The strains on civil justice and its consequences

– Tom Clark, journalist, and Rob Street, Director of Justice, Nuffield Foundation

Very slowly, a realisation is dawning on shrewder observers of – and practitioners within – the social policy scene. Namely, that the law is too important to be left exclusively to the lawyers. Parliament can pass statutes and ministers can draft regulations and even allocate public funds, but the translation of intention into outcome often plays out – or doesn’t – through the justice system.

Legal rulings have always been the way in which public policy ultimately bites on individuals in some contexts – including crime, contract enforcement and property disputes. But law and justice loom far larger than they used to. The number and range of criminal offences has multiplied. Contracts have got ever-more complex. The courts have steadily got more deeply involved in traditionally private realms, such as the family. Meanwhile, the growth of judicial review and public law over 60-odd years, and then of human rights claims over nearly 30, has ramped up the potential to hold the state to account through the law.

But the rising importance of the justice system has not resulted in it being better understood. It still often seems like an incomprehensible, alien world to many of the people it notionally exists to serve. Outsiders have mostly continued to consider the courts as something of a black box. Latterly, however, at the same time that our tribunals, courts and wider justice system have become so central, they have become less able to function in practice as they are meant to in theory. The implications of this mismatch are, as this collection of essays attests, now seeping out in all sorts of ways beyond the legal world. Unfortunately, politics has yet to really face up to this.

Justice budgets were firmly in the ‘unprotected’ category through the long austerity years: indeed, the big squeeze began before 2010, and has continued since. Budgets have risen in the last few years, but not sufficiently to undo earlier cuts.[ref]Domínguez, M, & Zaranko, B. 2025. Justice spending in England and Wales. Institute for Fiscal Studies. Available from: https://ifs.org.uk/publications/justice-spending-england-and-wales.[/ref] The arrival of Sir Keir Starmer, a senior lawyer, in Downing Street has not fundamentally altered the pressures. Legal advice is massively unfunded, and sometimes hard to find at all. The courts estate is crumbling, and the operation of justice creaking, dogged by delays in the context of both crime (with some publicity) and civil litigation (with next to none).[ref]Some of the worrying numbers are quoted and discussed throughout this collection, for example in Diane Coyle’s essay.  For direct access to the official statistics on delays between the filing of cases hearings in civil courts, see Civil justice statistics quarterly, which is updated regularly at: https://www.gov.uk/government/collections/civil-justice-statistics-quarterly. Equivalent criminal justice statistics are collated at: https://www.gov.uk/government/collections/criminal-court-statistics, and for the Tribunal service at: https://www.gov.uk/government/collections/tribunals-statistics.[/ref]

Against this backdrop, this collection convenes a broad conversation about what a modern society requires of a justice system – and how that compares to the justice system we’ve actually got. We do not pretend to offer an exhaustive examination of all the issues it faces. We mostly steer away from criminal justice, not because it isn’t important, but precisely because it is already the most prominent part of the system. Crown Court delays, the consequential degradation of evidence, and the collapsing of prosecutions have started to get some serious media coverage. Politicians understand that such failings cannot be ignored and are on the hunt for radical fixes. The government commissioned a retired senior judge, Sir Brian Leveson, to review the criminal courts. His July 2025 report recommended a new type of court that would, contentiously, avoid the need for juries in trying many offences of middling gravity. But the same political urgency has not yet been mustered in the civil context, an imbalance we seek to redress.

Nor do we dwell much here on the family courts. They are a critical and often-neglected part of the system that makes momentous, life-changing decisions for young lives, but are something that Nuffield’s own Family Justice Observatory now shines a bright light on. Instead, our main concern is the web of courts and specialist tribunals that deal with myriad other aspects of life, and indeed on the whole ecology of advice and support that can sometimes resolve problems less formally, and guide people through litigation if and when it is ultimately required. While some of the issues that the collection discusses are theoretical, and not restricted by territory, when our essays get into specifics and quote statistics, except where otherwise stated, these refer to England and Wales.

