Posts Tagged ‘reform of the justice system’
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
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
Transformation of the Justice System: reports on the progress of the HMCTS reform programme
It is a some time since I wrote about the great Transformation of the Justice system programme that was launched in 2016. It is quite a challenge to follow the progress of the reform programme. I thought it would be useful to bring together the principal documents which relate to the project which will fundamentally reshape the justice system for years to come.
- The Transformation of the Justice system project was formally launched in a joint statement issued by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals in September 2016.
See https://www.gov.uk/government/publications/transforming-our-justice-system-joint-statement
Initially planned for completion in 2021, the end date is currently set back to December 2023, though many parts of the programme have been completed. The principal features the programme can be seen in the following diagram.
- The programme was the subject of an initial review by the National Audit Office, published in May 2018. This is available at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/(See this blog 7 June 2018)
- This was followed by a report from the Public Accounts Committee published in July 2018 which is available at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm.
The PAC report resulted in six separate responses from the Government, details of which are at https://www.gov.uk/government/news/response-to-public-accounts-committee-transforming-courts-and-tribunals. (see this blog 10 March 2019)
- One issue, raised in both the above reports, related to the adequacy of HMCTS engagement with stakeholders. HMCTS responded by commissioning an independent audit of stakeholder engagement which was published in October 2019. See https://www.gov.uk/government/publications/hmcts-stakeholder-perception-audit-report-2019. A further progress report on stakeholder engagement was published in January 2020. (It can be found by googling HMCTS Engaging with our external stakeholders 2020 which leads to a Report published in Jan 2020.)
- A second report from the National Audit Office was published in September 2019. This is available at https://www.nao.org.uk/report/transforming-courts-and-tribunals-a-progress-update/
This has not to date led to a further report from the Public Accounts Committee.
- At the end of October 2019, the Justice Select Committee published its own report on the Courts and Tribunals Reform Programme. This can be found at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/court-and-tribunals-reform-inquiry-17-19/
HMCTS issued a response to this report in the form of a Press Release, which is available at https://www.gov.uk/government/news/hmcts-response-to-justice-select-committee-report-on-court-and-tribunal-reforms
- HMCTS provides updates about progress with the reform project. Initially these appeared in six-monthly updating reports which were published in 2018 and 2019. The last of this series appeared in Summer 2019. See https://www.gov.uk/guidance/hmcts-reform-programme-reform-update. Current updates are contained within the monthly blog Inside HMCTS, which is available at https://insidehmcts.blog.gov.uk/
- In each year of the project, HMCTS has run a meeting, which presents an account of progress with the programme to stakeholders. The most recent of these events was held in November 2019. The presentation slides used at this meeting are available online and present very useful picture of progress up to that date. They can be accessed from https://www.gov.uk/government/news/hmcts-hosts-3rd-annual-public-user-event. Other engagement events, both past and planned are listed at https://www.gov.uk/guidance/hmcts-reform-events-programme.
I hope that this blog entry, listing key documents and reports relating to the transformation project will be useful for those wanting to get an overview of the project and its progress. I will endeavour to keep readers up with more specific developments as they occur. For the moment, many of these have become intertwined with arrangements that have been made to adjust the work of the courts and tribunals to the effects of the Covid 19 pandemic.
Covid 19 and the English Legal System (2) Virtual hearings and on-line courts
Almost exactly a year ago (May 2 2019) I noted in this blog the introduction of the Courts and Tribunals (Online Procedure) Bill. This was to be an important staging post in the process of reforming Courts and Tribunals, to enable more hearings and other proceedings to be on-line. The Bill would have provided for the creation of a new Procedure Committee to deal with how such hearings and other proceedings should take place. The Bill fell when the General Election held 2019 was announced.
Nevertheless, far from derailing the Government’s reform plans, the Covid 19 pandemic has done more to speed up progress towards the development of new online courts than might have been imagined. Although the Online Procedure Bill has not, to date, been introduced, the Coronavirus Act 2020 has effectively stepped in. For as long as the Act is in force (the legislation is time-limited to 2 years), it provides for the transformation of ways in which courts and tribunals are to be run. It does this by disapplying or amending existing legislation regulating a large number of aspects of public policy.
Sections 53 to 57 and Schedules 23 – 27 of the Coronavirus Act deal with the use of video and audio technology in Courts and Tribunals. I do not propose to go through these provisions in detail. But it worth setting out the policy objectives of these provisions. I have adapted these from the Explanatory Notes to the Act:
1. [Although] the courts currently have various statutory and inherent powers which enable them to make use of technology, the Act amends existing legislation so as to enable the use of technology either in video/audio-enabled hearings in which one or more participants appear before the court using a live video or audio link, or by a wholly video/audio hearing where there is no physical courtroom and all participants take part in the hearing using telephone or video conferencing facilities.
