Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘chapter 6’ Category

Changing the Court and Tribunal estate – revised principles 2019

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Introduction

The court and tribunal estate has changed significantly since 2010. In making its changes, the Ministry of Justice applied a number of key principles: maintaining access to justice, delivering value for money, and ensuring operational efficiency. Savings achieved are being used to finance reform of the Courts and Tribunals service. The reform programme will change the ways court and tribunal services are delivered. In particular, improved technology will be designed to enable people to access justice in simpler, easier and swifter ways. Provision for hearings in courtrooms will remain essential for the delivery of justice, but fewer interactions with the court and tribunals system are likely to happen in a courtroom.

Nonetheless, court closures are controversial. Many involve much-loved local historic buildings. Many complain about the time needed to get to an alternative court/tribunal building if an existing venue is shut. In 2018, the Ministry of Justice launched a consultation on the principles in should adopt in relation to any further closures it might argue are necessary. In ‘Fit for the Future: Transforming the Court and Tribunal Estate’, published in May 2019, the Government set out its response to this consultation.

The Government has stated “We need to consider further court closures in the context of our modernisation approach, which will ensure that we provide fair and proportionate access to justice. We expect an increase in the number of people using remote access to the courts which will reduce the use of court and tribunal buildings in the future. We make a commitment that we will not act on that assumption by proposing to close courts unless we have sound evidence that the reforms are actually reducing the use of those buildings.”

Travel time

The issue that worried respondents most was how the time of travel to and from court was being assessed. The Ministry had proposed that the benchmark should be an ability to get there and return home within a day. Respondents argued this was too vague. The Ministry of Justice has responded: “ We have therefore enhanced our principles to make it clear that we expect journeys to court to be reasonable, and set out that for the overwhelming majority of users a reasonable journey would be one that allowed them to leave home no earlier than 7.30am, attend their hearing, and return home by 7.30pm the same day, and by public transport where necessary. We have also set out in much greater detail how we will measure this, what other factors we will consider – for example, the circumstances of users including those that are vulnerable, and the mitigations we can apply when users have difficulty attending court.”

Court/tribunal buildings design

While people were broadly positive about proposals regarding the design of court and tribunal buildings, there was a clear message that the security of those who use and work in our courts and tribunals needs to be paramount, along with ensuring suitable facilities for vulnerable users. The Court and Tribunal Design Guide (published at www.gov.uk/government/publications/court-and-tribunal-design-guide) provides a flexible room design which includes enhanced security standards and provides for the needs of vulnerable victims and witnesses.

Digital support officers

Digital Support Officers will support the introduction and longer-term support for digital services in local courts, as well as support which will assist users who do not wish or are unable to access online services. This development was broadly welcomed. There were concerns regarding the resourcing of these services. The Ministry has stated that it “will ensure that the right number of staff support these activities.”

Future closures

The Ministry expects that increased use of digital services will mean that fewer court and tribunals hearings will be needed in a traditional courtroom setting, and therefore fewer buildings will be needed. However, “we are committed to having clear evidence that these reductions are happening before we decide to close any further sites.”

Revised estates principles

“• Everyone who needs to access the court and tribunal estate should be able to do so. Journey times to court should be reasonable and take into account the different needs and circumstances of those using the courts. Mitigations are available for those who experience difficulty attending court.

  • We want to make sure that our buildings are in the best condition possible for those that use them and that they can be maintained at a reasonable cost to the taxpayer.
  • We will focus on the provision of multijurisdictional centres which are able to provide flexible access for the people who use our courts and tribunals. We will harness the power of technology to offer enhanced access and greater flexibility.”

Comment

Revised statements of principle will not prevent future controversy. Indeed, at the end of October 2019, the Justice Select Committee issued a very critical report on the whole court reform programme in general and the court closure programme in particular. There have been many critical comments in the professional legal press.

My own view is that the court/tribunal reform programme will, in time, be an improvement on the present system. However as all those who come into contact with courts and tribunals will have to adapt to the new system, there will be nervousness ahead of proposed changes that have not yet been implemented.

The item is adapted from https://www.gov.uk/government/consultations/fit-for-the-future-transforming-the-court-and-tribunal-estate which sets out both the original consultation paper and the Government’s response.

