Summary: The British legal system is in a state of crisis. Legal aid availability has been reduced dramatically. Large numbers of ordinary people have essentially no access to justice in a way unthinkable 50 years ago. At the same time the courts are under increasing pressure and largely fail to charge plaintiffs for hearing cases involving often substantial sums of money. Often the fines used for a wide range of offences are small and cause little inconvenience to the offender. Although there is some flexibility in the way that fines may be set they are generally extremely low and not really much of a deterrent particularly as the likelihood of being caught is so low. This piece makes some suggestions about how the system can be updated and improved to make access to the British justice system much fairer while getting those who can pay to do so. At present those who cannot pay are denied justice they might decently expect. That is something which is fundamentally unfair and unjust.

The Bach commission, set up by Jeremy Corbyn and the Labour Party leadership, produced an important interim report on the standards of access to justice in the UK. The background to the report and its conclusions were covered by Owen Bowcott in the Guardian (see: https://www.theguardian.com/law/2016/nov/25/labour-to-push-for-fairer-access-to-the-justice-system-minimum-standards).

Some newspaper reports have claimed that the UK has the most expensive legal aid system in Europe. This is simply untrue. The amount we spend in the UK is slightly lower than is spent in Germany. Indeed, the legal aid cuts of 2012 have made UK costs even lower.

The interim report concludes that recent cuts have had a dramatic effect on the availability of justice. Those in desperate need of justice find that high court fees make employment tribunals and courts almost inaccessible. The report outlines the core problems with the justice system today. These are loss of legal aid for housing, welfare, debt, immigration, medical negligence and family law cases. The failure of the exceptional case funding scheme, lack of public legal education, mass closures of legal advice centres (60% lost), higher minimum court fees for some types of case, excessive bureaucracy in the Legal Aid Agency and antiquated technology.

Since 2010 the annual legal aid budget has fallen from £2.1 billion to £1.6 billion. The Ministry of Justice is in a state of denial saying “We have a world leading legal system”. We did once, we certainly don’t now. What can be done about it? Obviously, lack of money is a problem in a world where austerity is all that actually matters. Even if we accept that, a lot can be done to improve the income generated by the court system.

Around three quarters of the 900,000 offenders convicted receive a fine. Most of these fines come from Magistrates Courts that have to work with the 400+ page sentencing guidelines. The great majority of fines are categorised into different bands with the fine related to weekly offender income. The three main bands cover 50%, 100% and 150% of an offenders relevant weekly income. Multiple offences and repeat offences can lead to higher fines.

The average spend of a UK household is about £530 per week or around £27,500 per year. These fine bands are typically significantly less than an individual spends on alcohol and tobacco in the year. There must be a strong case for increasing these fines particularly remembering that some of these offences covered by these fines are rather serious. They include driving with excess alcohol (at three times the legal alcohol limit the fine is only 150% of the weekly income) and other forms of dangerous driving.

Driving offences also have points that can lead to disqualification. For most people, however, that only matters with repeat offences and it is the fines that are the principal punishment. Magistrates do have now the authority to impose higher fines but the latest statistics suggest this is not done as often as it might. Too many offences are dealt with relatively light fines that are not much of a deterrent given the relatively low probability of an individual ever been caught. Increasing the level of fines significantly could lead to a marked increase in income from this source.

It is very important to make the courts accessible to those who can least afford it. Court fees are increasingly being used but they are invariably flat rate fees of relatively small amounts. A divorce case involving multi-million pound settlements come with court fees of £550. Such a fee may be appropriate in, for example, a child custody case. However the increasing number of cases from overseas are putting an significant demand on our court system and there is a strong case for making the court fees relate to the sums of money involved.

The same is true for commercial cases although there here there is no fee at all even if the case involves vast sums of money and engages extraordinarily expensive counsel. Again, setting up court fees in a proportionate way will produce no disadvantage to the poor but lead to a substantial increase in income for the Ministry of Justice. Setting fees proportionate to the sums of money involved in the case makes every possible sense. Given that there are approximately 450,000 civil and family cases heard each year in England and Wales this is something that needs to be taken seriously.

The legal system in the UK is under considerable stress. This leads to great delays in making judgements. If an action involving substantial sums of money is not settled by mediation of some sort then the threat of significant court fees will be further encouragement to settle out of court.

