Increasing diversity in the Judiciary
There has long been a desire to see more female and black and minority ethnic (BAME) people appointed to the judiciary. The present Lord Chief Justice Lord Thomas has promoted a number of initiatives designed to build on work already started by the Judicial Appointments Commission.
In April 2017, the Judicial Diversity Committee of the Judges’ Council published its latest report on progress together with – for the first time – an Action Plan for activities to be undertaken in 2017-2018.
The headline objectives of the Committee are set out in the report as follows:
In the next 12 months, we will –
-
continue our dialogue with BAME lawyers better to understand the barriers they face and identify what more the judiciary can do to support them;
-
work with the Law Society, Bar Council and CILEx to ensure that we are doing all we can to reach the broadest range of talent;
-
encourage more networking among the existing courts and tribunals judiciary;
-
run more workshops to support a greater number of candidates from under-represented groups to prepare for the selection process;
-
further develop our communications to potential candidates and those who have an interest in judicial diversity; and
-
improve the monitoring and evaluation of our initiatives.
While these aims may seem little bland, detailed reading of the report reveals that there is intended to be an extensive programme of workshops, mentoring, outreach and other initiative designed to encourage those from groups currently under-represented in the judiciary to think about law and a judicial career.
The report also provides a link to a number of judges talking about their experience in becoming a judge – designed to inspire others to contemplate following their path. See https://www.judiciary.gov.uk/about-the-judiciary/judges-career-paths/videos-judges-talk-about-their-judicial-careers/
The report is at https://www.judiciary.gov.uk/publications/judicial-diversity-committee-of-the-judges-council-report-on-progress-and-action-plan-2016-17/
Changing the small claims track
In November 2015, the Government announced that it planned to increase the small claims limit for personal injuries to £5000. Following a consultation on making reforms to soft tissue injury claims (often referred to as whiplash injury) the Government has now (March 2017) decided that while Road Traffic Accident claims for less than £5000 should stay in the small claims track, the small claims limit for other personal injury claims should become £2000. It plans that these new limits should be in effect by October 2018.
The Government is also intending to ban the settlement of whiplash claims unless medical evidence is provided of the alleged injury.
For details see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/593431/part-1-response-to-reforming-soft-tissue-injury-claims.pdf
What’s in a name? ‘Business and Property Courts’
From June 2017, ‘The Business and Property Courts’ will be the new name for England and Wales’ international dispute resolution jurisdictions and will act as a single umbrella for business specialist courts across England and Wales.
This is rather more than a simple re-branding. The main objective of the new arrangements is that it will enable appropriately qualified judges to be deployed more flexibly so that their expertise can be used in whatever forum it is needed.
Business and Property Courts brings under a single umbrella the following existing courts and lists:
- The Commercial Court (covering all its existing subject areas of shipping, sale of goods, insurance and reinsurance etc.)
- The Admiralty Court.
- The Mercantile Court.
- The Technology and Construction Court (covering all its traditional areas of major technology and construction cases).
- The Financial List (covering banking and financial markets).
- The Companies and Insolvency Court.
- The Patents Court.
- The Intellectual Property and Enterprise Court (the “IPEC”).
- The Competition List.
Other courts and lists will be added in future to include the existing business and property cases in the Chancery Division.
There will also be Business and Property Courts in Birmingham, Manchester, Leeds, Bristol and in Cardiff, with expansions to Newcastle and Liverpool likely in the future.
Although the framework will be new, existing practices and procedures will be retained, at least for the time being.
The details are in https://www.judiciary.gov.uk/announcements/business-and-property-courts-media-release/
Dealing with whiplash injuries: the Prisons and Courts Bill 2017
For some time the Government (under pressure from the Insurance industry) has been concerned about the numbers of claims and the aggregate amount of those claims for minor injuries arising from Road Traffic Accidents.
Between November 2016 and January 2017 the Government consulted on a package of measures to tackle the continuing high number and cost of whiplash claims and their impact on motor insurance premiums.
