Archive for the ‘Chapter 4’ Category
The changing constitution – abolition of the Select Committee on Political and Constitutional Reform
Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.
For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/
Judicial Diversity statistics 2015
Getting membership of the judiciary more reflective of the population as a whole is a challenge that the Judicial Appointments Commission has been grappling with for many years. The latest statistics, published at the end of July 2015, suggest that some progress is being made – more with women than with those from the black and ethnic minority communities.
The headline figures from the latest statistical report show:
- Eight out of 38 Court of Appeal judges are women (21 per cent). In April 2014 the number was seven (18 per cent)
- The number of High Court judges who are women remains at 21 out of 106, (now 108), (19 per cent)
- The number of female Circuit Judges increased from 131 in April 2014 to 146 in April 2015 (going from 20 per cent to 23 per cent)
- More than half (53 per cent) of the 60 court judges under 40 years of age are women.
- In tribunals, 56 per cent of the 89 judges under 40 are women
- The overall percentage of female judges has increased in both the Courts and Tribunals from April 2014 to April 2015 from 24.5% to 25.2% in the Courts and 43.0% to 43.8% in the Tribunals
- The percentage of Black and Minority Ethnic (BME) judges across Courts and Tribunals is unchanged at 7 per cent
- 12 per cent of judges across Courts and Tribunals under 50 years of age are from a BME background
- 36 per cent of Courts judges were not barristers by professional background (down from 37 per cent). In Tribunals the figure is 67 per cent (down less than one per cent).
For further information see https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2015/
Reviewing the structure of the civil justice system
An essential part of the HMCTS reform programme involves deciding how best to deliver civil justice in England and Wales in a modern age of information technology.
The Lord Chief Justice and the Master of the Rolls, as Head of Civil Justice, have recently asked Lord Justice Briggs to carry out an urgent review of the structure of the courts which deliver civil justice. His work is designed to ensure that the structure of the court system aligns with the reform programme and in addition to look at the overall structure of civil justice. He has also been asked to look at the relationship of those courts with the Family Court and with tribunals.
This aim is to assist HMCTS by ensuring that the reform programme comes up with a service which makes best use of the large capital investment proposed and provides a modern, efficient and accessible civil dispute resolution service for all.
An interim report is scheduled for December 2015.
The announcement is at https://www.judiciary.gov.uk/announcements/message-from-the-lord-chief-justice-and-the-master-of-the-rolls-civil-courts-structure-review/
Review of the Courts and Tribunals estate: consultation
On 16 July 2015, the Government published proposals for reviewing the numbers of courts and tribunals buildings, with as view to amalgamating some and closing others.
At present (and despite recent closures) Her Majesty’s Courts and Tribunals Service still operates 460 courts and tribunal hearing centres across England and Wales. The estate costs taxpayers around half a billion pounds each year, and at present, much of it is underused. For example, in 2014, over a third of all courts and tribunals were empty for more than fifty per cent of their available hearing time.
The new consultation puts forward proposals that aim to reduce this surplus capacity. It proposes the closure of 91 court/tribunal buildings. These represent 16% of hearing rooms across the estate which are, on average, used for only a third of their available time. That is equivalent to fewer than 2 out of 5 days in a week. Indeed, the majority of these courts are not used for at least two thirds of their available time, and one in three are not used three quarters of the time.
The arguments against closure tend to fall into two categories. First, is that courts are often landmark buildings, whose closure will adversely affect specific communities. The second, is that closure will reduce the ability of users to get to court for hearings. On the latter point, the Government notes:
1. Attending court is rare for most people. It will still be the case that, after these changes, over 95% of citizens will be able to reach their required court within an hour by car. This represents a change of just 1 percentage point for Crown and magistrates’ courts and 2 percentage points for County Courts. The proportion of citizens able to reach a tribunal within an hour by car will remain unchanged at 83%.
2. To ensure that access to justice is maintained, even in more rural locations, the Government is committed to providing alternative ways for users to access court/tribunal services. That can mean using civic and other public buildings, such as town halls, for hearings instead of underused, poorly-maintained permanent courts.
3. In my view by far the most important argument is that the Government argues that it is reforming the courts and tribunal service so that it meets the needs of modern day users. As it brings in digital technology for better and more efficient access to justice (which hitherto has been pitifully slow), fewer people will need to physically be in a court.
The full consultation is at https://www.gov.uk/government/consultations/proposal-on-the-provision-of-court-and-tribunal-estate-in-england-and-wales. The Consultation runs until early October 2015.
On the question of amalgamation of existing buildings, the Government states that it is not consulting on these matters but will be liasing with stakeholders in the places affected.
