Weekly Notes: legal news from ICLR — 13 May 2019

This week’s roundup of legal news and commentary includes court reform, family justice and the availability of the judiciary as a commercial service. Plus something uplifting from Reading County Court.

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Politics

Ministry of Musical Chairs

Robert Buckland QC has inherited Rory Stewart’s office, but what we’re not quite so clear about is whether he has also been assigned, like the residue of a lease, the obligation to resign if prison violence does not improve, pursuant to a rash promise made by Stewart last August.

Meanwhile Lucy Frazer QC, who was a junior minister at the MOJ with special responsibility for being optimistic about the courts and tribunals reform programme, has now taken Buckland’s old job as Solicitor General. Her departure means that all the ministers are now men (‘menisters’). But there’s some educational diversity, since only three of them went to Oxford university (David Gauke, Paul Maynard and Ed Argar), while Buckland was at Durham and Lord Keene QC at Edinburgh.

Courts

Better late than never

The long-awaited MOJ response to its own consultation includes a breakdown of the individual responses of those who answered the questions in the consultation, which are summarised under each of the questions asked, following which the MOJ then sets out its own response. As the Lord Chancellor David Gauke points out in his introduction, “access to justice and travel time to and from court … generated the largest response” and

We have therefore made a strong commitment within our estates principles that, in considering any future proposals for rationalising the estate, the ability to access justice by means of travelling to a physical court or tribunal building will continue to be expressly taken into account in assessing and making the case for estate change.

Nonetheless, it is made clear that the aim of the Reform programme is to need, and have, fewer physical courts:

as people use remote access to the courts through digital services, video hearings and online applications, we expect that we will need less physical courtroom space as a result.

The fact that a major long-term aim of the Reform programme is to wean people off using traditional court hearings to resolve disputes where they can be more cheaply, efficiently, and effectively resolved in some other forum, eg by an online court, or by partly or wholly videolinked hearings, is not something the MOJ and HMCTS have ever been coy about. It’s been trumpeted from the very start. (To put it another way, it’s been drilled into the wall like the hole for which, apparently, people actually buy a power tool. Not for the look of it or the technical specs.)

So it’s a little strange to read in the Times report of the consultation response (“Ministers admit push to expand use of online courts”) that “ Litigants will increasingly be directed to online courts as part of government policy, justice ministry officials conceded for the first time on Friday” and that “David Gauke, the lord chancellor, acknowledged that plans to ‘allow people to start to settle disputes away from the courtroom’ form part of the Ministry of Justice’s court modernisation programme.”

As the article goes on to explain, a number of people have criticised the way the reforms have been handled, but if there’s a hidden agenda it is certainly not the fact that there’s going to be an online court and the government wants people to use it. The problems, as Gauke appears to concede, have mainly been with the way the process has been carried out, particularly in the closure of courts before an accessible alternative has been put in place, either in the form of another shiny new court centre (with transport links to match) or a suitable online equivalent, or even (most basically) with video-links that work securely and reliably (as one never stops hearing about them not doing). Moreover, while there may have been some lack of digital support for those not having easy access to computer facilities or lacking skills to use them, but this is as nothing to the lack of availability of legal advice and representation thanks to cuts in legal aid funding. All these problems must be seen in context.

If there is a secret agenda, it is that the whole process of Reform has been promoted with the fundamental aim of making justice cheaper, rather than better. But this is hardly a secret and in any event is arguable, since justice is far from perfect or efficient in the current or traditional way of doing it; moreover cost savings might be expected to be a bonus of any modernisation or efficiency programme.

Court design guide

provides the standards for refurbishment and redevelopment of existing and future court and tribunal buildings and facilities within our estate. It enables optimum use of facilities to improve user experience. Along with the key elements of safety and security, it sets out five principles that must be incorporated into any building design. These principles define that court and tribunal buildings must be appropriate, effective, accessible, flexible and sustainable.

The guide probably looks lovely in real life, as a glossy printed brochure, but it is not well designed for easy reading online or printing on A4 paper, because it is set in landscape mode with two pages (left and right, or verso and recto) on each page — making for a very wide (panoramic) reading view, or a lot of left-right scrolling. Nor is it possible to print the left and right pages separately. Let’s hope the court designs are more user-friendly, as they promise.

