Weekly Notes: 9 July 2018

Advance copy for the ICLR blog

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Architects’ impression: C.F. Møller

Courts

The Ministry of Justice announced last week that a new courts complex specifically designed to tackle cyber crime, fraud, and economic crime would be opened on the site of Fleetbank House, located between Fleet Street and the River Thames, replacing the building where currently the Employment Appeal Tribunal sits and the Office of Fair Trading is based. It will also replace an ageing civil court, the Mayor’s and City of London County Court, and City of London Magistrates’ Court. Included in the court complex will be a new City of London police station. The EAT will be moved to the Rolls Building, joining the newly designated Business and Property Court.

The MOJ announcement described the proposed 18-court complex as a ‘flagship’ so no doubt it will make waves and leave a trail of efficient modern and fully digitised justice in its wake. But it may not be plain sailing. How steady is the hand on its financial tiller? And who will tender for the job? The complex will cost oodles of cash, but much of this will apparently come from the City of London Corporation. The building has been designed by architects C.F. Møller. It is expected to be completed by 2025.

The new court was one of the topics of the speech by the Lord Chief Justice, Lord Burnett of Maldon, at a Dinner for Her Majesty’s Judges 2018 at the Mansion House in the City of London on 4 July. He said it ‘sits comfortably with the long overdue and much wider courts and tribunals modernisation programme’. That may be his view, cheerleading from the front, or top. But it may not be the view of the many court users who are still struggling with poorly maintained buildings, obstructive court security, badly organised listings and patchy court wifi, as any casual viewer of the legal twittersphere must be aware. As the Chief admitted in his speech, despite the attainment of certain development milestones, ‘those visible successes have not yet spread to all parts of the justice system’.

If things are difficult for users of existing courts, spare a thought for those whose local courts have been sold off or leases cancelled in the drive towards efficiency and modernisation. The inhabitants of the Peak District market town of Buxton, for example, who are the subject of a recent piece by Patrick Maguire in the New Statesman, Crumbling Britain: The quiet decline of England courts. Here he recounts how, following the closure of the local courts, its business has been notionally split between Stockport, 18 miles away in Greater Manchester, or Chesterfield, 25 miles to the east. In practice, however, case are now almost all heard at the latter and sometimes at Derby, 35 miles away. With cuts to local transport, this redistribution is especially arduous for those caught up in the justice system. For those who can barely afford the bus fare to travel thirty miles to their ‘local’ court, the news of the snazzily designed cutting edge multi-jurisdiction court complex conveniently positioned within the richest Square Mile in England is probably cold comfort.

A bit of good news for some court users, though: the MOJ has had a bit of a rethink, possibly nudged by some recent judicial review claims, on the question of court fees. Lucy Frazer QC MP, a justice minister with responsibility for the courts, announced in a written statement to parliament that the government would introduce legislation* to reduce court fees for certain proceedings in the civil courts and the Court of Protection in England and Wales. She said:

‘The reduction to these fees follows a thorough and detailed review undertaken by officials in the Ministry of Justice into the cost of these proceedings. Our review has identified a number of cases where the fees charged were above full cost recovery levels. We are therefore taking action to reduce those fees. We will also be establishing a refund scheme to reimburse people the amounts they have been over-charged.’

She also promised that her department would keep court fees under review in the future to ensure that efficiency savings enabled by the ongoing court modernisation programme would be passed on to court users.

See also:

Gazette, We got it wrong: MoJ admits overcharging for court fees

Court of Protection Handbook: CoP Application and appeal fees reduced (a bit)

Legislation: The Court of Protection, Civil Proceedings and Magistrates’ Courts Fees (Amendment) Order 2018

Judiciary

In his speech to the Dinner for Her Majesty’s Judges 2018, the Lord Chief Justice also raised the issue of recruitment to the judiciary, which has been a problem now for some years. He issued a stark warning (at paras 13–14), which must have been intended for the ears of the government, in the person of the Lord Chancellor, also at the dinner:

‘It is well-known that there has been difficulty in attracting applicants with the right skills to fill a variety of vacancies in recent years. But let me dwell for a moment on the High Court. There is a statutory complement of 108 High Court judges. Historically there was no difficulty in filling that complement. That is no longer so. For the fourth year in a row the Judicial Appointments Commission, despite its best and impressive endeavours, has been unable to recommend for appointment the number of judges needed to maintain the statutory complement. We currently operate the High Court with only 93 judges, so 15 down. The recent High Court competition, the product of which will take up appointment from the Autumn, is expected to yield a small number of candidates of the highest quality — and I might add a socially diverse group with as many women as men, and including solicitors and serving judges as well as practising barristers. But we needed many more to make good the shortfall of recent years. That shortfall followed and largely resulted from the steady erosion of judicial terms and conditions. We face a real prospect next year of having to operate with about 80 % of the complement.

