Archive for the ‘Chapter 4’ Category
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
End of the 2019-2021 Parliamentary Session: legislative and other outcomes
It feels as though the 2019-2021 Parliamentary session, which started immediately after the election of the Boris Johnson Government and has just come to an end has gone on for ever. The dramas of Brexit were anticipated; those of the Covid-19 pandemic were certainly not. This note looks at some of the key outcomes from this session, in particular those that impact on my book, Introduction to the English Legal System, the 15th edition of which will be published soon.
As I have written before, despite all the attention and time that needed to be spent on dealing with the pandemic, four important pieces of legislation managed to get through the Parliamentary process.
The Divorce, Dissolution and Separation Act 2020 and the Sentencing Act passed in 2020. Both have been considered in these notes and are included in the new edition of the Book.
Two other important pieces of legislation completed their parliamentary journey in the dying days of the 2019-2021 session.
First is the Domestic Abuse Act 2021 which should have a major impact on how domestic abuse is dealt with by the police, social authorities and the courts. I have written about this legislation before (see 15 March 2019, 21 May 2020, and 23 July 2020). A Press Release summarizing the key features of the new Act – which has taken a long time to reach the statute book – is at https://www.gov.uk/government/news/landmark-domestic-abuse-bill-receives-royalassent .
The other Act which should be noted here is the Counter-Terrorism and Sentencing Act 2021, about which I have also written before (on 22 July 2020). This is designed to strengthen provisions relating to the detention and monitoring of those convicted of terrorist offences. See the press release at https://www.gov.uk/government/news/longer-jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent for a brief overview of this Act.
This Act needs to be kept distinct from the quite separate Police, Crime, Sentencing and Courts Bill. This was not introduced into Parliament until March 2021. It has already attracted considerable public attention, with demonstrations against the Bill being held in many cities throughout the country.
The Bill picks up proposals in the Smarter Approach to Sentencing White Paper, about which I wrote here on 9 October 2020. But it also reflects earlier Conservative Party manifesto pledges. An extremely helpful background note, setting out both the origins of the Bill and it principal features can be found in the House of Commons Library Research Briefing at https://commonslibrary.parliament.uk/research-briefings/cbp-9158/ which was published in March 2021.
Media headlines are focused on issues relating to powers to limit the right to protest peacefully, but there is a great deal more in this wide-ranging Bill. This Bill will be brought back to Parliament once the new 2021-2022 session gets under way.
Also worth mentioning in this context is the Parliamentary Constituencies Act 2020. This provides for major changes to the boundaries of parliamentary constituencies, to try to ensure that there is approximately the same number of voters in each constituency. This is an idea that has been around for some time – originally linked with proposals to reduce the number of MPs in the House of Commons. This aspect of the changes has been abandoned. The work of redrawing the boundaries will be undertaken by the Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland. Final reports are due by 1 July 2023. See further https://www.gov.uk/government/news/new-law-passed-will-make-voting-in-uk-general-election-fairer
What the legislative landscape for the next 12 months will look like will become clearer after the Queen’s Speech, which will be delivered on 11 May 2021. This will be the subject of a separate note.
Mandatory retirement age for judges
For a number of years, concern has grown about the ability of the courts’ system to recruit judges, particular to the most senior positions in the High Court. One obvious idea, which gained considerable traction in 2020, was that the mandatory retirement age (MRA) for judges, set some years ago at 70, should be increased.
In July 2020, the Government launched a consultation on whether this would be a good idea, and if so what any new age limit should be. The results of this consultation are now in and were published in March 2021.
The Government has now decided that it will increase the MRA to 75, thereby putting the MRA back to the level it was some 20 years ago when the present MRA was introduced.
It might have been thought that this change could be made relatively straightforwardly, but in fact statutory amendment is required. In the familiar phrase used on these occasions, this will happen ‘when parliamentary time allows’.
This is often seen as pushing the required change into some indeterminate future date. My hunch is that, in this context, there is a degree of urgency. I doubt whether there will be a separate Act of Parliament on the point. But it would not surprise me if a clause was inserted in an appropriate Bill going through Parliament in the near future.
