‘Your lawyers would like a word! Andy Burnham’s legal in-tray’

Andy Burnham could be forgiven for thinking that his inbox is bulging enough without hearing from his lawyers. But part of my job as Chair of the Society of Labour Lawyers is to draw the attention of the Labour leadership to issues around the operation of the legal system that need addressing. I make no apologies for that, because those problems don’t just affect lawyers: ultimately, a functioning legal system is the foundation of both our political and economic systems. If it is not working properly, then laws passed by Parliament become a dead letter; the state is unable to help citizens when they need that help to enforce their rights against the powerful; and business has no solid basis on which to conclude deals and plan for the future.

To say that the Starmer government inherited a legal system in crisis is putting it mildly. What it inherited was a system ridden with enormous backlogs, with trials for serious offences being scheduled for years in the future, and equally lengthy delays in the civil justice system for those wanting to enforce their contractual, family, or other legal rights. It also inherited a system of legal advice deserts, where in large parts of the country there was no access at all to legal help in basic areas of the law, such as criminal, family or housing law, and where that lack of legal help led to further public spending down the line, either in the form of longer hearings as judges tried to work out what was going on or in terms of calls for state help because people were unable to enforce their rights against landlords, former employers, or former partners. 

Further, at a less tangible but very real level, it inherited a legal system that had been steadily undermined by government conduct: attacks on the rule of law itself. Lawyers risk sounding both pompous and self-interested when they talk about the “rule of law”: but what it cashes out to at a very real level is that government – and politicians more widely – accept that the courts have a critical role to play in upholding our democracy by making sure that the rules laid down by Parliament are respected and that government honours the various promises that it makes about how it will exercise the powers that it is given. 

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When – as happened too often under the recent Conservative governments – judges are attacked by government spokespeople and outriders when they hold ministers to those rules and promises, those attacks do not just undermine the rule of law but democracy itself. Equally the Conservative governments’ contempt for international law – which manifested most vividly in their attempt to legislate in admitted breach of the Northern Ireland Protocol with the EU (that they themselves had negotiated and agreed) – further undermined the rule of law.

The record of the Starmer government in dealing with those challenges can fairly be summarised as “much done, much still to do”. 

On the legal system, much has been done. On backlogs, there has been very substantial funding of the criminal courts to increase sittings and improve technology. However, the Starmer government’s legislative proposals to improve and speed up the functioning of the criminal courts have centred on a proposal to limit trial by jury for very many serious offences to cases where conviction is likely to result in a prison sentence of over three years. That proposal is opposed by the legal professional bodies and by many Labour MPs, both as a matter of principle (with concerns that the proposal cuts across Labour’s position as the defender of human rights against right-wing attack) and on the basis of widespread scepticism that the proposal will have much impact on the time taken to deal with those cases. An item near the top of Andy Burnham’s in-tray will be whether to drop that proposal. 

In terms of access to justice, there has been major investment in some areas of legal aid, but proposals for more radical reform, such as the Society of Labour Lawyers’ proposals to move towards a National Legal Service, have not been taken forward. Moreover, although the government has decided, in principle, to sort out a major problem affecting the funding of collective proceedings (which enable large groups of consumers to take legal action for damages against cartelists and monopolies, often in the tech sector), it is not clear when that will be done; and a decision as to whether to expand the types of proceedings where such actions can be brought has been put back until after a Law Commission report. 

Both of those problems – backlogs and access to justice – are going to be affected by AI. At one level, AI helps access to justice, as it makes it easier for ordinary people to draft the documents that they need to start proceedings and present their case. But that will have – and is already having – a major impact on the work of courts and tribunals as more cases are filed with more documents to be read (and, as every lawyer knows, AI-generated documents are capable of gross legal and factual errors and have to be carefully read). Labour’s reforms to employment law and to renters’ rights are major achievements – but those new rights will count for little if the employment tribunals and county courts are so overwhelmed with AI-assisted litigation that those rights cannot be enforced. 

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On the rule of law, the Starmer government has also done much. There has been a dramatic improvement in the way in which ministers and government spokespeople talk about the courts. The Attorney General, Lord Hermer, made it clear from the start that he expected government lawyers to give frank advice when they believed that a proposal would be, or would be likely to be, unlawful. And the government has correctly emphasised the importance of complying with the UK’s international obligation. This is essential both to the maintenance, as far as possible, of international cooperation based (as it has to be) on agreed rules, and to the UK’s trustworthiness as a partner in trade and other deals. As even the Trump administration is learning, if you cheerfully breach the deals you sign, it becomes much harder to get other deals. 

But challenges remain. In particular – whether it likes it or not – Labour will be fighting the next election as the supporter of membership of the European Convention of Human Rights, and other agreements linked to that membership such as our agreements with the EU, against parties that want to tear that membership and those agreements up. And in Reform, it faces an opponent that is openly hostile to the very idea that courts should ensure the government sticks to the rules and stays within its powers or to the very idea of compliance with basic international obligations. 

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On the ECHR, Labour will have to explain why the ECHR is a critical underpinning of the basic rights of all citizens, and why leaving it would have a catastrophic impact on cooperation with our neighbours in areas such as security, immigration, and crime. On the role of the courts, it will have to explain why that role is fundamental to our remaining a democracy. And on international cooperation, it will have to explain why maintaining international law is essential to the UK national interest. 

It won’t do to leave those explanations to the Attorney General, however eloquent he or she is (and Lord Hermer has been brilliantly eloquent). Those explanations have to come from the top. Here, Andy Burnham is in a great position to explain to the British people exactly what is at stake. He has both his own experience of campaigning on issues such as Hillsborough (where it was critical to that campaign’s success that victims’ families were able to rely on the duty on the state imposed by Article 2 of the ECHR to investigate deaths that it has caused) and his own natural persuasiveness – a persuasiveness perhaps helped, I say somewhat ruefully, by the fact that, unlike his predecessor, he cannot be portrayed as conditioned by a professional legal background. 

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