Mandatory retirement age for judges
For a number of years, concern has grown about the ability of the courts’ system to recruit judges, particular to the most senior positions in the High Court. One obvious idea, which gained considerable traction in 2020, was that the mandatory retirement age (MRA) for judges, set some years ago at 70, should be increased.
In July 2020, the Government launched a consultation on whether this would be a good idea, and if so what any new age limit should be. The results of this consultation are now in and were published in March 2021.
The Government has now decided that it will increase the MRA to 75, thereby putting the MRA back to the level it was some 20 years ago when the present MRA was introduced.
It might have been thought that this change could be made relatively straightforwardly, but in fact statutory amendment is required. In the familiar phrase used on these occasions, this will happen ‘when parliamentary time allows’.
This is often seen as pushing the required change into some indeterminate future date. My hunch is that, in this context, there is a degree of urgency. I doubt whether there will be a separate Act of Parliament on the point. But it would not surprise me if a clause was inserted in an appropriate Bill going through Parliament in the near future.
The consultation and the Government’s response are available at https://www.gov.uk/government/consultations/consultation-on-judicial-mandatory-retirement-age
What do judges think about their job?
The UK Judicial Attitude Survey is a longitudinal survey conducted by Prof Cheryl Thomas of the University College London Judicial Institute. It covers all serving salaried judges in England & Wales, Scotland and Northern Ireland. It assesses judges’ views and experiences of their working lives over time. The results of the 3rd JAS were published in February 2021; earlier surveys were published in 2016 and 2014. With close to 100% participation over 6 years, this report provides a reliable assessment of judicial attitudes to their working lives and how they may have changed over this time period. The following note, which I have adapted from the Executive Summary, sets out the headline findings.
1 General feelings
Virtually all judges feel they provide an important service to society and have a strong personal attachment to being a member of the judiciary. They have a deep commitment to their job.
While judges feel most valued by their judicial colleagues at court, court staff, the legal profession and parties in cases, only two thirds feel valued by the public. Very few judges feel valued by the Government (9%) or the media (12%), and no judges feel greatly valued by the Government or media.
2 Working conditions
A majority of judges said that working conditions were worse than they were two years ago,
The courts judiciary feels working conditions have deteriorated more in the last two years than do judges in UK tribunals.
A majority of judges rated the following as Good or Excellent: security at court, quality of administrative support and physical quality of judges’ personal work space. One working condition rated Poor by a majority of judges was the morale of court and tribunal staff.
Over a third of judges continue to have concerns about their safety out of court.
Almost half of all judges said they would like more guidance on how to deal with internet and social media coverage of their work as a judge.
3. Salary and pensions
Most judges were paid more before they became a judge than they are paid in post. Two-thirds of all salaried judges feel that their pay and pension entitlement combined does not adequately reflect the work they have done and will do before retirement.
4. IT Resources and the New Digital Programme
A majority of judges said that the standard of IT equipment provided to them personally to use in 2020 had improved from 2014 and 2016, and that internet access and IT support in 2020 had also both improved from 2014 and 2016. But they felt that the standard of IT equipment used in courts and tribunals in 2020 had continued to decline since 2014 and 2016.
By 2020 virtually all salaried judges were on e-Judiciary (the internal web-based communications system), and most judges rated it as either Excellent to Good or Adequate.
By 2020 wifi was available in nearly all court/hearing rooms. Most judges rated its quality as Excellent/Good or Adequate.
5. Working during the Covid-19 emergency
During May-June 2020, a majority of judges said that the judiciary was managing change well during the Covid-19 emergency. The extent to which judges were working in their court or tribunal varied substantially by judicial post during the first lockdown in May-June 2020.
6 Future planning
A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years. In 2020, a new factor, “lack of respect for the judiciary by government”, was more significant in prompting judges to leave early than any other factor identified in 2016. There was also a substantial increase from 2016 in judges who said that stressful working conditions, increases in workload and further demands for out of hours work would make them more likely to leave the judiciary early.
A majority of judges said the same 3 factors would make them more likely to remain in the judiciary: higher remuneration, better administrative support and restoration of previous pension entitlements.
7. Recruitment
In 2020, almost two-thirds of all judges said they would encourage suitable people to apply to the judiciary. The main reasons for this were: the chance to contribute to justice being done , the challenge of the work, public service and intellectual satisfaction
The full report is available at https://www.judiciary.uk/announcements/judicial-attitudes-survey/
Responding to Covid-19: the work of tribunals
All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.
By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.
In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.
The outcome is truly impressive and shows how much can be done. Highly recommended read.
Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.
See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.
The latest edition of Tribunals
Equal Treatment Bench Book – 2021 revision
The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..
The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals. It is designed to enable effective communication and suggests steps which should increase participation by all parties.
This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.
There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.
There is new and expanded content on:
- The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
- Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
- Reducing jargon and legalese
- Assisting a litigant who has difficulty reading or writing
- Extended guidance in relation to litigants-in-person (ie people representing themselves)
- New entries in the disability glossary
- Confidence in the courts of minority ethnic communities
- Sensitivity if a witness is experiencing menopausal symptoms
Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.
