Martin Partington: Spotlight on the Justice System

Two recent announcements from the Ministry of Justice have been concerned with the interaction between young people and the law.

The first, called the ‘London Justice Programme’ is the latest initiative of the National Centre for Citizenship and the Law. Though based in Nottingham, the Centre has been seeking to develop national initiatives, of which the London Justice Programme is the latest development. At present there is not a lot of detail on what the programme involves, but it does provide opportunities for children at school to visit courts, hold mock trials there, and more generally become more aware of the legal system. The announcement at http://www.justice.gov.uk/news/features/feature170511a.htm provides a link to a video which gives the flavour of what is on offer.

There has also been an announcement about a new DVD – made by the Halton and Warrington Youth Offending Team (which comes under the Youth Justice Board) – which seeks to explain how restorative justice works and the demands that restorative justice measures make on those subject to them. The press announcement suggests that the DVD will be available from the YJB, but my researches do not currently indicate how it may be viewed. But it could be a useful source of information about restorative justice, challenging the perception that it is a ‘soft option’. For the press announcement, see http://www.justice.gov.uk/news/press-releases/yjb/yjb-news-release-20may2011a.htm

One of the trends in the practice of law noted in the book is the increased globalisation of the provision of legal services. Two recent Government announcements indicate just how important this work is, not just to our legal system but to the overall economy. They also indicate how competitive the legal services market is becoming in a globalised world. If the UK does not offer what global businesses want, business will go elsewhere.

The Government’s Action Plan ‘Promoting the UK’s Legal Services Sector’ was published in May 2011. It is available at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services-action-plan.pdf.
It sets out objectives which the Government will be seeking to support over the next few years, which will be incorporated in the upcoming MoJ Business Plan.
The second announcement is that a new ‘state of the art’ court building for dealing with commercial disputes – the Rolls Building – is scheduled to open in the Autumn 2011. A note on the progress of this initiative, for which the judiciary and commercial lawyers have long been pressing, was made at the end of May 2011. See http://www.justice.gov.uk/news/features/feature310511a.htm

For some time I have been meaning to draw the attention of readers to the amazing Democracy Live website run by the BBC.

It can be found at http://news.bbc.co.uk/democracylive/hi/default.stm.

The reporting of events in Parliament in the print media has significantly reduced over the last decade, so people who might be interested in knowing what is going on in Parliament don’t have an easy regular channel of information.

At the same time, Parliament’s functions have been developing – for example more use of Select Committees, backbench debates. And there have been other very important developments resulting from the creation of devolved governments in Scotland Wales and Northern Ireland. As if this was not enough, we cannot forget that our governance also embraces developments in Europe and the institutions of the EU.

The BBC website offers instant access to all these different Parliaments, including videos of speeches, and live debates as well as introductions to the background to many contemporary issues.

I know that there is concern that people in general do not take politics as seriously as perhaps they should. However, the work of our representatives in Parliament is at the heart of our system of representative democracy. One should not become cynical about the work of our representative institutions without actually knowing what they do.

Any argument that people will find it difficult to find out what is going on in our various Parliaments is totally undermined by this exceptionally informative and richly resourced website – for which I think the BBC should be unreservedly praised – this is public interest broadcasting of the highest quality and value.

There has been much controversy in recent months about the use of ‘super-injunctions’ to prevent the press and broadcasting media from reporting details of the private lives or confidential affairs of the rich and powerful. (I leave to one side the very practical question of the extent to which such super-injunctions can – because of Twitter and other social e-media – actually be effective in keeping the lid on confidential matters.)

Much press reporting of the issue might lead to one the view that the development of super-injunctions has been the result of the senior judiciary seeking to develop new legal principles, in the teeth of opposition in Parliament. (Of course there is nothing new in this as an idea – many of the fundamental principles of the law of England and Wales have been developed by the senior judiciary.)

The recent publication of the report on super-injunctions, written by the Master of the Rolls – who led a team of experts, including representatives of the press – seeks to offer a more reasoned analysis of what has been happening.

This shows, first, that it was Parliament that, by enacting the Human Rights Act 1998, created the conditions in which the judiciary was required to balance the competing rights to freedom of expression and privacy in individual cases.

The report also emphasises that there is an important distinction to be drawn – which recent reporting has often failed to do – between ‘super-injunctions’ and ‘anonymised injunctions’.

A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

Again, contrary to the impression given in many press reports,  since January 2010, only two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. In practice, super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

While there has been an increase in the number of cases which are anonymised, the law on anonymisation has been clarified in two recent Court of Appeal decisions. When anonymised orders are made, the court should wherever practicable provide a reasoned judgment for its decision.

The Committee produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Master of the Rolls has asked HMCTS to monitor these cases in future to see whether the changes to procedure proposed are having the desired effect.

The full report of the Master of the Rolls’ Committee can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf

So, the referendum on the Alternative Voting system went against those who were arguing for change. But as I have noted before, the  Parliamentary Voting System and Constituencies Act 2011 did more than make provision for the AV referendum. It also started a process of reducing the numbers of constituencies to the House of Commons from 650 to 600.

The detailed work on this is being undertaken by the Boundary Commissions – there are four Commissions, for England, Scotland, Wales and Northern Ireland.

In the case of England there will be 502 MPs rather than the current 533. The number of electors in each constituency must be no smaller than 72,810 and no larger than 80,473. In other words constituencies will become more equal in size than they are at present.

The Boundary Commission for England has stated: ‘Early indications are that the changes will have to be significant in order to reduce the number of constituencies by 31 and to ensure that they are of equal size. The majority of existing constituencies are likely to be affected.’

Provisional proposals for changes will be published in the autumn 2011. This will be followed by a period of consultation – with final recommendations due by the end of 2013.

You can follow developments at http://boundarycommissionforengland.independent.gov.uk/ which also links to the other boundary commission websites.

On 6 April 2011, the Family Proceedings Rules 2010 came into effect. As a result the rules the supporting Practice Directions set out a comprehensive framework for the family jurisdiction. For the first time, family proceedings courts (i.e. magistrates’ courts dealing with family matters) will operate under the same set of rules as the High Court and the county court.

Sir Nicholas Wall, President of the Family Division, has written: “This will serve to improve even further the relationship between the family proceedings court and the county court.

The new framework, modelled on the approach to the Civil Procedure Rules, will contribute to a common understanding and approach across all three tiers of family court, resulting in a more streamlined system to serve court users well.”

For further details go to http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/family/frontmatter/fpr_introduction.htm

April 1 2011 sees two important changes to the infrastructure of the English Legal System.
The merger of the administrative functions of Her Majesty’s Court Service and the Tribunals Service is completed today. The new organisation will be known as Her Majesty’s Courts and Tribunals Service (HMCTS). As I argue in the book, the great challenge will be to ensure that the distinctive ethos of the tribunals service – its procedural flexibility, its willingness to be more inquisitorial than courts, its ability to specialise – are not lost.
While this change was anticipated for some months, less publicised is the fact that, also from April 1 2011, the Judicial Studies Board no longer exists. This does not mean that judicial training is being abandoned. Far from it. The decision has been taken to merge the resources available for training judges in the courts with those available for training tribunal judges. These activities will now be taken forward by a new (virtual) Judicial College.