2. Provisions are also made within the Act to enable the public to see and hear proceedings which are held fully by video link or fully by audio link. This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.
3. There are existing restrictions on photography and sound recording in physical courts. (Section 41 of the Criminal Justice Act 1925 provides prohibitions on photography in courts. The Contempt of Court Act 1981 prohibits the making of unauthorised sound recordings.) These offences were created to protect participants in court proceedings, but long before the concept of a virtual hearing was thought possible. Provisions in the Act therefore create similar offences to protect participants and prohibit recording or transmitting live-streamed proceedings, photography and sound recordings in the context of virtual hearings and live-links.
4. The Act provides for restrictions to be imposed on individuals who are potentially infectious and that the decision to impose such restrictions can be appealed to magistrates’ court. The Act therefore ensures that such hearings should be conducted fully by video link, unless the court directs otherwise, given the person appealing the decision would be subject to restrictions, and there is the risk of passing on the infection if they were to travel to court.
Although these specific provisions will, I hope, have a limited shelf life, they are having the effect that, like it or not, judges, legal practitioners and other court and tribunal users are being forced to use these new technologies.
There have been sporadic reports in the professional legal press and elsewhere that, actually, many really like the new ways of doing business and are surprised how well they work. Others, particularly where the technology does not work as it should, are less enthusiastic.
But the champions of reform among the judiciary and policymakers clearly see these currently emergency procedures as a really valuable practical testbed and the precursor to significantly more substantial reform in the years ahead.
The Act can be found at http://www.legislation.gov.uk/ukpga/2020/7/contents/enacted
A useful report on these matters from Susan Acland-Hood, who is leading the Courts and Tribunals reform programme, was published on 30 April 2020 and is available at https://insidehmcts.blog.gov.uk/2020/04/30/using-remote-hearings-to-maintain-justice-during-the-coronavirus-pandemic/
See international developments at the website: https://remotecourts.org/
Changing the Court and Tribunal estate – revised principles 2019
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
Keeping the ‘Transformation: Courts and Tribunals 2022’ programme under review
In June 2018, I noted here the critical report from the National Audit Office – published in May 2018 – on the Transformation: Courts and Tribunals Programme 2022.
The NAO report was reviewed by the Public Accounts Committee , which took evidence from the Ministry of Justice and HM Courts and Tribunals Service. In July 2018, it published a pretty brutal report which listed a number of concerns about the programme and set out a number of recommendations on the way forward.
The PAC found, in summary:
- It had little confidence that HMCTS can successfully deliver this hugely ambitious programme to bring the court system into the modern age.
- It found that HMCTS had failed to articulate clearly what the transformed justice system would look like, which limits stakeholders’ ability to plan for, and influence the changes.
- Despite revising the timescale, it thought that HMCTS’s imperative to deliver at such a fast pace risked not allowing time for meaningful consultation or evaluation and could lead to unintended consequences.
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The Committee thought HMCTS had not adequately considered how the reforms will impact access to, and the fairness of, the justice system for the people using it, many of whom are vulnerable.
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It found that, one third of the way through the programme, the Ministry of Justice still did not understand the financial implications of its planned changes on the wider justice system.
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The Committee remained concerned that the Ministry of Justice was taking on significant amount of change, without a clear sense of its priorities, at a time when it is facing severe financial and demand pressures.
In relation to findings 1, 2 and 4 above, the Committee wanted HMCTS to start producing update reported on a regular 6 month basis, starting in January 2019.
In relation to finding 3, it wanted, by November 2018, HMCTS to publish plans on how and when it will engage with stakeholders and be clear about how it will act on the feedback received and adjust plans if necessary.
In relation to findings 5 and 6 it recommended regular updates from the Ministry of Justice, again starting in January 2019.
The Government has just announced that it has agreed to all the PACs recommendations.
As I said in my original comment on the report from the National Audit Office, my personal view is that it is essential that the justice system is modernised. Doing nothing is not an option. While stern criticism may well help to ensure that the Director of the reform programme keeps her eye on the ball, I also think that it is important to support those working on the reform programme. Such harsh criticism could be extremely undermining of staff confidence and could paradoxically increase the chances of some of the negative outcomes listed by the Committee coming to fruition.
I will keep readers of the blog posted as and when new material is published.
The NAO report is at https://www.nao.org.uk/report/early-progress-in-transforming-courts-and-tribunals/
The PAC report is at https://publications.parliament.uk/pa/cm201719/cmselect/cmpubacc/976/97602.htm
The Government’s response is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/746797/CCS001_CCS1018676736-001_Treasury_Minutes_Gov_Resp_43-58_Cm9702_Web_Accessible.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 