The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/
Legal services regulation: turning point, or point of no return?
This is a really challenging analysis of how the legal profession should engage much more effectively with regulatory reform. Prof Mayson fears that if they do not, they have much to lose.
Earlier this month, I was invited to give the Wickwire Memorial Lecture at the Schulich School of Law at Dalhousie University in Canada. Frederick B. (Ted) Wickwire QC, a graduate of the School, was the President of the Nova Scotia Barristers’ Society. He died in office at the age of 52 in 1991.
Ted Wickwire was noted for his commitment to public service and to uncompromising professionalism. Each year, a lecture is held in his memory, focusing on an aspect of professional ethics.
It was a great honour to deliver this year’s Lecture, albeit with the constraints of virtual presence. The full text of the Lecture is available for download here.
The Lecture presented an opportunity for me to reflect on some of the underlying themes of my independent review of legal services regulation in England & Wales. In particular, I explored the emerging and increasingly uncomfortable tension between…
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Reforming the Parole Board: first steps
In October 2020 a ‘root and branch review’ of the Parole Board was announced.
One part of this review was a public consultation on the question of whether hearings of the Parole Board should be held in public. The outcome of this consultation has now been published (8 February 2021).
At present, the Parole Board Rules forbid Parole Board hearings from taking place in public. In responses to the Consultation, a minority of respondents argued that all hearings should be open. However, a majority thought this would be impracticable. Too many hearings involved the consideration of matters that it would not be in the public interest to disclose.
The Government has now concluded that there might be limited circumstances in which an open hearing might be appropriate. It has therefore decided that the Parole Board Rules should be amended to at least make it possible for a hearing to take place in public.
It is likely that the relevant rule amendment will be made in the coming months. Meanwhile, work continues on the other that formed part of the root and branch review. Further announcements are anticipated later in 2021.
I wrote a blog item on the review and its scope when it was announced in October 2020. See https://martinpartington.com/2020/10/31/root-and-branch-review-of-the-system-of-parole-and-the-work-of-the-parole-board/
The Report on the outcome of the Consultation on making hearings open to the public is at https://www.gov.uk/government/consultations/root-and-branch-review-of-the-parole-system
Repeal of the Fixed-term Parliaments Act: draft Bill published
The Fixed-term Parliaments Act 2011 was enacted as part of the agreement reached between the Conservative and Liberal Democrat Parties, when, in 2010, they formed the coalition government led by David Cameron. The idea of fixed-term parliaments had been around for many years. The problem has been that when a political party becomes a government, statutorily fixed-terms reduce the freedom Prime Ministers have long had to decide when they wanted to call an election would be constrained. Those in power have been reluctant to give up this freedom. (There is of course an overall limit – that an election much be called at least every 5 years.)
In 2011, the creation of the Coalition Government changed the political landscape. It was felt that, without setting a timetable for elections, there could be considerabe political instability if the majority partner in the coalition had the freedom to call an election when the opinion polls looked favourable, which could potentiallyhave left the minority in the lurch. The General Election 2015 was conducted within the framework laid down in the 2011 Act.
In 2017, the statutory framework was shown to be considerably less rigid than the title of the Act might have suggested. Mrs May, who had become Prime Minister in 2016, following the Brexit Referendum, thought good polling figures would give her a chance of establishing a more stable Government than that which followed the 2015 election. She was able to hold an election in 2017 because the Act provided that, where the House of Commons voted by a 2/3rd majority in favour of holding an early General Election. The political circumstances at the time enabled her to achieve that result.
In 2019, as the Brexit negotiations were drawing to a close, the Government – now led by Boris Johnson – wanted to find a way of ensuring that it could get a Brexit agreement through the Parliament. The Parliament was so divided on the issue that three attempts to get Parliamentary approval of a draft agreement failed. Mr Johnson thought that one way out of this difficulty would be to be to hold a general election which, if he won, would put the Brexit Agreement at the heart of Government policy. However, he could not do this because the statutory conditions for getting around the Fixed-term Parliaments Act timetable were not met. He did not have a 2/3rd majority in favour of holding a General Election (the route used by Mrs May) nor had he lost a vote of confidence which could also have triggered the calling of an early General Election.
Instead, he tried to prorogue Parliament – bringing one session to an end and starting a new session. But his purported use of the prerogative power to prorogue, which would have resulted in Parliament being totally shut down for 5 weeks, was ruled to be unlawful by the Supreme Court. (See R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.) He finally achieved his goal by getting Parliament to sidestep the Act through the enactment of the Early Parliamentary General Election Act 2019.
One item in the Conservative Party’s election manifesto for the 2019 General Election was that, if elected, a Conservative Government would repeal the Fixed-Term Parliaments Act. In December 2020 the Draft Fixed Term Parliaments Act (Repeal) Bill was published.