That is unsustainable. There is an urgent need to act now if we are to avoid serious and lasting damage to the High Court and to the international position of the jurisdiction of England and Wales, with knock on consequences for the professional services industry and the City.’

Given that the High Court bench is operating at less than full strength, but dealing with a full complement of cases, perhaps now would be the time to think of awarding the judges a bonus derived from the consequential saving in judiciary salaries and pensions. That might boost recruitment a bit. The same principle should, of course, be applied to practitioners doing public law cases where the workload exceeds the number of lawyers who should ideally be available to deal with it.

Legal professions

At the Lord Mayor’s Dinner for HM Judges July 2018 mentioned above, the Lord Chancellor and Secretary of State for Justice, David Gauke announced the establishment of a LawTech Delivery Panel as part of his drive to boost this ‘burgeoning sector’. The panel will be chaired by The Law Society’s incoming President, Christina Blacklaws, and populated by ‘industry professionals to support and accelerate the development and adoption of innovative new legal technologies’. This, said the Lord Chancellor,

‘will help ensure English Law and the UK remain attractive and a primary choice for international businesses.

Furthermore, a £20 million fund, announced in April, will also help develop the next generation of services for accountancy, insurance and legal industries including technologies such as artificial intelligence and data analytics.’

In an interesting last sentence, the announcement reveals that

‘The Home Office has also announced the launch of start-up visas for entrepreneurs looking to come to the UK.’

Are we beginning to see the tide of hostility in immigration policy now beginning to ebb in the wake of the NHS recruitment crisis and the Kafkaesque mistreatment of the Windrush Generation? If so, not before time. But doesn’t it somewhat belie the earlier assertion in the announcement that

‘The UK is the ideal place for LawTech to thrive — with its progressive regulation, world-leading professionals and financial services sector and huge tech talent pool.’ (Emphasis added)

If the talent pool is so massive, why the need for start-up visas? And what exactly is ‘progressive regulation’? (Could it by any small chance mean regressive?)

Brexit

The government issued a slightly Munich-like statement (“Brexit in our time”) after a long awayday meetings of cabinet bigwigs at Chequers, the Prime Minister’s official country retreat. The statement set out the UK’s position on the future relationship of the UK with the EU. There was a lot of talk of ‘evolution’, with acceptance of a ‘common rulebook’ and a denial that the ECJ would exercise any final decisive jurisdiction over any dispute involving the UK (though it is not entirely clear who would).

The document was variously described as a fudge and a betrayal, or as a triumph of compromise, but it was also pointed out that this was only the fruit of negotiation within the British cabinet — nothing that would bind or could expected to be accepted by the EU negotiators on the other side. However it is at least evidence that the Prime Minister Theresa May is sufficiently in charge to be able to secure a common agreed document from her warring and unruly cabinet. After all, she’s given the rebels a chance to come up with something better, and enough rope if they didn’t. Can we now expect to see a revised view of her long-game prowess under headings such as ‘check-mate at Chequers’?

Useful early analysis from Ian Dunt on Politics.co.uk: We are now on cruise control for soft Brexit

UPDATE:

I spoke too soon. On the check-mate front, we now have at least a knight down on the Brexit side of the board, plus a pawn that got in the way: the lead negotiator David Davis, Secretary of State for the Department for Exiting the European Union (DExEU) resigned shortly before midnight and today has been replaced by Dominic Raab. Junior Brexit minister Steve Baker has also resigned. For those who have access to the FT, there is an annotated version of Davis’s resignation letter and May’s reply (accepting his resignation).

There is now fevered speculation about a move to displace May herself and install a more Brexit-minded leader, though it’s hard to see how anyone could actually get a better deal than the one outlined above, without either staying in the EU or rejoining EFTA instead. Meanwhile, as NBC News points out,

‘The fiasco comes four days before Trump arrives in London where he is also expected to meet Queen Elizabeth II before heading to his golf resort in Scotland and then to Helsinki where he will meet Russian President Vladimir Putin.

UPDATE 2 (Later the same day… )

Now Boris Johnson has also resigned. The pound is on the slide and all journalistic leave has been cancelled. Not everyone’s unhappy:

Dates and Deadlines

Private Guest Night at Middle Temple on Thursday 19 July will be preceded by a Pre-Dinner Lecture by Lord Justice David Bean,
Chairman of the Law Commission on the topic of The Law Commission

Those wishing to attend the lecture only may do so for free but the Inn kindly ask they register their interest via members@middletemple.org.uk first. The lecture will be considered 30 minutes of CPD under the heading “Legal Knowledge”. Doors Open at 17:35 and close for the lecture at 18:05. Click here to Book tickets.

As we reported in last week’s edition of Weekly Notes, Sir David Bean is to be replaced at the end of his term as chair by Mr Justice Green.

Tweet of the Week:

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

For more legal news and commentary, read our blog.

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The ICLR publishes The Law Reports, The Weekly Law Reports and other specialist titles. Set up by members of the judiciary and legal profession in 1865.

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