Uplifting news

Shortly afterwards, one appeared:

Before long it had over a thousand followers, some of whom wondered who might be running the account, and others concentrated on making puns. Exall duly wrote it up as a blog post: The Ballad of Reading County Court Lift: The Lift with its own Twitter account — an Escalating Problem. In a guest post that followed, barrister Rawdon Crozier went further, putting the story into poetry, the Ballad of Reading County Court Lift (after the style of Oscar Wilde’s Ballad of Reading Gaol), concluding:

Civil servants kill the things we need

By each let this be heard,

Some do it with a bitter look,

Some without a word,

As with a sad and broken lift,

Whose cry “Repair me” goes unheard.

In the context of the MOJ’s response to its Fit for the Future consultation, and the five design principles just published alongside (one of which is that courts should be ‘accessible’) Exall was able to make his own very timely and pertinent comment:

The broken lift, however, is indicative, however, of a much deeper issue. Millions (if not billions) are being spent on “court reform” but the most fundamental task of ensuring that the vulnerable can get into court does not appear to be a priority.

This led to a further post, pointing out in relation to the Ballad of Reading County Court Lift: THIS IS A TRAGEDY NOT A COMEDY

Judiciary

Judges for hire

“In this environment we all must recognise that we are providing a service and operate in an international market for legal services.” So, much as we have software as a service and music as a service, we now also have judging as a service, although court fees payable in individual cases may make it a bit more like a download facility. At any rate the “overall service provided by our lawyers, our arbitrators and our courts must remain attractive if London is to maintain its position”.

Three cheers for us, or perhaps only two and a half. That’s because we don’t currently have a full complement of judges. (Lots of compliments — see above — but not the full complement.) Why not? Because we can’t recruit them. The reasons are partly the comparatively disappointing or uncompetitive financial rewards (which have been identified by the Senior Salaries Review Board). But in a way, Lord Burnett seemed to be saying, the problem with recruitment is a good thing. It shows that the standard is high and “the bar will not be lowered”.

Nevertheless, efforts are being made to increase not just the number but also the diversity of the judges at senior levels. In a separate development this week the Judicial Diversity Forum (JDF) has just launched the Pre-Application Judicial Education (PAJE) programme to help lawyers develop their understanding of the role and skills required of a judge, before they apply. It will deliver a mixture of online resources and discussion groups led by judges, allowing participants to explore perceptions of the barriers to a judicial career.

Now, returning to the main theme, given that we don’t have enough judges, how should we deploy them? Should we prioritise the home-grown cases that affect our domestic litigants, or should we take the opportunity of serving the international forum-shoppers who favour the Business and Property Courts in the Rolls Building? The latest Commercial Court Annual Report 2017–2018, cited by Lord Burnett, reveals that 70% of the court’s business comes from international cases, ie cases where no party is UK-based. How do we justify this preference? Because they pay lovely fat juicy court fees? And these fees help subsidise the administration of justice for less well off and/or taxpaying domestic litigants? It would be nice to think so. The impression one gets, though, from events such as LIDW and the Lord Chief Justice’s cheerleading speech (not the first like this from him or his predecessors) that drumming up business is an end in itself, a British invisible export like financial services. Hence the government’s somewhat embarrassing Legal Services are Great promotion.

Family law

Nicholas Wall memorial lecture 2019

One of these was the role of parents and their responsibility as parents, with the courts or the state helping to support that, and the changes in terminology to underline that: from “custody” and “access” to “residence” and “contact”, and thence to “child arrangements” in 2014. Using a term familiar to common lawyers from elsewhere, Lord McKay of Clashfern, Lord Chancellor at the time, had “described the concept of parental responsibility as running through the Bill ‘like a golden thread’.” (It is unfortunate that for all the Act’s effort to create a better terminology, the press continue to bang on about “custody battles” and “access disputes” as though the law had stood still since before the Act was passed.)

Another major innovation, said Sir Andrew, was “the concept of ‘significant harm’ and the need for the state to establish an objective baseline of detriment to a child’s wellbeing sufficient to justify intervention in family life” on grounds of child protection under section 31.