There are further inequalities in access to justice. Large organisations such as companies and government departments can bring substantial firepower to their legal representation in court. Legal aid is intended to compensate to some degree, but the threat of very substantial costs awards can further discourage legal action by individuals or small companies and organisations. Capping the award of costs to equal the costs of the plaintiff would be one way of achieving an “equality of arms” (so that both sides are represented comparably in a case).

The income derived from these increased charges would allow most of the legal aid cuts to be restored.

There is one other area of concern with the present justice system and that is the much wider use made in the UK of custodial sentences. The rate of imprisonment in the UK is nearly 3 times that of several other Western European countries. The agenda of many popular newspapers and the right-wing of the Tory party emphasises revenge, punishment and “keeping the public safe” . There is little concern about other aspects such as prisoner education and rehabilitation to minimise subsequent reoffending. The progressive creep in the lengths of prison sentences has led to even greater overcrowding than before. It is important to look again at the sentencing guidelines. Suggestions for how this might be done within the existing sentencing guidelines can be found at: http://outsidethebubble.net/2017/03/14/rethinking-the-british-prison-system-reducing-the-population/, but thinking much more creatively about the sentencing guidelines could be very productive as well.

Summary: The UK prison system is in crisis with the highest population ever and cuts in the prison service leading to high levels of violence and self-harm. Drug use is virtually uncontrolled in many prisons and the imprisonment rate in the UK is the highest of any Western European country. Almost all children under the age of 18 are kept on remand even though three quarters are not ultimately given a custodial sentence. One solution that would reduce the prison population dramatically would be to use much more widely the new high-technology tags that allow precision tracking of the location of an individual. Releasing non-violent and nonsexual offenders could be tagged after one third of their sentence. Initially they would have relatively restrictive constraints on their movements. This approach would make it much more likely that many could be reintegrated into the community and stopped from reoffending. Using such tags for individuals that might otherwise be kept in remand would also reduce the prison population markedly.

The UK has a very large prison population, currently nearly 150 per 100,000 of the population giving a total of around 85,000. Cuts to the prison service (staff numbers reduced by 30% since March 2010) have led to an explosion in violence and the rates of self-harm. Drug use is endemic and a number of prisons are simply out of control. The numbers sentenced to 10 years and more have increased by over 200% in 10 years. 36% of prisoners have a physical or mental disability.

Comparison with many European countries shows that prison sentences in the UK are particularly harsh. The number of prisoners in jails here is almost three times the rate in the Netherlands and several other Western European countries. For many years the running on this has been led by the right, emphasising punishment and not rehabilitation. The conditions in prison make any attempt at training that might lead to successful rehabilitation virtually impossible. This in turn leads to very high rates of reoffending, about 45% for adult offenders and particularly high for shorter sentences. A great deal of the reoffending is related to drug and alcohol misuse.

The prison population is significantly larger than it needs to be because of people kept on remand in custody awaiting trial. At any one time the remand population is around 11,000. In one year approximately 50,000 people are remanded into custody, 11,000 were subsequently acquitted and about 14,000 were given non-custodial sentences. On average a remand prisoner spends nine weeks in custody. Amongst under-18-year-olds three quarters are locked up on remand are either acquitted or given a community service. Imprisonment of children can be particularly damaging. Bail applications for under-18-year-olds are almost always refused despite the fact that only one quarter are actually given a custodial sentence. The remand population could be reduced if those likely to face a non-custodial sentence were left in the community and also if the time it takes to bring a remand prisoner to court was reduced.

At present offenders sentenced to less than one year in prison are incarcerated for half that time and then released for the remainder of their sentence on community service with no licence conditions and no supervision. Between one and two years sentence, again only half is served and the remainder given a mixture of post sentence supervision and licence. Pressure on the probation service (also widely agreed to be in a state of crisis) means that many of these relatively short-term prisoners are not followed up on at all seriously unless they reoffend. Prisoners serving sentences between three months and four years are usually granted early release between two weeks and 135 days earlier than their normal release date provided they wear a “tag”. A tag monitor installed in the offender’s home alerts the monitoring centre if the prisoner leaves home during curfew hours. These tags are really quite basic. Any breach of the curfew can result on the offender being returned to court or even sent back into custody. Outside curfew hours released offenders can go where they please.