Very deliberately, we have sought out a wide range of perspectives. We have naturally included some lawyers, who know how the system currently does and doesn’t work, but also many distinguished non-lawyers, whose day-to-day focus is on other social problems and whose interest in the law is about how far it can contribute to fixing these. Deliberately, too, we have mixed voices enthusiastic about pursuing broad social reforms through the justice system with sceptics, who think that – once we’ve got the basics working – we would do better to confront deep political problems directly, rather than dress them up in legal arguments.

So this is a varied collection of contributions designed to kick off a conversation (as well as inform Nuffield’s own Public right to justice project), not a series of premises marshalled towards a common conclusion or a particular set of reforms. Nonetheless, a couple of strong threads connect most of the pieces. The rest of this introduction canters through the contributions, then draws out those common threads, together with some important contrasts.

To ground the discussion firmly in the realities of the justice system of England and Wales, we start out in the county court with David Allen Green, a practising solicitor as well as a widely read legal commentator. He paints a picture of “chronic understaffing”, endemic delays, “almost non-existent IT”, and an unhappy mix of a stubbornly physical paper-chase with broken communications and unanswered correspondence. He doesn’t stop at description, however, but also delves into the roots of the malaise – want of political leadership, as well as lack of funding – and then identifies the sweeping, yet little-understood, consequences.

When people no longer believe the courts are there for them as either sword or shield, an immediate toll is taken on public trust in the law and the rights it is supposed to enshrine. And that isn’t the end of the trust problem. Doubts about whether the writ of regulators, the by-laws of councils or even the statutes of Parliament can be made effective cause knock-on damage to the standing of all these public institutions and their ability to get things done. Moreover, if – as Green suggests – consumers and smaller businesses have reached a pass where writing-off even sizeable debts can be more rational than embarking on a costly, slow and unreliable journey through the courts, then it’s not hard to imagine profound implications for economic life.

The Cambridge economist Diane Coyle distils and elucidates these implications. Trust, she explains, is the fundamental precondition for commercial exchanges and business investments, and the civil justice system is the critical “social infrastructure” that has been developed to secure it. She highlights evolving private mechanisms for establishing trust, such as online rating and review systems, but also the limitations such alternatives have in terms of universality and authority – the attributes that mark the courts out as inherently public goods. Failure to maintain the public infrastructure could, therefore, jeopardise trust – and with it the Starmer government’s much-vaunted ‘mission’ to raise the UK growth rate.

Another of the government’s five ‘missions’ concerns health, and the building of a society where “everyone lives well for longer”. It seems a long way off in a country in which life expectancy is stagnating, and in the poorest postcodes people are dying outright earlier. So we asked the two pre-eminent scholars in two different academic fields – the public health expert Michael Marmot, and the pioneering access to justice researcher, Hazel Genn – to join forces and spell out, from their distinct perspectives, the connections that they see between the law on the one hand and tackling ill health on the other.

Decades of public health scholarship, a good chunk of it by Marmot himself, has uncovered cast-iron connections between social disadvantage and a host of maladies. Poor living conditions can very directly harm bodies (think of damp housing) and inflame anxiety, but can also – and more subtly – get ‘under the skin’ and, over time, ramp-up the risk of conditions including diabetes and ischemic heart disease. Marmot’s “social determinants of health” school of scholarship has often framed the response required in terms of “social justice”, but in this joint contribution he goes further, highlighting particular ways in which formal processes of law – including strengthening statutory rights to health-supporting entitlements – could advance this agenda.

From her vantage point, including as someone extensively involved with UK health–justice partnerships, Genn weaves into the piece compelling examples of the sorts of health-sapping problems of daily life – such as debt, bills and bad housing – which the right legal advice can help fix, and a taste of the academic evidence on the difference which providing that intervention can make. Another interesting takeaway is just how much time (and therefore NHS resource) family doctors can save, particularly in poorer neighbourhoods, if their patients are well-supported in securing their legal entitlements to benefits, housing and so on. When no such support is available, patients turn up with anxiety – and sometimes physical symptoms – that are palpably rooted in everyday problems which medics are not well placed to advise on fixing. A bit of time with a legal advice worker could be much more effective.

