Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 4’ Category

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

 

 

 

 

Covid 19 and the English Legal System (5): Parliamentary inquiries (revised)

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Those interested in how key actors in the legal world are trying to cope with the implications for the English Legal System of  Covid-19 might care to follow the work – currently on-going – of two  Parliamentary Select Committees.

The  House of Commons Justice Committee launched an inquiry into Coronavirus (COVID-19) on 31 March 2020. It is examining the impact on prisons, the probation service and the court systems. They have held three evidence gathering sessions in which they heard from a number of key witnesses, including the Lord Chief Justice, the Minister of State, key officials from Prisons and Probation, the Chair of the Magistrates Association. It is likely that the Committee will publish a relatively short report in the course of the next few weeks.

At the same time on 13 May 2020, the House of Lords Constitution Committee opened an inquiry into the Constitutional implications of Covid 19. This will be a more wide-ranging inquiry than that being held by the Commons Justice Committee.

The announcement of the inquiry states:

The Covid-19 pandemic and the Government’s measures to respond to it have significant constitutional implications, as well as health, social and economic ones. These include:

  • The ability of Parliament to hold the Government to account
  • Scrutiny of emergency powers
  • The operation of the courts

The Constitution Committee will consider these issues and other related matters as part of an umbrella inquiry into the constitutional implications of Covid-19. The Committee will initially explore questions such as:

  • What can Parliament do to maximise its scrutiny of the emergency regulations and to hold the Government to account effectively during lockdown? How are adjustments to procedures and processes working in the House of Lords?
  • What are the consequences for different ways of Parliament working on effectiveness, accessibility, fairness and transparency?
  • What emergency powers has the Government sought during the pandemic and what powers has it used and how?
  • What lessons are there for future uses of emergency powers, their safeguards and the processes for scrutinising them?
  • How has the Government used both law and guidance to implement the lockdown and what have been the consequences of its approach? How has this varied across the constituent parts of the United Kingdom?
  • What liberties has Parliament loaned the Government during lockdown? What are the processes for reviewing and returning them? Are the sunset provisions in the Acts and regulations sufficient?
  • How is the court system operating during the pandemic? What has been the impact of virtual proceedings on access to justice, participation in proceedings, transparency and media reporting?
  • How will the justice system manage the increasing backlog of criminal cases? Is it appropriate to rethink the jury system during the pandemic, and beyond, and if so how?

 

To date, the Committee has issued a call for evidence and has had a number of hearings at which oral evidence has been presented. Among the witnesses who have already given evidence is the ‘guru’ of the use of IT in the delivery of legal services, Prof Richard Susskind and the leading researcher on the justice system, Prof Dame Hazel Genn.

I suspect this report will take somewhat longer to appear than that of the Commons Committee.

In addition to these two inquiries which cover many aspects of the working of the legal and justice systems, in mid-May 2020, the House of Commons Public Administration and Constitutional Affairs Committee also launched an inquiry: Responding to Covid-19 and the Coronavirus Act 2020. The aim of this inquiry is set out as follows:

The Coronavirus Act 2020 was emergency legislation passed by Parliament on 25 March, to provide the Government with the powers it wanted to tackle the Covid-19 pandemic in the UK.

Under section 98 of the Act 2020, every six months there is “parliamentary review” which means that the Government must, so far as is practicable, make arrangements for the following motion to be debated and voted on: “That the temporary provisions of the Coronavirus Act 2020 should not yet expire.”

PACAC is launching an inquiry to scrutinise the constitutional and public administration aspects of the Act, with the goal of supporting and informing that debate.

It has issued a call for evidence but has not to date arranged for any meetings or hearings.

For links to all these inquiries see:

The Justice inquiry is at https://committees.parliament.uk/work/254/coronavirus-covid19-the-impact-on-prison-probation-and-court-systems/

The House of Lords Constitution Committee is at https://committees.parliament.uk/work/298/constitutional-implications-of-covid19/

The evidence of Profs Susskind and Genn is at https://www.parliamentlive.tv/Event/Index/0f0810d1-9489-4506-9108-139f6d4f221e

The PACAC inquiry is at https://committees.parliament.uk/work/310/responding-to-covid19-and-the-coronavirus-act-2020/

All evidence sessions held by Parliamentary Committees can be accessed at https://parliamentlive.tv/Commons.

Covid 19 and the English Legal System (2) Virtual hearings and on-line courts

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Almost exactly a year ago (May 2 2019) I noted in this blog the introduction of the Courts and Tribunals (Online Procedure) Bill. This was to be an important staging post in the process of reforming Courts and Tribunals, to enable more hearings and other proceedings to be on-line. The Bill would have provided for the creation of a new Procedure Committee to deal with how such hearings and other proceedings should take place. The Bill fell when the General Election held 2019 was announced.

Nevertheless, far from derailing the Government’s reform plans, the Covid 19 pandemic has done more to speed up progress towards the development of new online courts than might have been imagined. Although the Online Procedure Bill has not, to date, been introduced, the Coronavirus Act 2020 has effectively stepped in. For as long as the Act is in force (the legislation is time-limited to 2 years), it provides for the transformation of ways in which courts and tribunals are to be run. It does this by disapplying or amending existing legislation regulating a large number of aspects of public policy.

Sections 53 to 57 and Schedules 23 – 27 of the Coronavirus Act deal with the use of video and audio technology in Courts and Tribunals. I do not propose to go through these provisions in detail. But it worth setting out the policy objectives of these provisions. I have adapted these from the Explanatory Notes to the Act:

1. [Although] the courts currently have various statutory and inherent powers which enable them to make use of technology, the Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.

2. Provisions are also made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.

3. There are existing restrictions on photography and sound recording in physical courts. (Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings.) These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible. Provisions in the Act therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and live-links.

4. The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore ensures that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.

Although these specific provisions will, I hope, have a limited shelf life, they are having the effect that, like it or not, judges, legal practitioners and other court and tribunal users are being forced to use these new technologies.

There have been sporadic reports in the professional legal press and elsewhere that, actually, many really like the new ways of doing business and are surprised how well they work. Others, particularly where the technology does not work as it should, are less enthusiastic.

But the champions of reform among the judiciary and policymakers clearly see these currently emergency procedures as a really valuable practical testbed and the precursor to significantly more substantial reform in the years ahead.

The Act can be found at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted

A useful report on these matters from Susan Acland-Hood, who is leading the Courts and Tribunals reform programme, was published on 30 April 2020 and is available at https://insidehmcts.blog.gov.uk/2020/04/30/using-remote-hearings-to-maintain-justice-during-the-coronavirus-pandemic/

See international developments at the website: https://remotecourts.org/