Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 4’ Category

Reviewing the mandatory retirement age for judges

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The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:

  1. promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension which enables retired judges to continue to sit post-retirement);
  2. preserves judicial dignity by avoiding the need for individual health and capacity assessments;
  3. maintains public confidence in the capacity and health of the judiciary;
  4. supports workforce planning and allows for greater career progression/ diversity;
  5. shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).

There have, however, been practical problems associated with the policy. In particular, the recruitment picture for many judicial offices in England and Wales has changed significantly in recent years. There have been more frequent and higher volume recruitment for most types of judges while a greater proportion of recruitment exercises have resulted in shortfalls. Not all available posts have been filled. This has affected appointments all levels in the judiciary including the lay magistracy.

Additionally, life expectancy in the UK has improved since the mandatory retirement age for most judges was legislated to be 70 in 1993. Many individuals now tend to live and work for longer.

In recent years, the MRA has become a subject for debate. In November 2017 the House of Commons Constitution Committee’s Follow-up Report on Judicial Appointments gave further consideration to changing the retirement age and the Committee asked the Lord Chancellor and senior members of the judiciary to reflect on whether the current MRA of 70 continued to be appropriate given the demands on judicial resource.

In the 2018 Major Review of the Judicial Salary Structure, the Senior Salaries Review Body (SSRB) commented that some judges would stay in post for longer were the MRA raised. They also suggested that the current MRA may dissuade some people from joining the judiciary as they felt that they would be unable to serve for a sufficiently long time once appointed.

In 2019 the Justice Select Committee’s report on The Role of the Magistracy, acknowledged the proposals of the Magistrates Association to allow magistrates to sit beyond the MRA if demand could not be met by recruitment alone. However, it was noted that any such provision would require legislation.

Spurred on by these comments, the Government has now published a Consultation Paper on whether the MRA should be amended. 2 Options are identified: a rise to the age of 72; or a rise to the age of 75. In addition, the consultation also asks whether magistrates should be able to be asked to continue sitting even after retirement.

The Lord Chancellor notes that “The retirement age for most judges was last legislated for 27 years ago, and the time is now right to consider whether the age of 70 continues to achieve its objective of balancing the requirement for sufficient judicial expertise to meet the demands on our courts and tribunals whilst safeguarding improvements in judicial diversity and protecting the independence of and confidence in our judiciary.”

The Consultation opened in July 2020 and runs until mid-October 2020.

Documents on the review are at https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/

Written by lwtmp

August 24, 2020 at 4:26 pm

Equal Treatment Bench Book: revised edition

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A revised edition of the Equal Treatment Bench Book was published in March 2020. It aims to increase 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. (I wrote about the first edition of the revised bench book in this blog in April 2018.)

This latest edition of the Equal Treatment Bench Book 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. It includes new and expanded sections on litigants in person, refugees, modern slavery, Islamophobia and anti-Semitism.

There are practical suggestions 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.

The Equal Treatment Bench Book has also issued guidance on the conduct of remote hearings.

See https://www.judiciary.uk/publications/new-edition-of-the-equal-treatment-bench-book-launched/

Written by lwtmp

August 20, 2020 at 11:40 am

Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession

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I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).

Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.

The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.

The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.

As regards Magistrates’ Courts,  the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.

By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.

The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.

The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.

The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm

Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm

 

 

 

 

 

 

Video Hearings Process Evaluation

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One of the many developments included in Her Majesty’s Courts and Tribunals Service (HMCTS) Transformation programme is greater use of remote hearings. Two researchers at the London School of Economics were commissioned to make an independent evaluation of the use of remote hearings. Their findings were published on 29 July 2020.

The report examined the development, implementation, and user experience of the video hearings service and platform across four different hearing types in the civil, family, and tax jurisdictions: Set Aside Judgments, First Direction Appointments, Short Notice Hearings, and Basic Tax Appeals. These were issues which judges in the pilot centres (Birmingham and Manchester) thought suitable for remote hearings.

Methods involved a combination of observation, semi-structured interviews, and analysis of HMCTS documentation. However, the sample of hearings studied was small – just 23 in total.

Some of the research findings might have been predicted: some hearings were subject to technical glitches; judges did not have all the kit (especially a second screen) they would like; they probably needed some more training.

From my perspective, the most interesting findings of the research related to the user experience. The summary states:

Most users commented on the convenience of having a video hearing and the time and cost it saved them. Some users also reported reduced stress and anxiety due to being able to take part in a hearing from their home or from their solicitors office.

Legal professionals felt the cases selected for the pilot were appropriate and also recognised this option as a benefit for parties.

Users reported finding their video hearing easy, effective and straightforward. However, some recognised a challenge with communicating over video and felt that it might be difficult for people who are not familiar with or do not have
access to the suitable technology.

Users maintained the view that pre-hearing support was highly valuable and helped them navigate the technology on the day of their hearing. All users were highly satisfied with how the judge managed the hearing and the formality of the hearing.

Users who experienced technological issues did not report these as unmanageable and thought that judges dealt with any disruption effectively.

The cases used for this research were all dealt with pre-Covid-19. Since then the pace of change has increased and there has been a considerable rise in the numbers of cases being dealt with remotely. An evaluation of this new digital landscape will be published in due course.

While some may wish this, a return to the pre-Covid days is unlikely. A key challenge, however, will be to support those who find the technologies hard to manage; this has to be faced by those seeking to put more hearings on line.

The report, written by Meredith Rossner and Martha McCurdy, may be found at https://www.gov.uk/government/publications/hmcts-video-hearings-process-evaluation-phase-2-final-report

 

Written by lwtmp

August 1, 2020 at 12:53 pm

Transformation of the Justice System: reports on the progress of the HMCTS reform programme

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It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.

  • The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.

See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement

Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.

The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)

  • One issue, raised in both the above reports,  related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)

This has not to date led to a further report from the Public Accounts Committee.

HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms

I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.

Proposed Constitution, Democracy and Rights Commission

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One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:

  • the relationship between the government, parliament, and the courts;
  • the functioning of the royal prerogative;
  • the role of the House of Lords; and
  • access to justice for ordinary people.

Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.

The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.

Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.

Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.

The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/

Remote/online courts – worldwide developments

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Over recent years, there have been significant moves towards the use of Information Techologies in the delivery of legal and dispute resolution services. The Covid 19 pandemic has provided a sharp impetus towards the adoption of new practices and procedures, given the difficulties of holding trials in traditional court-room settings arising from the need for social distancing.

Under the leadership of Prof Richard Susskind, a consortium of groups interested in the development of on-line courts has created a brilliant website, Remote Courts.org, which provides an extensive clearing-house of information about developments around the world.

One of the primary objectives of the website is to try to ensure that, as ideas emerge, wheels are not unnecessarily re-invented. There is now a great deal of international experience which can be drawn on, and this is expanding rapidly.

The site is available at https://remotecourts.org/

 

 

 

Written by lwtmp

July 3, 2020 at 11:32 am

Covid 19 and the English Legal System (8): guidance on new working practices

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As readers of this blog will already be aware, I have been considering the impact of the Covid 19 pandemic on the English Legal System. There will, I am sure, be many more blog entries to come.

For those not involved on a daily basis in the work of courts and tribunals, it can be hard to get an overview of what is happening.

An invaluable source of information is available on the Judiciary website which brings together the vast range of advice and guidance on how courts and tribunals should be working in the current environment. Some of this advice is general – applying across the board; other advice relates to specific jurisdictions.

Access to the guidance, which is updated when necessary, is available at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/

Covid 19 and the English Legal System (7): steps to recovery

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Since March 2020, the Government has worked closely with the judiciary and others to ensure the justice system continues to perform its vital role while keeping court and tribunal users safe.

To achieve this, Her Majesty’s Courts and Tribunals Service has rapidly expanded the use of technology to allow hearings to be conducted by phone and video.

HMCTS also temporarily closed around half of its buildings to focus effort and resources more effectively. The most urgent cases have been prioritised by the judiciary to ensure public safety, protect the vulnerable and safeguard children.

Having responded to the immediate crisis, HMCTS is now focusing on how to recover its operations to increase courts and tribunals capacity to deal both with normal workloads across jurisdictions and outstanding cases.

HMCTS has recently published a progress report to update those interested on its recovery plans. It sets out in a short booklet format the areas of working being undertaken in the short and medium terms.

It assumes that the need to continue to maintain social distancing as far as possible will continue, at least into 2021. It also emphasises that the programme of reform of Courts and Tribunals is continuing. Lessons from the experience of new ways of working, resulting from the need to meet the challenge of Covid 19, must be learned as the broader reform programme unfurls.

The Progress update is at https://www.gov.uk/government/publications/court-and-tribunal-recovery-update-in-response-to-coronavirus

The update has been accompanied by a statement from the Lord Chief Justice and the Vice President of Tribunals, available at https://www.judiciary.uk/announcements/courts-and-tribunals-recovery/

See also a blog from the Head of HMCTS at https://insidehmcts.blog.gov.uk/2020/07/01/coronavirus-recovering-in-our-courts-and-tribunals/

 

The Legal System of Wales – recent developments

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In my book, Introduction to the English Legal System, I write that the book is “about the English legal system (which includes at least for the present the legal system in Wales)”.

However, devolution has led to a number of developments which need to be noted which point to the creation of a distinct system of government for Wales. In this context it is possible to see the outlines of a new Welsh Legal system beginning to emerge.

1 The National Assembly of Wales – executive and ‘legislature’

The first Government of Wales Act 1998 (GOWA 98) began a process of devolving powers to Wales. It created a new body, the National Assembly of Wales. Under GOWA 98 this body had executive functions in delivering policy and services in specific areas such as agriculture, culture, economic development, education, health, housing, local government, social services and planning. Henceforth, the National Assembly became responsible for carrying those out in respect of Wales.