The consultation and the Government’s response are available at https://www.gov.uk/government/consultations/consultation-on-judicial-mandatory-retirement-age
What do judges think about their job?
The UK Judicial Attitude Survey is a longitudinal survey conducted by Prof Cheryl Thomas of the University College London Judicial Institute. It covers all serving salaried judges in England & Wales, Scotland and Northern Ireland. It assesses judges’ views and experiences of their working lives over time. The results of the 3rd JAS were published in February 2021; earlier surveys were published in 2016 and 2014. With close to 100% participation over 6 years, this report provides a reliable assessment of judicial attitudes to their working lives and how they may have changed over this time period. The following note, which I have adapted from the Executive Summary, sets out the headline findings.
1 General feelings
Virtually all judges feel they provide an important service to society and have a strong personal attachment to being a member of the judiciary. They have a deep commitment to their job.
While judges feel most valued by their judicial colleagues at court, court staff, the legal profession and parties in cases, only two thirds feel valued by the public. Very few judges feel valued by the Government (9%) or the media (12%), and no judges feel greatly valued by the Government or media.
2 Working conditions
A majority of judges said that working conditions were worse than they were two years ago,
The courts judiciary feels working conditions have deteriorated more in the last two years than do judges in UK tribunals.
A majority of judges rated the following as Good or Excellent: security at court, quality of administrative support and physical quality of judges’ personal work space. One working condition rated Poor by a majority of judges was the morale of court and tribunal staff.
Over a third of judges continue to have concerns about their safety out of court.
Almost half of all judges said they would like more guidance on how to deal with internet and social media coverage of their work as a judge.
3. Salary and pensions
Most judges were paid more before they became a judge than they are paid in post. Two-thirds of all salaried judges feel that their pay and pension entitlement combined does not adequately reflect the work they have done and will do before retirement.
4. IT Resources and the New Digital Programme
A majority of judges said that the standard of IT equipment provided to them personally to use in 2020 had improved from 2014 and 2016, and that internet access and IT support in 2020 had also both improved from 2014 and 2016. But they felt that the standard of IT equipment used in courts and tribunals in 2020 had continued to decline since 2014 and 2016.
By 2020 virtually all salaried judges were on e-Judiciary (the internal web-based communications system), and most judges rated it as either Excellent to Good or Adequate.
By 2020 wifi was available in nearly all court/hearing rooms. Most judges rated its quality as Excellent/Good or Adequate.
5. Working during the Covid-19 emergency
During May-June 2020, a majority of judges said that the judiciary was managing change well during the Covid-19 emergency. The extent to which judges were working in their court or tribunal varied substantially by judicial post during the first lockdown in May-June 2020.
6 Future planning
A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years. In 2020, a new factor, “lack of respect for the judiciary by government”, was more significant in prompting judges to leave early than any other factor identified in 2016. There was also a substantial increase from 2016 in judges who said that stressful working conditions, increases in workload and further demands for out of hours work would make them more likely to leave the judiciary early.
A majority of judges said the same 3 factors would make them more likely to remain in the judiciary: higher remuneration, better administrative support and restoration of previous pension entitlements.
7. Recruitment
In 2020, almost two-thirds of all judges said they would encourage suitable people to apply to the judiciary. The main reasons for this were: the chance to contribute to justice being done , the challenge of the work, public service and intellectual satisfaction
The full report is available at https://www.judiciary.uk/announcements/judicial-attitudes-survey/
Responding to Covid-19: the work of tribunals
All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.
By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.
In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.
The outcome is truly impressive and shows how much can be done. Highly recommended read.
Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.
See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.
The latest edition of Tribunals
Equal Treatment Bench Book – 2021 revision
The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..
The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals. It is designed to enable effective communication and suggests steps which should increase participation by all parties.
This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.
There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.
There is new and expanded content on:
- The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
- Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
- Reducing jargon and legalese
- Assisting a litigant who has difficulty reading or writing
- Extended guidance in relation to litigants-in-person (ie people representing themselves)
- New entries in the disability glossary
- Confidence in the courts of minority ethnic communities
- Sensitivity if a witness is experiencing menopausal symptoms
Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.
The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/
Reform of the justice system: update on progress
Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.
Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.
Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/
This links to the principal speeches which are on YouTube.
Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 