What next for the MoJ?

As the Ministry of Justice celebrates its tenth birthday the department continues to be clouded in controversy. A series of high-profile misjudgements by the present Lord Chancellor have cast grave doubts about the functioning of the MoJ and sparked rumours Liz Truss could be replaced if the Conservatives are returned to government next week. The problems at 102 Petty France run deep and many lawyers would argue there is no point to the ministry’s continued existence. But short of scrapping the MoJ, just how can the situation be resolved?

Lord Falconer QC, Labour’s former Lord Chancellor, told Solicitors Journal that replacing Truss is crucial to restoring the relationship between the judiciary and the executive, which, he said, is ‘the backbone to a sustainable functioning justice system’. This, he added, would allow the MoJ to press on with creating an effective court system; facilitate proper access to advice and representation; and create a functioning penal system that has post-conviction options to reduce reoffending.

Sir Henry Brooke also supports wholesale change. ‘There must be a change of Lord Chancellor,’ he told the journal. ‘There must also be a much greater understanding of the importance of justice and the extent to which it has been “broken”, and an overt willingness to stop the current trend and to put more resources back into the justice system as soon as it is judged economically safe to do so.’

The former Lord Justice of Appeal also expressed concerns over the blurred responsibilities of the roles of Lord Chancellor and secretary of state for justice. ‘I am increasingly sceptical whether the current constitutional set-up is capable of producing a fearless minister who is willing to risk his political future by championing the interests of justice as against the demands of short- or medium-term political expediency.’

Despite having reservations about the joint office, Sir Henry accepts that ‘it seems almost inevitable that the Lord Chancellor should nowadays be a member of the House of Commons’. Lord Falconer agrees, arguing that splitting responsibilities would prove a distraction from restoring minimum standards of justice in the short term and weaken the holder of the office in the long term.

Should Truss go, her successor would have to regain the judiciary’s trust and secure greater investment from the government – or at least prevent the ministry’s budget from being cut any further. The unprotected department has had its budget salami sliced annually since 2010 and in 2015/16 it was forced to request an extra £427m of allocated department expenditure as well as making unnecessary losses and payments totalling £96m. While Labour and the Liberal Democrats have pledged reforms, any further requests for funding are likely to fall on deaf ears if Theresa May returns to No. 10.

Next week’s election offers a watershed moment for the MoJ. The appointment of a strong, independent-minded Lord Chancellor with a legal background and who commands the respect of both the judiciary and the prime minister can save the ministry’s future. Who could fill that role? Well, May’s sidelining of Dominic Grieve QC leaves few obvious contenders in the Tory ranks, while Keir Starmer QC would certainly bring gravitas and credibility back to the role if Jeremy Corbyn gets the keys to Downing Street.

Whoever wins, the MoJ must become a motor within the government for obtaining proper levels of expenditure on the justice system and initiate an immediate review of LASPO to kick start a wholesale review of legal aid. Anything less will cast more doubt about whether the department is fit for purpose, if it ever had a purpose to begin with.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress