantly on the criminal side of the justice equation. “Full prisons, dilapidated courts and the publicly funded Bar and law firms are all in urgent need of resources that simply may not be made available in the immediate term,” said Alasdair Douglas, who is a former head of the City of London Law Society and now chairs the public affairs consultancy DRD.
He added, hopefully, that “having a former DPP [director of public prosecutions] as PM should make it easier to argue for an end to dysfunction in the justice system”.
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Away from the blood and guts of crime, lawyers have predicted that Labour’s stated plans to overhaul employment law will be “seismic”. Included are measures to simplify union recognition, beefing up the rights of trade unions to recruit and organise at workplaces and a new duty on employers to inform all employees of their right to join a union.
In advance of polling day Labour had also touted the introduction of electronic balloting to make the process of calling strikes easier and quicker.
Labour also wants to reform the practice of “fire and rehire”, which allows bosses to re-engage staff on less favourable terms. But as Katherine Flower, a partner at Burges Salmon, notes, reform might trigger unintended consequences: “If you limit an employer’s ability to dismiss and re-engage,” she says, “the danger is you leave them with potentially only one option: to dismiss.”
And then there is the highly emotive issue of “zero-hour contracts”. Labour has described the practice of not guaranteeing workers a set number of hours as “exploitative”. Yet, Flower says, “many workers as well as employers find this flexibility beneficial”, and therefore it is likely that the new government will legislate to provide those workers who want the security of guaranteed hours with the opportunity to move on to a contract, while “those who enjoy the flexibility offered by zero hours can leave matters as they are”.
Family law is another high-profile point on the justice agenda, as lawyers have increasingly complained that it too is beset by the effects of underinvestment.
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Jo Edwards, chair of the family justice group Resolution, reminded new ministers that Labour pledged in its manifesto to reform cohabitation law, with the lawyer saying: “For too long we have ignored the reality of how people are living their lives, and it is not enough to educate people about their lack of rights or just encourage them to marry or form a civil partnership. We need to protect people, and their children, from financial hardship by finally grappling with these issues and introducing a framework of rights and responsibilities for unmarried couples.”
Resolution also called for ministers to commit to state funding for initial family legal advice “to support people as they navigate separation and, where appropriate, signpost them away from court and alleviate the pressure on our courts”.
