Chris Grayling - the Gerald Ratner of Justice
From Brother Ivo:
The announcement that the Government now seeks to privatise the Courts has led Brother Ivo to begin wondering if it is time for the Conservative Party to change its name.
For centuries the party has been a place which gathered together those who were not opposed to change per se, but were nevertheless instinctively inclined to view iconoclasm with a high degree of scepticism. Persons with experience and a depth of understanding of our history and culture joined together to challenge the superficial and the merely fashionable.
Conservatives valued the Monarchy, the Established Church, Parliament, the unwritten Constitution and the Common Law. They were patriotic and respected the Armed Forces. They recognised that the whole country benefitted from a meritocracy that enabled leaders to rise to service from every part of society. Thus, Lord Roberts rose from private soldier to Commander of the Army; Tom Denning from draper's son to Master of the Rolls; Betty Boothroyd from chorus girl to Speaker of the House of Commons; and Margaret Thatcher, a shopkeeper's daughter, to the Premiership itself.
Conservatives learn from history because they still have regard for it and give time to its study and understanding: they appreciate lessons from the good and bad in classical civilisations, the Reformation, the Civil War, the Enlightenment, the French and American Revolutions, and the great reforms of Victorian England.
It was this valuing of the past which made the Conservative Party instinctively prefer pragmatism to short-term populism, and it traditionally had the sophistication to know that great institutions, like great wine, need time to mature. It distrusted the impulse of the 'progressive' to 'shake things up', knowing that it was precisely that - an intellectually adolescent expression of carelessness married to an emotional lack of self-esteem creating a personality desperate to make its mark.
You cannot be a British Conservative without appreciating balance.Thus the doctrine of the separation of powers between the Legislature, Administration and Executive was developed to reign in the potential of the powerful to become over-mighty. The traditional expression of sovereignty (pre-EU) was expressed in that subtle balanced phrase - 'The Queen in Parliament'.
So many of our current problems -and those to come - have their roots in our having turned our backs on our traditional understandings and values, encouraged by management gurus and the short-termism of focus-group-driven politics.
When David Cameron decided to alter legislatively the institution marriage, Brother Ivo began to suspect that here was a man who not only did not understand that institution, but that he did not value institutions themselves. The drive to privatise the Courts adds weight to this suspicion.
If we were to identify the characteristics of a nation state, we would note very early that at its core must be a judicial system. Protecting the realm and respecting and protecting the hard-won rights of the subject were the two most important roles of the monarch who embodied the identity of the people.
A legal system has three irreducible aspects: it is normative, institutional, and coercive.
A law will lay down rules of behaviour - thou shalt do this, thou shalt not do that - but by itself that does not make a law. The rules of a game or a club or a religious tenet will say as much. To become a law there must be additional features. There needs to be a mechanism to determine whether the law has been infringed, and to manage the process of determination. Thus a law needs to have a recognised institutional structure to differentiate it from mere vigilantism. Finally, a law must be coercive; unless the state can authoritatively enforce its laws, we do not have a law: we might have a rule, a morality or a convention, but it cannot be regarded as a law.
It may be a rule that a gentleman rises when a lady enters the room, but in the absence of a penalty or a structural mechanism to adjudicate, it is no law.
For society to be stable, confident and trusting in its government, the independence and integrity of that judicial system is paramount. One should be very, very cautious indeed before interfering with it and risking undermining that confidence.
When one understands the Law and its institutions, it becomes clear that these matters are closely bound up to our national sovereignty. When a nation state outsources to an outside body its responsibility to treat its subjects fairly, we have manifestations of impotence such as the case of Abu Qatada. Nobody expected such problems to arise or to become so intractable and expensive, yet those who tinkered with our national institutions and sovereignty for the sake of selling a few more Morris Minors to the Continent backed 'the wrong side of history, as our progressive friends like to grandiosely proclaim.
Brother Ivo is in two minds over this metaphor; unsure as to whether we have shackled ourselves to a lunatic or a corpse.
So we come on to the proposal to privatise the Courts.
It is worth reminding ourselves of a little history. Once justice was very local; the laws comparatively simple and comprehensible, and the vast majority of cases were determined by local Justices of the Peace (an ancient and honourable institution) and Judges. These people knew their communities: they knew the locality, the police and the villains.