The Government’s concern was that the volume of road traffic accident related personal injury claims has remained static over the last three years and is over fifty per cent higher than 10 years ago (460,000 claims registered in 2005/06 28 compared with 770,000 in 2015/16) despite a reduction in the number of road traffic accidents reported to the police and improvements in vehicle safety, for example better head restraints.
It was noted that similar improvements in vehicle safety in other jurisdictions have led to a reduction in both the number of claims and motor insurance premiums.
The Government’s view is that the continuing high number of low value claims increases the cost of motor insurance premiums, paid by motorists in England and Wales. The Government has set out its view that the level of compensation paid to claimants for these claims is also out of proportion to the level of injury suffered. It has therefore decided to introduce measures to disincentivise minor, exaggerated and fraudulent claims.
Part 5 addresses this matter.
Clause 62 enables the Lord Chancellor to specify in regulations, in the form of a tariff, the damages that a court may award for pain, suffering and loss of amenity (“PSLA”) for relevant whiplash injuries sustained in road traffic accidents, in those cases where the duration of the injury does not exceed or is not expected to exceed two years. The tariff will provide for an ascending scale of fixed sum payments with the relevant tariff for a particular case identified by reference to the severity of the injury. Regulations may specify different sums for different descriptions of injury.
There will be power to deviate from the tariff in exceptional circumstances.
Clause 64 bans regulated persons (basically solicitors and barristers, legal executives and alternative business structures) from making or accepting a payment in settlement, or inviting, or offering to settle an RTA related whiplash claim without appropriate medical evidence.
Whether these changes will actually lead to any reduction in insurance costs is currently hard to determine, particularly given other recently announced changes that may result in a general increase in awards of damages for personal injury.
Transforming the Justice System: the Prisons and Courts Bill 2017
Enromous changes to the ways in which courts – both criminal and civil – and tribunals operate have already been foreshadowed in a number of policy documents published during 2016. Parts 2 to 4 of the Prisons and Courts Bill contain provisions that will give statutory authority to the changes that have been proposed.
The headline provisions may be set out as follows:
Part 2 creates new procedures in civil, family, tribunal and criminal matters.
It makes changes to court procedures in the Crown Court and magistrates’ courts to make processes and case management more efficient.
It allows some offenders charged with summary-only, non-imprisonable offences to be convicted and given standard penalties using a new online procedure.
It extends the use of live audio and video links, and ‘virtual’ hearings where no parties are present in the court room but attend by telephone or video conferencing facilities.
It makes provision which will apply across the civil, criminal and tribunal jurisdictions to ensure public participation in proceedings which are heard virtually (by the streaming of hearings), including the creation of new criminal offences to guard against abuse, for example by recording such stramed hearings.
It creates a new online procedure rules committee that will be able to create new online procedure rules in relation to the civil, tribunal and family jurisdictions.
It bans cross-examination of vulnerable witnesses – in particular those who have been the subject of domestic abuse – in certain family cases.
It confers the power to make procedure rules for employment tribunals and the Employment Appeal Tribunal on the Tribunal Procedure Committee and extends the membership of the Committee to include an employment law practitioner and judge or non-legal member.
Part 3 contains measures relating to the organisation and functions of courts and tribunals.
It extends the role of court and tribunal staff authorised to exercise judicial functions giving the relevant procedure rules committees the power to authorise functions in their respective jurisdictions.
It abolishes local justice areas, enabling magistrates to be appointed on a national basis, not just to a specific local justice area.
It replaces statutory declarations with statements of truth in certain traffic and air quality enforcement proceedings.
It makes reforms to the arrangements for the composition of employment tribunals and the Employment Appeal Tribunal.
It enables the High Court to make attachment of earnings orders for the recovery of money due under a judgment debt, as far as practicable, on the same basis as in the County Court.
Part 4 contains measures relating to the judiciary and the Judicial Appointments Commission.
It enables more flexible deployment of judges by enabling them to sit in different jurisdictions.
It brings the arrangements for the remuneration of judges and members of employment tribunals – currently undertaken by the Secretary of State for Employment – under the remit of the Lord Chancellor.