The Justice Committee critique is at https://publications.parliament.uk/pa/cm201920/cmselect/cmjust/190/19003.htm

A big day in the Supreme Court

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods|) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

On-line courts come a stage closer: Bill to establish new On-line Procedure Committee

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May 1st 2019 saw an important stage reached in the process of creating more on-line procedures to deal with family, civil justice and tribunals proceedings. The Courts and Tribunals (Online Procedure) Bill was introduced to House of Lords where it had its first reading.

The Bill, when enacted, will provide for the creation of a new judicially led procedure committee. It will develop special rules to ensure that on-line procedures are easy to use and accessible to the public.

This builds on new processes already introduced such as divorce online and money claims online.

A press announcement is at https://www.gov.uk/government/news/even-more-people-set-to-benefit-from-online-court-reform

 

 

 

Courts and Tribunals (Judiciary and Functions of Staff) Act 2018

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In June 2018, I noted the arrived of the Courts and Tribunals (Judiciary and Functions of Staff) Bill. It has now completed its Parliamentary process and became law at the end of 2018.

The aims of the legislation remain unchanged. The Act contains measures that are essential to enabling the judiciary to respond to the changing demands of a reformed courts and tribunals system and delivering better services to users.

The Act also introduces much greater flexibility to the deployment of judges. It  also frees up judges’ time to focus on more complex matters by allowing suitably qualified and experienced court and tribunal staff to be authorised to handle uncontroversial, straightforward matters under judicial supervision.

The measures in the Act will also increase the efficiency of the courts and tribunals.

For further details see https://www.gov.uk/government/publications/courts-and-tribunals-judiciary-and-functions-of-staff-bill

 

 

Written by lwtmp

March 16, 2019 at 10:28 am

Transformation: Courts and Tribunals, 2022: HMCTS and MoJ respond to the Public Accounts Committee

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I noted in 2018 the critical report from the National Audit Office (see this blog June 2018) and the subsequent report (which I labelled ‘brutal’) from the Public Accounts Committee (see this blog October 2018) on the courts and tribunals transformation programme.

Well, now the Ministry of Justice and HM Courts and Tribunals Service have come back with a series of replies, setting out the progress that has been made with the transformation programme, and setting out targets for the following 6 months.

Between November 2018 and February 2019, MoJ and HMCTS published no fewer than 6 reports, each one responding individually to the six principal criticisms made by the Public Accounts Committee.

The most fundamental question is whether the timeframe for the delivery of the transformation programme is being adhered to. The report on Recommendation 1 – which deals with this question – acknowledges that parts of the programme have not yet been started while listing a substantial body of completed work.

Other responses deal with:

  • the impact of the transformation programme on users;
  • engagement with stakeholders;
  • the financial implications of the transformation programme on the wider justice system;
  • evaluating the impact of the reform programme on access to justice and the fairness of the justice system; and
  • balancing the portfolio of change projects to ensure that there is some flexibility and an ability to respond to financial pressures.

Interestingly, less than a month after the publication of the latest of these reports a Press Release in March stated that at least some aspects of the Transformation programme will not be completed until 2023. (See https://www.lawgazette.co.uk/news/breaking-hmcts-delays-1bn-courts-reform-by-a-year/5069501.article)

There is a lot of detail in the reports. They can be found by going to https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals

This links to each of the six individual responses.

In January 2019, the Justice Select Committee announced that it too would be conducting an inquiry into the Courts and Tribunals Reform programme. See https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/

It is right that such a major reform programme should be carefully scrutinised by MPs. They can help to ensure that the transformation, that I think is needed, is delivered.

 

 

 

 

Reforming the parole board: new announcements

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In April 2018 I noted here the fact that the Government was planning to take steps to reform the ways in which the Parole Board goes about its work. In March 2019, the Government has published the conclusions it has reached so far on this work. The principal features of the new approach are:

  1. The Government will change the Parole Board Rules to create a new reconsideration mechanism so if there is a seriously flawed decision it can be looked at again without the need for judicial review. This is the most important change in the current round of reform proposals.
  2. The Parole Board will publish new Standard Practice documents which will make more transparent the considerations and approaches to decision making that should normally be followed
  3. Improved engagement and communication with victims will be delivered through changes to the Victim Contact Scheme, the commitments in the Victims Strategy published on 10 September 2018 (see this blog November 29 2018) and a revised Victims’ Code following consultation in 2019.
  4. The Government will replace the current Prison Service Instruction on the parole process with a new Policy Framework which will make improvements to timeliness and efficiency as well as ensure the published instructions are up-to-date and support the other reforms.
  5. A new Operational Protocol between the Parole Board and HM Prisons and Probation Service will be published which will clarify and make more open everyone’s roles and responsibilities; support better joint working; and reduce duplication.
  6. Provision will be made in the Rules for prisoners with mental health needs and learning difficulties, who lack mental capacity, to ensure a fair hearing, including the appointment of suitable representation if necessary.
  7. A Rules Committee will be created to oversee future Rule changes, ensuring the rules keep pace with wider developments, with input from key stakeholders including victim representatives.
  8. A further Review of the Parole Board will examine the future constitution of the Parole Board and whether more fundamental reform requiring primary legislation is needed.

Further information about these proposed reforms can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775844/review-of-the-pb-rules-and-rm.pdf

A separate paper sets out in more detail how the proposed reconsideration mechanism will work. This is potentially an important change; its operation will need to be kept under review to ensure that it is an effective means of seeking reconsideration without the need for judicial review proceedings.

For further detail see https://www.gov.uk/government/consultations/reconsideration-of-parole-board-decisions-creating-a-new-and-open-system

 

 

Written by lwtmp

March 6, 2019 at 1:33 pm

The Modernisation of Tribunals – report from the Senior President of Tribunals

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When he published his Annual Report in 2018, the Senior President of Tribunals promised that there would be a second report, devoted to the issue of the reform of the tribunal system, in the context of the overall courts and tribunals modernization programme.

This second report has now been published. It reports on the outcome of a consultation and a series of engagement meetings which took place around the country under the general heading of Judicial Ways of Working.

It is not an easy report to summarise, but the headline conclusions are:

  1. Judges will shape and lead reform in each of our jurisdictions to ensure that the rule of law is safeguarded and, in particular, that effective access to justice is improved.
  2. New process or the use of digital tools should never lead to less fair procedures or less effective access to justice.
  3. Judicial decision making should be no less open to public scrutiny than it is at present, that is, the careful balance we strike between open justice and the privacy of an individual’s personal information is maintained.
  4. We must ensure that systems are designed to meet the needs of the people who use them, for example how digital access is facilitated for the digitally excluded (a new service known as Assisted Digital). Different types of assistance are currently being tested.
  5. Tribunals led the way in the use of Case Officers before the modernisation programme began. A new generation of tribunals case workers has been trialled as part of the modernisation programme and a career structure has been developed for all ‘Authorised Officers’. Different models with differing levels of responsibility will work in each Tribunal. How and where authorised officers are used will be determined by each jurisdiction but subject to the overall protection of permissions contained in Rules and Practice Directions.
  6. Implementing change is a specialist task. There will be identified HMCTS managers and teams who are responsible for delivering successfully piloted projects in each jurisdiction. The Delivery of Change will depend on the agreement of an ‘end-to- end’ model for each jurisdiction.
  7. There is work to be done to agree the important features of the hardware and software that will be used to support us.
  8. Necessary funding for Digital Training has been obtained. Its provisions will be overseen by the Judicial College and judge trainers. The training will be available to judges and non-legal members and will include opportunities for authorised officers as well.
  9. Where video hearings are to be enhanced and fully video hearings tested, great care is being taken to make sure the system is designed with the needs of judges and users front and centre.
  10. The work towards a Tribunals Estates Strategy which considers each building in the Tribunals estate is an immense task but is nearly complete. The strategy and the principles which will determine how the leasehold estate is managed and how we plan for the future is expected to be agreed by February 2019. There is acknowledgement that some judges and members are currently in unsuitable accommodation; there is acceptance that provision for the Tribunals should in no way be inferior to that provided for the courts and a real desire to ensure that modernisation secures improvements to the working environment.

This is adapted from the summary in Annex E of the report, which is available at https://www.judiciary.uk/wp-content/uploads/2019/01/6.5332_JO_Modernisation-of-Tribunals-2018-Report_v3.pdf

Judicial Ways of Working

Written by lwtmp

February 28, 2019 at 2:56 pm