There is, according to the former inner-city MP Karen Buck, a clear parallel effect with the way our politicians are spending their time. Buck was one of Parliament’s most dedicated constituency caseworkers, which was just as well because her west London seat had an exceptionally heavy load of immigration issues and housing problems that needed addressing. But a whole welter of recent factors has pushed up, and is continuing to push up, the number of problems coming the way of MPs, including rising needs for some services, and squeezed budgets for almost all. Within that general picture, maladministration by understaffed bureaucracies, delayed court and tribunal hearings, and – most particularly – a dearth of legal advice services leaves constituents in trouble feeling bewildered. Finding most doors are shut, ever-more of them divert to one that politics makes it impossible to slam: the surgery of the local MP.

The burgeoning casework may help root MPs in the real world. Unlike some parliamentary traditionalists, Buck believes this work usefully opens the eyes of MPs to the efficacy – or otherwise – of the laws that they pass. But that positive needs to be weighed against downsides, for both constituent and representative. Even the very best politicians can’t give citizens in trouble the specialist advice that would benefit them most. A properly funded system of legal advice would, undoubtedly, serve citizens better. Then there is a question for Parliament and the country as to whether it wants its very best politicians to be spending quite so much time on casework that it could impede on what they’re able to achieve on the national stage.

One message bubbling up through these first four essays, then, seems to be that while politicians may have relatively little interest in the justice system except in its dealings with crime, that justice system has profound implications for them – affecting both their ability to pull off their big ambitions (such as the government’s missions) and the whole way that they themselves have to work. The fifth piece comes from a rather different point of view: its thrust is to warn lawyers against imagining that their work can substitute for democratic politics.

Frederick Wilmot-Smith is a barrister himself and is in agreement with all our other contributors (and, avowedly, the current government) that the rule of law is a singular virtue, safeguarding freedom from arbitrary rule. He worries a good deal about it seeping away, not least because of the growing official push to steer citizens towards settling many civil issues.[ref]For example see: CPR 1.1 – Civil Procedure (Amendment No. 3) Rules 2024[/ref] And he is clear that there are times – the attempted subversion of the 2020 US presidential election being one case in point – when thwarting of the rule of law amounts to the thwarting of democracy. Beyond that, however, he urges all of us – and particularly his fellow lawyers – to think of the ideals of law and democracy as distinct stars in a constellation of values, pointing to all sorts of cases where they might tug us in different directions. The justice system certainly needs some attention for its own sake, but when it comes to the risk to democracy, for Wilmot-Smith the things to worry about much more than the law are our underlying social norms and political culture.

By contrast Shameem Ahmad, who runs the Public Law Project, argues that legal processes and challenges are integral not so much to the procedures of democracy, but to what we might call a democratic society. Through effective and accessible justice, she insists, a Goliath-like state can “rearm David” – that is, the individual citizen – handing her or him the power of legal challenge to keep the state in check and working for the good of all. It is often said that the first duty of the state is the security of its citizens, and yet Ahmad details a pertinent case where – until litigation put things right – the state failed to respect the independence of domestic abuse victims from their abusers, a telling exemplar of just how important the civil justice system can be in allowing many citizens to live free from fear. Her stark conclusion is that in a world where authoritarian extremism is on the rise, shoring up the justice system now is especially urgent; because, with an ill political wind, it could soon enough become the last defence of all citizens against forces which aspire to do away with democratic rights entirely.

After six pieces by seven serious thinkers working in the UK, all more or less directly considering the justice system of England and Wales from distinct perspectives, it is useful to zoom right out and locate the discussion in a wider context. We asked Judith Resnik – Yale University’s leading theorist on the courts and citizenship – to help us do that. She opens her summative contribution with the various political shock waves rolling out at the time of writing from Washington and into American society, and the importance of the courts in containing them (or at least trying to). Without in any way disagreeing with the case for accessible justice made by Ahmad – about protecting citizens against the state – Resnik is most concerned to stress the contrary effect, whereby the courts are “resources” that democratic states themselves need to be effective. Why? Because their distinctly “structured interactions” are practically useful for all sorts of things – reconciling interests, managing social change, forging law-bound relationships – and also give rise to discourse that can often advance shared understandings and identities.