It rationlises the roles of judges in leadership positions who will support a reformed courts and tribunals system. (This includes provision to abolish the statutory post of Justice Clerk; this role will continue, but those qualified to be Clerks will also be able to undertake analogous work in other court/tribunal contexts.)
It gives the Judicial Appointments Commission the power to carry out more work (not directly related to judicials appointments) on a cost-recovery basis.
Source, Explanatory Notes to the Prisons and Courts Bill 2017, available at https://www.publications.parliament.uk/pa/bills/cbill/2016-2017/0145/en/17145en02.htm
Prison Reform: the Prison and Courts Bill 2017
The Prison and Courts Bill 2017 is a major piece of proposed legislation which aims to give effect to major reforms of both the prison service and the work of courts and tribunals.
The note deals with the first item – reform of the prison service.
The main policy objectives for prison reform were set out in the White Paper Prison Safety and Reform which was published in November 2016 and noted in this blog on 23 November 2016.
A good number of the proposed reforms do not actually require new legislation. They can be achieved by changes to the ways in which prisons are run, or by changes to the Prison Rules. But key changes do require legislation. These are dealt with in Part 1 of the new Bill.
The major changes may be set out as follows:
- The Bill will create a statutory purpose of prisons and updates the existing duties of the Secretary of State in relation to prisons (amending those created in the Prison Act 1952 (“the 1952 Act” ))
The Bill provides that “in giving effect to sentences or orders of imprisonment or detention imposed by courts, prisons must aim to—
(a) protect the public,
(b) reform and rehabilitate offenders,
(c) prepare prisoners for life outside prison, and
(d) maintain an environment that is safe and secure.”
- It also imposes a duty on the Secretary of State to make an Annual Report to Parliament on the work of the prison service, measured against the criteria set out in the Bill.
- It creates Her Majesty’s Inspectorate of Prisons, comprising Her Majesty’s Chief Inspector of Prisons (an existing statutory office) and staff who carry out functions on the Chief Inspector’s behalf, places additional reporting requirements on the Chief Inspector in relation to prisons, and provides powers of entry and access to information to facilitate the exercise of the Chief Inspector’s statutory inspection functions in relation to prisons.
- It establishes the Prisons and Probation Ombudsman (“PPO”) – currently a non-statutory appointment – as a statutory office, and provides the Secretary of State with the powers to add its remit.
- In relation to prison security, the Bill will enable public communication providers (“PCPs”) – for example, mobile phone network operators – to be authorised to interfere with wireless telegraphy to disrupt the use of unlawful mobile phones in custody.
- It also makes provision for the testing of prisoners for psychoactive substances (as defined in the Psychoactive Substances Act 2016) within prisons.
For further detail about this Bill and links to relevant material, go to https://www.gov.uk/government/news/prisons-and-courts-bill-what-it-means-for-you
Determining the limits of Executive Power: the Miller case
- The Sovereignty of Parliament means that Parliament ( not the Executive) has the power to make and unmake laws (indeed that was a key argument of the case for Brexit – that the UK had ceded too much law making power from the UK Parliament to the EU).
- The Separation of Powers means that there are checks and balances in our constitutional settlement, which implies that the judiciary must have the independence to reach decisions that the Government of the day may not like.
It can be argued that the Secretary of State for Justice and Lord Chancellor was too slow to acknowledge her obligations under section 3 of the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary – certainly in the immediate aftermath of the initial High Court decision in which considerable abuse was heaped upon the judges in the Press. Those who accused the judges of ‘being out of touch’ showed that they had no understanding of what the role of the judges is and should be in a parliamentary democracy.
Of course, those in power who find that they are prevented from doing what they would like may be expected to rail against those who have put barriers in their way – recent events in the USA bear witness to this proposition. But it should be remembered that without checks and balances, government leaders may well be tempted to take more and more power to themselves, with potentially extremely serious consequences for the people they seek to govern.
One further question that this case provokes is whether the current mix of constitutional principle – the precise limits of which are unclear – and law is the mot appropriate basis on which the Constitution of the UK should be founded. Is one implication of the Miller case that the time has now come for the UK to adopt a written constitution?
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 