At the same time. the National Assembly was given limited legislative powers including the making of regulations, rules and orders, and the giving of financial assistance. The National Assembly was also the body which held the Welsh Government to account.

This blending of executive functions and parliamentary functions proved to be very confusing.

In fact, soon after the National Assembly of Wales was established an informal division was created between the ‘Welsh Assembly Government’ (Ministers and civil servants predominantly based in Cathays Park, Cardiff and other offices across Wales) and the ‘National Assembly for Wales’ (Assembly Members and officials based in Cardiff Bay).

2 National Assembly and Welsh Government

The informal division between the legislative and executive branches of the Welsh Government was formally recognised in the Government of Wales Act 2006 (GOWA 2006).

This established a newly constituted National Assembly as the legislature. It also created a separate executive – initially called the ‘Welsh Assembly Government’, later amended to the ‘Welsh Government’. It was made accountable to the National Assembly.

GOWA 2006 gave the National Assembly power to pass its own primary legislation – initially called ‘Assembly Measures’, from 2011 called  ‘Assembly Acts’. These Measures and Acts were limited to 21 areas of activity which were conferred on the National Assembly by the UK Parliament in Westminster. The Wales Act 2014 increased those power by giving the National Assembly limited taxation powers.

The Wales Act 2017 changed the system for determining the powers of the National Assembly from a ‘conferred powers’ model to a ‘reserved powers’ model. (This is consistent with the models adopted for Scotland and Northern Ireland.) In a reserved powers model, there is no specific list of devolved subjects. The model operates on the basis that everything is devolved unless it is reserved to the UK Parliament.

3. Senedd Cymru or the Welsh Parliament.

The increased importance of the Parliamentary function led politicians in Wales to argue that the name of the National Assembly should be altered to reflect more clearly its legislative function. After a period of consultation and legislation, the name of the National Assembly of Wales was changed, on 5 May 2020, to ‘Senedd Cymru or the Welsh Parliament’.  With full law-making powers and the ability to vary taxes, the new name will reflect its constitutional status as a national parliament.

4. A Welsh Justice system

Under the doctrine of the separation of powers, governments comprise 3 separate branches: a legislature, an executive and a judiciary. For Wales, the first two of these are now in place. Currently, there is no clearly delineated Welsh Justice system. There are, however, moves to change the current position.

  • Commission for Justice in Wales

The Welsh Government established a Commission for Justice in Wales in December 2017. It reported in 2019. It was chaired by Lord John Thomas, who had recently retired as the Lord Chief Justice for England and Wales.

Its report is a very wide-ranging one covering such issues as: legal aid and advice; new approaches to civil dispute resolution; new approaches to the sentencing and rehabilitation of offenders and the protection of victims of crime. I plan to summarise its principal recommendations in a separate blog item.

The work of the Commission for Justice has been complemented by a programme of social research, funded by the Nuffield Foundation, on the development of Administrative Justice in Wales, which has produced reports on matters including housing and education.

  • The Legislation, Justice and Constitution Committee Consultation

Arising from the Commission’s report, the Legislation, Justice and Constitution Committee of Senedd Cymru ran,  from March to June 2020, a consultation on Making Justice Work in Wales.  Its terms of reference stated that its work should be in 2 parts: (i) fact-finding and looking forward; and  (ii) analysis of how the justice system could operate more effectively in Wales

In Part 1, the Committee intends

  • To identify and map the Senedd and Welsh Government’s existing responsibilities and functions relating to the scrutiny of justice matters;
  • To identify and review the current funding arrangements for justice matters already within the responsibility of the Senedd and Welsh Government;
  • To consider the existing operation of justice functions in Wales, including Welsh Government policies in devolved areas and their interaction with the administration of justice;
  • To consider the impact of relationships between UK and Welsh competence on specific justice matters and to identify areas of concern;
  • To consider how the Senedd could have a more proactive role in the scrutiny of justice, including how justice bodies could engage with the Senedd.

In Part 2,  the Committee is asked:

  • Using results of Part 1, to explore any areas of concern in the balance of justice powers and accordingly whether a more coherent and joined-up approach to justice policy could be achieved;
  • To consider the implications, consequences and practicalities of any potential justice devolution;
  • To learns lessons on the approach to scrutiny of justice from the UK and other legislatures.

The outcome of the inquiry has not yet been published.

Sources:

General information about the Welsh Government is at https://gov.wales/

Information about Senedd Cymru is at https://senedd.wales/en/Pages/Home.aspx

The Commission on Justice in Wales Report is at https://gov.wales/commission-justice-wales-report

The Nuffield Foundation sponsored programme on Administrative Justice in Wales is at https://www.nuffieldfoundation.org/project/paths-to-administrative-justice-in-wales

Information about the Senedd Cymru Committee inquiry is at https://business.senedd.wales/mgConsultationDisplay.aspx?id=388&RPID=1017209288&cp=yes