Offenders as well as those on remand are kept in prison and placed on curfew in order to restrict their liberty. Modern technology allows the location of an individual at any time to be tracked with very great accuracy and stored within a simple device little bigger than a wristwatch. The technology is essentially what everyone has in their smartphone, relying on GPS for precision location detection. The movements of an individual may subsequently be downloaded and checked automatically to ensure that the individual stayed within areas already approved. Contracts to create such intelligent tags have already been placed and are beginning to come into use. These contracts are with four companies to a total cost of nearly £230 million. That does seem remarkably high particularly as the anticipated savings are in the region of £20 million compared with the existing low-tech tag regime.

One approach to reducing prison numbers would be to use these modern tagging technologies much more widely than currently envisaged. An early release offender or an individual on remand could be subject to very clear constraints on where he or she may go and at what times. The individual needs to be supported in maintaining their life, family contacts, capacity for taking on a job or continuing their education while being constrained to a greater or lesser degree as to where they might go. Increasing the numbers tagged in this markedly more restrictive way would make it practical for many more to be tagged.

For example, an individual may be initially constrained to stay at home and only go to specific supermarkets or places of work in specific time windows and then return home. The movements of the individual would be downloaded regularly while the individual is at home with the monitoring unit passing data to the central management organisation. Provided the movements of the individual are consistent with the terms of release those terms may be updated and relaxed somewhat after a period. An individual could be permitted to attend training courses or rehabilitation programs and the tag would give evidence that those were indeed properly taken. Underage children would be able to continue with their school education.

A future development could further increase the utility of these intelligent, high-technology tax. Modern transdermal alcohol sensors allow excessive use of alcohol to be detected and measured. Similar technologies allow the detection of drug consumption. In principal these new technologies could be used to improve the capacity of the intelligent tags to monitor the drug abuse and alcohol abuse that is often a precursor to reoffending.

The prison population could be significantly reduced if the 60% of all prisoners who were sentenced for non-violent crimes or for non-sexual crimes were released after one third of their sentence and tagged with one of these modern tags for the second third of their sentence. Those that consistently violate the terms of their release could be brought back into custody. The effect of this would be to reduce the prison population by about 16,000. Offenders convicted of violence against the person or sexual offences could be released under similar conditions provided it was clear that they no longer posed a threat to the community. This would likely further reduce the prison population by perhaps 4000. Taking the same approach to the great majority of remand prisoners could reduce the prison population by another 5000 perhaps. The overall effect could be to reduce our present prison population from 85,000 to around 60,000.

Such a reduction would have a major effect on the overcrowding in UK prisons. It would allow much more serious work to be undertaken to re-educate and rehabilitate prisoners prior to their release. The tags and the tag monitoring systems would not be particularly expensive and much of the monitoring can be done automatically without human involvement until there is a violation of the tagging conditions.

Summary: The prospects for a rapid breakdown in the Brexit negotiations are worrying. Well organised groups that want them to fail and fail quickly are in the ascendancy. Downing Street is struggling to contain internal squabbles and the inevitable difficulty of the negotiations is likely to accelerate that breakdown. The conditions will be perfect for a far right takeover in the absence of any serious coordination amongst Remainers, and a total absence of an opposition party.

The triggering of Article 50 will start Brexit negotiations with our European partners. Most commentators, both Leave and Remain, think that reaching an agreement will be very hard particularly within the official two-year period. Despite Theresa May wanting to keep everything under her hat, we know that European negotiations leak information brilliantly so we will get a pretty good idea how things are going quickly. We can expect reaction within the UK to those rumours immediately. We can predict that two major stumbling blocks will emerge quickly. These are the size of the payment to the EU on departure, and the linkage of access to the single market with a degree of freedom of movement for EU citizens.

A lot of people don’t want these negotiations to work at all and want the UK simply to walk away from the EU. What must be recognised and taken very seriously is the existence of a well- coordinated group that calls itself the European Research Group, although Extreme Right Group would be a much better description of the ERG. A worrying piece in The Times in mid-February about the ERG may be found at: http://tinyurl.com/h2jz64d.