“It is right to ask the question, at this 30-year anniversary, whether this pivotal reform has proved fit for purpose. The answer to that question is, in my view, an almost unqualified ‘yes’.”

The concept drew from the mistakes and lack of understanding that had been revealed by the Cleveland Child Sex Abuse Inquiry, conducted by Lady Justice Butler-Sloss in 1988. The concept of ‘harm’ in the Act had been sufficiently flexible to include emotional harm resulting from abusive and dysfunctional domestic situations witnessed by the child. A further development of the section 31 power had enabled the court to extend protection to young people at risk of being drawn into gang culture or radicalisation.

Finally, on the topic of ‘secure accommodation, the position was less positive. Though the provision in section 25 was appropriate for children who fit the criteria, the number in need of such accommodation far exceeded the number of places available. But there were others for whom some restriction on their liberty was required but was not provided for under the statutory scheme. They had to be dealt with by a local authority care plan or by making orders under the court’s inherent jurisdiction.

Whilst there seems to be no legal basis to question the Family Court’s jurisdiction to approve ad hoc placements that restrict a young person’s liberty as I have described, I do have a profound unease over the court frequently being asked to approve the accommodation of children when it, the court, has no means of checking or auditing the suitability of the facility that is to be used.

Sir Andrew concluded with a consideration of the Adoption and Children Act 2002, which adapted and deployed the same approach as the Children Act in relation to adoption, leaving the law relating to children “a seamless whole, governed by general principles which are applicable across the board”. He then cited the judgment of Wall LJ in In re P (Children) (Adoption: Parental Consent) [2008] EWCA Civ 535; [2009] PTSR 150; [2008] 2 FLR 625 on the question of what the word “required” meant in the context of dispensing with parental consent for a child’s adoption under that Act, by way of an example of a “perfect judgment from a superb judge” [being the one in whose honour the lecture had been given].

Draft guidance on transparency

Responses can be submitted to the President’s office by emailing pfd.office@judiciary.uk or by post — marked “Consultation on Reporting” — to: The President of the Family Division, Family Division, Royal Courts of Justice, Strand, London, WC2A 2LL. The consultation will close on 30 June 2019.

The Transparency Project have written more about this: A Major Transparency Announcement from the Top Family Judge

Local government

Support for domestic abuse survivors

“For the first time ever, councils across the country will be legally required to provide vital life-saving support in secure accommodation for survivors of domestic abuse and their children — ensuring need in their local area is met.”

The consultation seeks views on the government’s proposals including this “statutory duty on local authorities to provide support that meets the diverse needs of victims of domestic abuse and their children, ensuring they have access to provision that is right for them”.

They would like to hear from victims and survivors, service providers, local authorities, police and crime commissioners and other public agencies, as well as other professionals who support victims and their children.

The announcement has been greeted with some scepticism because it has not been accompanied by any promise of the funds necessary for its implementation.

Legal professions

Inns of Court resurrect Bar Finals course

Derek Wood QC, Chair of the ICCA Governors said: “We are delighted to be announcing this new Bar Course, which will provide students with greater flexibility, high standards of teaching and less financial commitment upfront. The course will be offered on a ‘not-for-profit’ basis and will cost around thirty percent less than London BPTCs presently on offer.”

Some of us older barristers remember doing Bar Finals at the old Inns of Court School of Law (ICSL), which until 1997 had a monopoly over training would-be barristers and was eventually merged into City University’s law school in 2001.

See also: Legal Futures, Inns of Court to re-enter training market with new Bar course

Dates and Deadlines

Middle Temple Essay Competition

Essay title: Should common law courts afford any special weight to decisions of other common law jurisdictions in the 21st century?

The Middle Temple International Award, an award based on an original piece of written work of no more than 5,000 words, inclusive of footnotes, is open to any member of Middle Temple, either currently training to practice law or within 2 years of passing the BPTC, and must include works that have not been entered for other prizes or awards. For more information please contact members@middletemple.org.uk.

And finally…

Tweet of the Week

That’s it for this week. Thanks for reading. Watch this space for updates.

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.

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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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