While this is a high-level, philosophical argument, Resnik also engages with some of the more practical concerns aired by our UK contributors. On a long view, she notes, a lot of the 20th century was about previously excluded people becoming entitled to the effective protections of the courts, and that more recent decades have been marked by policies that have restricted this, including the squeeze on legal aid resourcing in the UK and the drive for “tort reform” in the USA. She worries – in much the same way as Green and Wilmot-Smith – about what the reduced accountability and growing power imbalances create when open legal processes are replaced by “privatised” or hidden means of dispute resolution. And, just like Ahmad and Buck, she also worries a good deal about poor and harsh outcomes for individuals in relation to housing, work and social entitlements when legal support is not available and public services are in retreat.

We end the series with a stirring closing piece, a contribution drawn from a Spring 2025 lecture, delivered in Oxford, by the former Senior President of Tribunals, and, until recently, long-term Trustee of the Nuffield Foundation, Ernest Ryder. This is a valuable coda to the set in several respects. It confirms, from the point of view of one of the country’s most senior retired judges, that the justice system is in decline. It develops the argument – which dovetails with some of Green’s points, and makes for an interesting contrast with and challenge to the analysis of Wilmot-Smith – that the stricken condition of the courts has grave implications for the rule of law, and even more adverse potential knock-on effects on society’s values and even cohesion, as well as on the nature of our politics. Ryder also gives forensic attention to one particular root of current problems, quite distinct from the more general complaints about the lack of resources and political respect for justice: specifically, the constitutional muddle that was – as he sees it – created by New Labour reforms in the 2000s. The effect was, from his perspective, to downgrade and entirely politicise the old office of Lord Chancellor, and to pile managerial responsibilities on a set of senior judges and the courts service without entrusting them with the true managerial powers they would need to improve delivery.

We won’t dwell on describing the problems of the civil justice and tribunal systems in detail here. The pieces that follow amply document that. But having edited this collection of contributions as a whole, a few overarching thoughts are worth registering. While the first image brought to mind by the word ‘justice’ is often a prosecution in front of a jury, and while there are undoubtedly current problems in the criminal courts, the civil justice system exhibits equally serious problems that barely register in public debate. Many individuals – whether trying to secure welfare entitlements or simply seeking to redeem debts or achieve other private redress – are making the lonely discovery that a system they’d always assumed they could rely on doesn’t work as expected.

For those individuals, the immediate costs are obvious enough. Less obvious, and the thing this set of essays draws new attention to, is the shadow that faltering justice casts on other aspects of collective life – the toll on the economy, on public health, and on the work of our political representatives and institutions. On top of all this is the wider spread across society of dangerous understandings – that notional rights can be impossible to cash in, and that various public authorities we imagine to be ‘in charge’ lack the ability to make regulations and decisions stick. If such ideas become entrenched, society’s integrity and shared values are in jeopardy.

While the justice system is creaking, it is of course important to acknowledge it has not collapsed, and (mostly) continues to deliver justice, even if it does so slowly. Increasingly, though, lack of access and lack of speed combine to raise the question of workarounds and alternatives. Whether it is giant corporations’ algorithms substituting for legal process in consumer matters, or MPs’ offices doing what legal caseworkers might once have done, the combined effect of these pieces is to show that something important can be lost.

To appreciate this, one does not have to say that a legal approach, still less an actual ‘day in court’, is the best way to resolve every problem. The formal justice system isn’t everything. One reason there is such a crying need for the remedies of civil law just now is that many other important things – such as good public administration – seem to be in such short supply. Even when the courts are working well, they are expensive for the public, and often tiring and confusing for the individual. Careful balances need to be struck when it comes to managing resources for the courts themselves and the services that might reduce the need for using them.

Nonetheless, right throughout history, legal systems and courts have been one of the first and most foundational establishments that emerging states have devised. Other means of dispute resolution are perfectly valid. But to the extent that they are effective, it is often because all parties understand that the alternative of litigation is available if ultimately needed. The briefest thought experiment about what would happen if the justice system were to lurch from creaking into outright collapse – cue visions of endlessly unresolved disputes or even conflicting citizens taking disputes into their own hands – is enough to establish how badly we would miss what we’ve still just-about got.

Along with the frail condition of our justice system, what percolates through this collection of essays are the values and benefits that the system embodies and also does so much to embed across society. There is no reason why a society that was once moving towards increasingly open, effective and accessible justice cannot begin to steer towards it again. It is, as this collection of essays suggests, high time for a little respect and whole lot of repair.