That piece describes the activities of a group of nearly 60 MPs working hard to ensure that the only Brexit is a full, hard Brexit with the UK leaving the EU without any agreement. The group is understood to be led by Steve Baker, MP for High Wycombe although his rather out of date webpage makes no mention of this activity. The ERG do not want to pay anything to the EU on departure and are adamantly opposed to any single market arrangement that might allow a degree of freedom of movement for EU nationals.  The group appears to be highly disciplined and highly coordinated,  focusing their efforts on agreed targets in a carefully managed way. They have already been able to organise effective attacks on a number of important individuals apparently opposing Brexit. The Remain side at present has virtually no comparable organisation or coordination and therefore the attacks from the ERG go virtually unopposed.

Many of the members of the ERG are indeed on the hard right and were previously thought of as the troublemakers/headbangers that consistently made the life of Conservative Prime Ministers difficult. Downing Street is already in a state of some turmoil at least in part because of the OmNICshambles budget, and the extent to which the Treasury is effectively blocking many of Theresa May’s policies that would ease pressure on the poor and just about managing groups. Austerity continues to roll along undiminished.

The effectiveness of the ERG gives them a disproportionate power, forcing Theresa May to accommodate their views and approaches to Brexit to a degree she would not perhaps otherwise wish.

Once Brexit negotiations start, it will become clear rather quickly that there are two major stumbling blocks almost impossible to circumvent. These are firstly the size of the the departure payment (the ERG want us to walk away and pay nothing, something almost impossible for the EU to agree) and secondly that access to the single market will require a substantial degree of freedom of travel for EU citizens, something that again the ERG are dead against.

These sticking points will become clear quickly and that is when we should expect the ERG to push for the UK to scrub the negotiations and simply leave the EU without any agreement. Theresa May in her position of being weaker in Westminster because of internal squabbles in Downing Street may find her position as Prime Minister threatened. The ERG would begin to pressure her to accept a hard Brexit or resign as PM and quite likely trigger a general election. From the ERG’s point of view, the sooner this is done the better. The longer the negotiations drag on the more likely the negative effect on the economy of the continuing uncertainties will become obvious. If that is allowed to go on popular opinion may well swing against Brexit, particularly if it is to be a hard Brexit. The ERG cannot afford to risk delaying till that happens.

At that point the takeover of the UK by the extreme right in Parliament would be complete. Labour, of course, have no part in this, apparently little interest in it and certainly would not be in a position to fight a general election with any plausible chance of success. Even brilliantly organised parties cannot overturn a position of being 18 or 19 points down on the government in a relatively short time.

Summary: It costs much more to go to university in the UK than in any other OECD country. Students leave university with enormous debts that largely eliminate their chances of buying a house without parental help. The Student Loan Company has amassed over £90 billion of debt 70% of which will never be repaid. Far too many students take degrees that the country has little need of while other subjects are very short of candidates. Lengthy degree courses are necessary in many science subjects but for many a shorter more general degree as was common many years ago should be looked at seriously. Vocational tertiary education must be developed as the University Technical Colleges are proving much less successful than hoped.

There is a surprising amount of complacency surrounding the British university system. In England fees are now very high indeed at £9000 per annum, by far the highest of any OECD country (Note 1). Loans are available but many leaving with a debt well in excess of £50,000 will never be able to repay them particularly at the predatory interest rate being charged. Buying a house is out of reach for most young people today and having a substantial student loan makes that even harder (Note 2). Maintenance grants are very hard to come by and only available to those with very low parental income (Note 3).

There have been big changes in the structure and balance of tertiary education over the years. The definition of a University was simplified and Tony Blair, when Prime Minister targeted a participation rate of 50% by young people. Many former technical colleges were repackaged as universities and large numbers of vocational courses were eliminated. In the UK technical qualifications have never been greatly valued by the public. In Germany and other European countries they are of much higher status and generally highly sought after.

The consequence is that we have far too many students taking degrees which will be broadly irrelevant to their subsequent employment. The universities are in competition with one another, striving to increase student intake and therefore fee revenue. There is little control of the numbers of students attending different courses and virtually nothing done to encourage students to study subjects for which there is a significant shortage of skills within the UK.

Many years ago in Scotland, universities awarded Ordinary degrees after three years and Honours degrees after four. Scottish students have a broader secondary education and achieve Higher qualifications in many more subjects than English students who have followed an A-level course. The more able English students going to Scottish universities would be admitted directly into second year and could graduate after two years with an Ordinary degree, or three years if they wish to study the subject to a higher level. Today, the majority of full-time courses are three years with most language courses and many science and engineering courses leading to a Master’s degree after four years. Do we need them all to be so long?

