Michael Gove: A Trojan Horse?

Gawd bless that nice Mr Gove! Why, in only a few months he has already been fulsomely complimentary about how smashing barristers are, has made tremendously liberal squeaks about rehabilitating prisoners, and successfully squared up to Foreign Secretary Philip Hammond on how it’s a rum idea to teach the Saudis how to dismember their own prisoners. And now, for his greatest trick – his Statue of Liberty moment – he will imminently make the criminal courts charge disappear!

I use the word ‘trick’ advisedly because if we accept newspaper reports, there’s a rather pernicious small print, rendering the spectacle less David Copperfield and more Penn Jillette firing a nail gun into Teller’s crotch, only with real nails.

The trade-off for Gove mercifully scrapping the criminal courts charge – the mandatory fixed financial penalty of up to £1,200 imposed upon every convicted person regardless of their ability to pay – is a Robin Hood tax on the big swinging City Dicks, Toms, and Harrys raking in oodles from commercial law.

A 1 per cent levy on the turnover of the top 100 corporate firms, raising an estimated £190m, is what Gove will be forced to implement to plug the financial hole of between £65m and £90m caused by abolishing the charge.

So, a poll tax on the poorest is being replaced with a levy on the City law firms that gross in excess of £19bn. What’s not to like about that? Pretty much everything.

Let’s dispel one myth – Gove does not need to find money to bin the charge. The Ministry of Justice’s laughable impact assessment optimistically opines that by 2017/18 the charge might generate £85m per year.

The assumptions lying behind this figure are legion and unsustainable: that the number of defendants appearing before the courts will remain static (it has been falling year on year); that the collection success rate will be broadly similar to that for fines (fines are means tested; axiomatically there will be far more defaulters on a penalty imposed irrespective of means); and that it will cost nothing to enforce (it costs £20m per year to enforce fines, and it is a safe assumption that enforcing the charge will cost at least the same again).

Indeed, when the impact assessment factors in a modest estimation of enforcement costs, it concedes that the charge could cost the taxpayer £20m this year and £15m for 2015/16.

The charge could be scrapped immediately. The Treasury knows it is a non-starter. It was never designed to generate income – it was a blood sacrifice on the altar of the putative leadership campaign that Chris Grayling’s ego convinced him was his destiny.

No, the reason Gove is happy to abandon the charge is that it provides cover for him to do something he trailed in his inaugural address to the Legatum Institute; namely, to remove the criminal justice system from the ambit of public funding altogether.

In Gove’s vision, criminal justice should be financed not by public expenditure, but by lawyers, whether through directed taxation on City firms or through the extension of pro bono work. And the message this sends is deeply troubling.

It reinforces the notion that a functioning and fair justice system is a luxury not worthy of funding through general taxation. If we must have it, we’ll have a whip-round among the rich kids and see if we can scrape enough together to keep it going. Perhaps ask them to do a bit for free. Have a raffle and get an unlucky competition law associate to knock out a section 18 for a couple of days to satisfy Clifford Chance’s monthly pro bono quota.

And once something is established as a luxury, we can afford to lose it. Or at least stop caring how well it is administered.

The British criminal justice system should be the standard to which other jurisdictions aspire. The public should be as proud of our courts as they are of our hospitals. It should be explained, to counteract decades of false reporting and mendacious Grayling-sponsored spinning, that spending public money on ensuring despicable people have a fair trial is as worthy as spending public money on ensuring the same people have access to medical treatment. That ‘legal aid’ is no more a dirty phrase than ‘free healthcare’ is a luxury hogged by the undesirable underclasses. That a fair criminal justice system is not the zenith but the baseline of a civilised democracy.

Gove is a very clever man. He is also a proven ideologue. No doubt he sincerely recognises the justice of revoking the criminal courts charge, and this, when it comes to pass, is to be welcomed. But if it does transpire that this is a Trojan Horse ushering a remodeled narrative of criminal justice as an added bonus to the legal system – as something that need not concern most of us in our content, suburban lives – we should be very afraid indeed. SJ

@BarristerSecret is, unsurprisingly, an alias for a practising barrister

You can visit his blog at www.thesecretbarrister.com

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