Unfortunately, this was all changed by those whose self-confidence led them to believe they could 'rationalise' the system.
Paradoxically, the more sentences lightened, diversionary programmes were developed and early releases became the norm, the more we seemed to spend and the more determined we became to complicate our proceedures to preserve our criminals from encountering inconvenience and discomfort.
Courts, police stations and probation services were closed under the bureaucrat's grand design. The Legal Services Commission reduced (and continue to reduce) the number of solicitors firms permitted to undertake the work.
It was intended to save cost, yet it largely resulted in budget-shifting. Perhaps one department had fewer buildings to maintain - yet the police, probation officers, interpreters, lawyers, magistrates, defendants and witnesses all now had to travel further on a daily basis. Importantly, defendants were no longer judged by those from their own communities.
Functionality was not improved.
The recent changes to Legal Aid have already created the obscene chaos of housing clients facing eviction in London being told they had to instruct specialist lawyers in Swansea who were then desperately trying to find a local lawyer agent in London to resist an eviction but failing because nobody local had neither the expertise or availability because they no longer had the incentive to keep up with the law in that area.
Incidentally, when the Government bemoans the state of the modern High Street, has anyone considered the costs and effects upon such communities of the removal of local justice? Justice determined at an appropriate level was a value to towns with courthouses which the rationalising bureaucrat never thought of considering, yet any true Conservative would know that our towns were established where they were for reasons, amongst which were market, military, meeting and moot.
The more justice is removed from the community, the less respect it enjoys: remote justice is suspected and the coordination of it magnifies the costs exponentially. The Ministry of Justice budget amounts to £2bn per annum. It has decided to virtually eliminate civil Legal Aid for most ordinary people to save £350million per annum. One wonders if our rationalising bureaucrats have engaged in joined-up thinking to liaise with the nation's diversity coordinators about the £125 million pa costs of Court interpreters alone? Immigration and multiculturalism that places a low priority on a common language imposes massive unseen costs across the board.
To be fair to the Government in this important regard, they do at least now publish the figures, and if you would like to know where the £2bn Ministry of Justice budget is spent, it is readily available.
What do you think of £110,000 pa being paid for breathalysing staff? Or £36m paid to Capita for 'temporary interim managers'? In 2012, ATOS was paid £1,054,200,000 for 'IT services'. Cable & Wireless received £26million for video conferencing, presumably for many conversations that formally occurred by folk taking a short walk around town.
One cannot read these figures without concluding that the Government is already a long way down the road in its out-placing of legal services to the private sector. Surely true conservatives would be questioning whether we ought to be continuing in this direction. If companies like Capita and G4S are making their money by centralising functions, outsourcing processes and solving issues by corporate strategies, what prospect is there of anyone asking about the return of local justice to local communities?
In terms of fairness alone, if very vulnerable litigants need additional help to understand the dilemmas in which they find themselves, how might that be addressed by a corporate 'pile 'em high, sell 'em cheap' model of providing legal services? Access to justice is a PR slogan: it no longer reflects the reality in many cases.
Above all, where is the possibility of these companies being made leaner and fitter by competition? The natural Conservative catches the whiff if crony capitalism when large companies begin the seduction of Government. Do you think such companies buy exhibition stands at the party conferences that increasingly exclude grassroots members? Party volunteers may not get a voice at conferences or access to ministers - but we all know who does.
One of the dreadful consequences of embracing European traditions over our own has been the de facto loss of the Office of the Lord Chancellor. He held an anomalous position by being simultaneously part of the Executive, Administration and Legislature, yet we Anglo-Saxons did once put our trust in the character of our people, whether as Monarch or principal government official. They used to be lawyers of considerable stature, but that went when Jack Straw got his judicial tights in a twist and was confused as to whether he was a Lord Chancellor Arthur or Minister of Justice Martha - wig or no wig - all very confusing.
We now have in place former Social Democrat, Chris Grayling, who started work in television and then went into management consultancy. One presumes he knows the outsourcing mindset of Capita and G4S rather well.
Perhaps a few of our true remaining Conservatives might like to tell him that the great British Institutions evolved because fine people devoted themselves to public service. The Gerald Ratner approach to business may have its role in the market place, but it does not belong at the heart of the administration of Justice.
(Posted by Brother Ivo)