The statistics of who does what after graduation are not easy to interpret but what is clear is that for subjects such as history, philosophy, creative arts and design, barely half of those graduating work and jobs dependent on their degree subject. Many jobs today require applicants to have a university degree even in a subject of at best peripheral relevance to the job. For many having a good 2-year degree would be just as satisfactory as having a longer one. In other subjects that normally lead to further training such as teacher training, it is highly likely that a 2-year degree would be a satisfactory preparation for teacher training. Shorter degrees would allow graduates to leave with greatly reduced student loan levels.

There is also the important matter of the university degrees that students take. Too often schools give relatively poor guidance to students, encouraging them to study whatever they fancy. The consequence is that the UK produces large numbers of graduates in subjects which are already relatively oversupplied in graduates. Relatively few graduates in subjects such as English, history and languages end up employed in those disciplines. At the same time the UK finds itself very short of graduates in science and technology, engineering and mathematics. At present almost nothing is done by government or by educational establishments to actively encourage a better balance in the way we educate our students.

This could be done simply by adjusting the fee levels so that courses affected by a shortage of applicants offered lower fee levels while those oversubscribed required higher fees. The government could set target levels for student numbers in different areas leaving universities to adjust fees to provide the desired outcome. An additional benefit of reducing the length of a significant number of university degrees would be to inject many more qualified individuals into the job market where there is a substantial shortage at present.

Another major area of concern is in technical education. Many technical colleges were closed or re-engineered as new Universities following Tony Blair’s aspiration to achieve 50% in tertiary education. This produced a corresponding loss on the availability of technical and vocational courses. University Technical Colleges have been established in recent years to provide training in specific subjects for students from the ages of 14-19. Unfortunately these are substantially under subscribed and it may well be that the hope to attract students away from mainstream secondary education, at an age where students are still very unsure about their future direction is just too early. Secondary schools that risk losing students make it difficult for the UTC’s to succeed. The UTC’s results at GCSE and A-level are significantly poorer than the national average state schools. The announcement that the government intends to improve the funding of further education colleges which have already suffered a 12% reduction between 2010 and 2020 is to be welcomed. One of the reasons that we need to bring in so many qualified workers from overseas is because of the squeeze on further education that started under Tony Blair and has continued enthusiastically under the Conservatives. Government needs to work with professional societies to design better recognised and better valued courses in many of the technical areas that are much more popular in Germany, for example that they are in the UK.

Sadly there is one area in which things are going completely in the wrong direction. Nationally there are about 24,000 nursing vacancies. The training of nurses in the UK became more difficult when the number of training places was reduced. It used to be that fees and living expenses for trainee nurses were funded by the taxpayer. That has ceased and students wishing to train as nurses are now faced with the same levels of fees as university students. As a consequence, the number of applicants to train as a nurse has dropped by over 23%. In addition, the effects of Brexit on EU confidence in the UK has meant that the number of European nurses applying to register in the UK has dropped by over 90%. There is more at: http://outsidethebubble.net/2017/02/02/government-driving-up-non-eu-immigration-intentionally/. There is no doubt that the shortage of nurses in the UK is going to become very much more acute in the future.

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Note 1: The coalition government increased substantially student fees. In England the fees are the highest of any OECD country followed by the US and Japan. These now stand at £9000 per annum in England. In addition, living expenses are estimated to be in the region of £12,000 per annum (£15,000 in London). In Scotland tuition fees were abolished in 1999.

Note 2: A student leaving with debts will have their debt repayments taken into account should they want to get a mortgage to buy a house. With the rapid increases in house prices, recent graduates now have very little prospect of ever buying their own home unless they have an exceptionally well paid job. It is increasingly the case that young people are able to get onto the housing ladder only if their parents can help them. The bottom line is for most young people and particularly those from less wealthy background, get a degree and forget about owning your own home. You are going to be renting accommodation for the rest of your life.

Note 3: Student loans are repaid once the student is in employment at 9% over a £21,000 salary threshold. Around 70% of students are expected never to finish repaying their loans. If they have not cleared it after 30 years then the Student Loan Company writes that debt off. The outstanding student loan debt now stands at around an astonishing £90 billion.