In fact, the Fixed Term Parliaments Act contained a built-in mechanism for its own review. Section 7, added during its parliamentary passage in 2011, provided that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established in November 2020, with 14 MPs and six members of the House of Lords. It is this Committee, chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin, that is now considering the draft Bill.
Two parliamentary committees had already reviewed the operation of the FTPA: the Lords Constitution Committee (2019), and the Commons Public Administration and Constitutional Affairs Committee (2020). Both raised important questions of principle about the whole idea of creating fixed-term parliaments. Was it right, in principle, that a Prime Minister should have the prerogative power be able to choose an election date? Why should general elections not be held within a timetable agreed by Parliament? The policy arguments in favour of fixed term parliaments as well made in an article by Robert Hazell from the Constitution Unit.
One feature of the draft Bill is that it includes provisions designed to prevent the courts from intervening in any decision taken by a Prime Minister to call an election. Two public lawyers, Professor Elliott and Professor Young, have given their views on the Bill including a consideration of whether the Bill’s attempt to restore the Executive’s prerogative power to determine the date for an election also mean that the potential for a challenge in the courts that an exercise of that power has been unreasonable can be eliminated.
Although the repeal of the Fixed Term Parliaments Act might at first sight seem like a rather narrow issue, it does raise important policy and legal issues which must be considered both while the current Bill is in draft form, and after any legislation has been enacted.
For further information, see the following articles:
By Robert Hazell at https://constitution-unit.com/2020/12/11/the-fixed-term-parliaments-act-should-it-be-amended-or-repealed/
By Professor Elliott at https://publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/
By Professor Young at https://ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-act-2011-repeal-bill-turning-back-the-clock/
Reform of the justice system: update on progress
Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.
Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.
Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/
This links to the principal speeches which are on YouTube.
Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history
Review of the Human Rights Act 1998: latest news
Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.
Evidence is sought on two specific issues:
The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.
The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.
The time for responding is short. Submissions have to be in by 7 March 2021.
The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.
Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents
Impact of Covid-19 on the criminal justice system: the view of the Criminal Justice Inspectorates
There are 4 Inspectorates which have statutory power to keep different parts of the criminal justice system under review: prosecution, police, prisons, and probation. Covid-19 has impacted all aspects of the system.
While the inspectorates have on many occasions worked with each other (on some occasions with other agencies outside the criminal justice system), it is rare for all 4 of the criminal justice inspectorates to come together to write a joint report on a single issue. The impact of Covid-19 on the criminal justice system has been the trigger for their latest report, Impact of the pandemic on the criminal justice system, which was published on 19 January 2021.
As the press release to the report makes clear, each of the Inspectorates has been examining the impact of Covid-19 on their individual parts of the system. They have already published or will soon be publishing their own individual resports on the impact of the virus.
But the Chief Inspectors are obviously extremely concerned about the enormous stresses being placed throughout the criminal justice system – not all deriving from the pandemic, but to which the pandemic has added new dimensions.
In their joint report, the Chief Inspectors draw together common issues which are discussed in each of their studies. They spell out how the Covid-19 pandemic has affected the work of the police, prosecutors, prisons, probation and youth offending teams. They point to difficulties and lengthy waits at all stages of the criminal justice process observing that delays “benefit no one and risk damage to many”.
While the Chief Inspectors were able to praise some positive initiatives that had been taken during the Covid-19 pandemic, including the acceleration of digital working, and the commitment of staff, other areas were of more concern. They included the lack of education provision in custody and in the community for young people and the highly restrictive regimes imposed on a majority of prisoners which have continued for many months without respite, impacting negatively on their physical, emotional and psychological wellbeing and also more generally on prospects for effective rehabilitation.
In the Chief Inspectors’ view, the greatest risk to criminal justice comes from the “unprecedented and very serious” backlogs in courts. The number of ongoing cases in Crown Courts was 44 per cent higher in December 2020 compared to February of the same year. Latest figures show more than 53,000 cases are waiting to come before Crown Courts. Some of these cases have been scheduled for 2022. Despite additional funding, the continuing impact of Covid-19 is likely cause further delays.
A particular source of frustration are cases which have been listed for trial but are then cancelled and postponed, all adding to the stress of victims as well as of the accused.
The Joint Report has been used as the basis for a meeting with the Justice Select Committee which is very concerned about the impact of Covid-19 on the Justice system and indeed reported on the issue in October 2020.
The evidence in this report clearly demonstrates the potential importance of the proposed Royal Commission on the Criminal Justice system. The delay in establishing this, which I have criticised before, is a real source of frustration for all those who want to see major improvements in the operation and effectiveness of the Criminal Justice system.
Details of the Joint Report can be found at https://www.justiceinspectorates.gov.uk/cjji/inspections/impact-of-the-pandemic-on-the-criminal-justice-system/
The evidence of the Chief Inspectors to the Justice Committee is at https://committees.parliament.uk/committee/102/justice-committee/news/138547/committee-gets-early-sight-of-criminal-justice-system-report/
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 