Revolution in the Justice system?
On 23 June 2015, the Lord Chancellor delivered a major speech on his vision for the development of the Justice system. Mr Gove is not shy of taking on existing established practices – witness his battles with the teachers when he was Secretary of State for Education under the Coalition Government.
In his speech, entitled What does a one nation justice policy look like? he argues that the justice system is in need of fundamental reform if is it to deliver access to justice to ordinary people.
A potentially very important difference between what he was trying to do in the world of education and what he now seeks to do to the justice system is that for the latter, much of the initiative for reform is coming from the judiciary itself. They see the need for better use of court facilities, fundamental investment in IT which would enable much legal work to be done without attendance at courts, support for new ideas – in particular in civil justice – endorsing proposals recently set out by Justice in its report Civil Justice in an Age of Austerity. (see this blog, entry for 5 May 2015)
First reactions to the Lord Chancellor’s speech can be heard in a special edition of the BBC programme Law in Action which was broadcast on the same day. The discussion – by Sir Stanley Burnton, Dame Hazel Genn and Keir Starmer – provides a useful basis for understanding what may start to unfold in the justice system over the next five years
What is absolutely certain is that anyone starting the study of law should be aware of what is in the pipeline – things are likely to change pretty quickly.
To read the speech go to https://www.gov.uk/government/speeches/what-does-a-one-nation-justice-policy-look-like
To hear the Law in Action Broadcast go to http://www.bbc.co.uk/programmes/b05zktnf#auto
The Centre for Justice Innovation, whose work is mentioned in the programme has a website at http://www.justiceinnovation.org/
Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System
The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.
I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.
Here are my personal comments:
Enterprise Bill.
The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:
- Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling in particular, late payment issues;
Immigration Bill
Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:
Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 thelast government cut the number of appeal rights but other than foreign criminals, migrants retain an in-countryright of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
To create a presumption that suspects will be released without bail unless it is necessary.The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
Implementation of Law Commission Reports
The 5th review of Implementation of Law Commission Reports was published in March 2015. This states that the number of Law Commission reports on which no further steps towards implementation are being taken has been reduce to 1 – on compensation for substandard administrative action. A reasonable number of reports have been implemented wholly or in part, while a longer list of reports is still subject to further consideration in Government.
While implementation of Law Commission reports will never reach 100%, there are indications that the success rate is improving slowly.
Online Dispute Resolution – proposals from the Civil Justice Council
The Civil Justice Council has just published an important report on the potential for the use of new processes to deal with disputes in small value claims, under £25,000.
In summarey, the report states:
‘Our principal recommendation is that HM Courts & Tribunals Service (HMCTS) should establish a new, Internet-based court service, known as HM Online Court (HMOC). We recommend that HMOC should be a three-tier service.
- Tier One of HMOC should provide Online Evaluation. This facility will help users with a grievance to classify and categorize their problem, to be aware of their rights and obligations, and to understand the options and remedies available to them.
- Tier Two of HMOC should provide Online Facilitation. To bring a dispute to a speedy, fair conclusion without the involvement of judges, this service will provide online facilitators. Communicating via the Internet, these individuals will review papers and statements and help parties through mediation and negotiation. They will be supported where necessary, by telephone conferencing facilities. Additionally, there will be some automated negotiation, which are systems that help parties resolve their differences without the intervention of human experts.
- Tier Three of HMOC should provide Online Judges – full-time and part-time members of the Judiciary who will decide suitable cases or parts of cases on an online basis, largely on the basis of papers submitted to them electronically as part of a structured process of online pleading. This process will again be supported, where necessary, by telephone conferencing facilities.
2.5
The establishment of HMOC will require two major innovations in the justice system of England and Wales. The first is that some judges should be trained and authorized to decide some cases (or aspects of some cases) on an online basis. The second innovation is that the state should formally fund and make available some online facilitation and online evaluation services.
To ensure the implementation of our principal recommendation, we propose three supporting recommendations:
• that HMCTS introduces an ODR stream into its current programme for the reform of civil, family, and tribunal work, and allocates a modest fraction of its £75 million annual reform budget (over five years) for the establishment of HMOC;
• that all political parties offer in-principle support for HMOC, as a viable way of increasing access to justice and reducing the cost of the resolution of civil disputes; and
• that the Civil Justice Council invites the ODR Advisory Group to commence a new phase of work, collaborating with HMCTS and the Judiciary in formally piloting ODR, designing HMOC, and raising awareness of this new approach to the handling of civil disputes.
Although our terms of reference are restricted to civil claims under the value of £25,000, we believe that that the jurisdiction of HMOC should also be extended to suitable family disputes and to appropriate cases that come before today’s tribunals.’
It seems to me that developments on these lines are inevitable, for two particular reasons:
First, there are already in existence in the UK a number of dispute resolution procedures that are efficient and very cost effective using modern IT. Examples mentioned in the report include the Financial Services Ombudsman scheme, the Traffic Penalty Tribunal scheme, and Resolver.co.uk. However the majority of live examples are currently operating abroad. It is a pity that other similar procedures already operating in UK are not mentioned – for example the tenancy dispost dispute resolution schemes, all of which operate online and are free to appellants. (I am Chair of the Board of one of the companies offering this service.)
Second, the EU is in the final stages of ensuring that new forms of consumer ADR and ODR will be in place in member countries in the near future.
However, I also think more work needs to be done on considering the sources of the resources needed for running the service. Will this all come from the state? from users? from insurance companies needing to get disputes resolved? from industry bodies?
It also needs to be asked who the adjudicators should be. The report talks about members of the judiciary. But large numbers of disputes do not involve complex questions of law – they depend on the finding of facts based on evidence provided. It is not self evident to me that the only people capable of reaching sensible conclusions are judges. Indeed the existing schemes demonstrate that this is not the case.
Further development will be noted here as they occur.
Meantime, the CJC report is available at http://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/
Family Justice Research
Big changes are in progress in the family justice system. Researchers, both within government and outside, are engaged in a number of research projects designed to examine how the family justice system is working. Indeed, a number of recommendations in the Family Justice Review related to the need to better share relevant research and good practice throughout the family justice system. The government accepted these recommendations and agreed to work with the Family Justice Board to help provide social research evidence to family justice professionals and wider stakeholders.
The Family Justice Research and Analysis team in Ministry of Justice Analytical Services are supporting this through their Family Justice Research Bulletin. The 5th volume of the Bulletin was published in January 2015. The 4th is also available on-line but numbers 1-3 are not. It is planned that further bulletins will be published roughly every six months.
Given the controversies that surround the operation of the family justice system, the undertaking and publication of high quality empirical research is obviously necessary to ensure that the system is working as intented.
One of the principal findings in the present edition is that public knowledge of what is happening to the family justice system is very sketchy; and that government hopes for more use of mediation are still thwarted by a lack of willingness of parties to participate in mediation. There also seems to be a lack of understanding that while legal aid for family matters has been cut back, it is still available for mediation.
Those interested in the research discussed in the bulletin can find full details at https://www.gov.uk/government/publications/family-justice-research-bulletin-5-january-2015
Bulletin 4 is at https://www.gov.uk/government/publications/family-justice-research-bulletin-4-mar-2014
Considering the case for a written constitution
In July 2014, the Political and Constitutional Reform Committee of the House of Commons launched an inquiry into the question of whether there is a need for a new Magna Carta. The inquiry follows from research undertaken at King’s College London which lays out three different models – including one fully fleshed out, complete constitution – and sets out some of the arguments for and against codifying the constitution in this way. The following summary is from the Committee’s website.
Arguments for
The King’s research points to the fact that the UK has a “sprawling mass” of common law, Acts of Parliament, and European treaty obligations, and a number of important but uncertain and unwritten “conventions” that govern administration, but the full picture is unclear and uncertain to electors in our democracy. They point to concerns about an “elective dictatorship”, and argue that it has “become too easy for governments to implement political and constitutional reforms to suit their own political convenience”. A written constitution would entrench requirements for popular and parliamentary consent. The present unwritten constitution is “an anachronism riddled with references to our ancient past, unsuited to the social and political democracy of the 21st century and future aspirations of its people. It fails to give primacy to the sovereignty of the people and discourages popular participation in the political process.”
Arguments against
Conversely, the case against a written constitution is that it is unnecessary, undesirable and un-British. The UK’s unwritten constitution is evolutionary and flexible in nature, enabling practical problems to be resolved as they arise and individual reforms made. The research points to concerns that a written constitution would create more litigation in the courts and politicise the judiciary, requiring them to pass judgement on the constitutionality of government legislation (which currently happens only in some contexts, such as compatibility with the Human Rights Act), when the final word on legal matters should lie with elected politicians in Parliament, not unelected judges. There is the simple argument that there are so many practical problems in preparing and enacting a written constitution, there is little point in even considering it. There is no real popular support or demand and, especially given the massive amount of time and destabilising effect such a reform would entail, it is a very low priority even for those who support the idea.
The Committee is currently taking evidence on the issue and will publish a report early in 2015.
For further detail go to http://www.parliament.uk/business/committees/committees-a-z/commons-select/political-and-constitutional-reform-committee/news/report-a-new-magna-carta/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 