This week’s roundup of legal news and comment focuses on the courts, court reform, legal aid and family law.

Court reform

HMCTS Reform programme

The Lord Chief Justice, Lord Burnett of Maldon, delivering the first Sir Henry Brooke Memorial Lecture under the title The Age of Reform, provided a somewhat panglossian* update on the current programme of court modernisation known as HMCTS Reform. He began very properly with a tribute to Sir Henry, whose efforts to drag the courts into the computer age were persistent and unstinting (though never properly supported by sufficient funding, as he describes on the excellent blog which survives his sad passing earlier this year). Then Lord Burnett went on to explain how, at last, the government had seen the light and decided to provide proper funding for a transformation that should have taken place years ago, to bring the courts and the conduct of litigation into the digital age.

He welcomed the possibilities technology could bring to the law, including the use of artificial intelligence and machine learning in the management of litigation, if not its resolution. (See Legal Futures: Lord Chief Justice hails potential of big data and AI to reduce litigation and promote settlement .)

Although generally upbeat about the whole Reform project, he did concede that the projected timescale had slipped. When the project began it was supposed to finish by 2020. Last year that was extended to 2022. Now, it seems, the target date has been amended to 2023.

He was careful to stress, too, that the use of video linked hearings or online dispute resolution would never extend to any case that required a proper old-fashioned court hearing, saying that any decision about the use of video evidence would ultimately be taken by a judge, and rejecting the notion, put by one questioner at the end, that criminal defendants might find themselves “spectators at their own trial” merely watching proceedings on video.

But he was less able to answer a question, put on behalf of ICLR, about open justice and transparency of virtual or online courts:

The lecture was given as part of the BAILII lecture series, hosted by Freshfields at their London office just off Fleet Street, on Thursday 7 June 2018. You can read it here.

*Dr Pangloss is a character in Voltaire’s play, Candide, who believes ‘everything is for the best in the best of all possible worlds’. The play formed the basis of a musical by Leonard Bernstein, with terrific score but a rather less successful book (by Lillian Hellman).

PAC Inquiry

After the National Audit Office issued a report questioning the value and the amount of progress made in the HMCTS Reform project, the House of Commons Public Accounts Committee began an inquiry. Explaining the scope of the inquiry, it said:

‘Costs have increased whilst benefits have decreased, and, whilst HMCTS has taken steps to manage risks and improve how it manages the changes, it will be difficult to deliver without additional meaningful engagement with other related parties such as police and legal professionals.

The Committee will ask representatives from HMCTS and the Ministry of Justice about the benefits the transformation will bring, whether enough progress has been made so the programmes deliver value for money, and how they can ensure all the organisations with a part to play are fully engaged with the programmes.’

A number of bodies and persons have responded with written evidence to the enquiry, including the Bar Council, the Magistrates Association, Transform Justice and the Transparency Project. You can see them all and read their submissions on the Inquiry’s evidence page.

A hand survey of the main themes of the responses has been published on The Transparency Project blog here, Court Reform and Open Justice: responses to the Public Accounts Committee’s Transforming Courts and Tribunals inquiry

The Inquiry has also held at least one oral evidence session, which you can read / watch here.

Human centred design

One thing HMCTS might want to consider, according to an article in Litigation Futures, is the introduction of ‘human-centred design principles into the courts, which would make them welcoming and easy to navigate for litigants-in-person (LiPs), according to new research’.

They cite a paper by Margaret Hagan, head of the Legal Design Lab at Stanford University in the US, based on research in California, and entitled A Human-Centered Design Approach to Access to Justice: Generating New Prototypes and Hypotheses for Intervention to Make Courts User-Friendly.

According to the abstract, it explores the following questions:

‘How can the court system be made more navigable and comprehensible to unrepresented laypeople trying to use it to solve their family, housing, debt, employment, or other life problems? This Article chronicles human-centered design work to generate solutions to this fundamental challenge of access to justice. It presents a new methodology: human-centered design research that can identify key opportunity areas for interventions, user requirements for interventions, and a shortlist of vetted ideas for interventions.’

Litigation Futures added that

‘Ms Hagan said her research had gleaned anecdotal insights into the “poor user experience” of LiPs, including that “the legal system was made for judges, clerks, and lawyers” and was “intimidating and overwhelming for litigants”.’

UK Supreme Court

Annual Report and Accounts 2017-2018

On 5 June 2018 the UK Supreme Court presented its annual report to Parliament. In her foreword, Baroness Hale of Richmond said it had been a great honour to have been appointed the first woman President of the Supreme Court last year. She was also the court’s longest serving member. She paid tribute to her predecessor, Lord Neuberger, and other retired members of the court, and said the year had been a busy one, with judgments given in 78 appeals between 1 April 2017 and 31 March 2018.

In his introduction, the Chief Executive, Mark Ormerod, said the court had been working against the background of diminishing financial resources, but had nevertheless managed to ‘provide a good service to the Justices and those using the Court, as well as to visitors’. The court had been delighted with the number and quality of entrants to its first essay competition. He added:

‘We are constantly looking for ways by which to extend the educational outreach that the Supreme Court provides and are planning further initiatives over the coming year.’

The court also hosts the Judicial Committee of the Privy Council, which hears appears from a long list of Commonwealth and former colonial jurisdictions around the world, as well as a handful of discrete UK jurisdictions, such as the Court of the Admiralty of the Cinque Ports, the Royal College of Veterinary Surgeons, and a handful of ecclesiastical courts. A full list of the overseas jurisdictions, listed alphabetically from Anguilla to Tuvalu, appears on page 114.

Judiciary

New URL affirms separation of powers

On 5 June 2018 the Courts and Tribunals Judiciary website announced that its web address, or domain, would henceforth omit the subdomain indicator ‘gov’ in its URL (or Uniform Resource Locator). Why? ‘To  reflect the constitutionally independent position of the judiciary’.

Hurrah. This is something we have been urging for some time. See, for example, an article by ICLR’s Paul Magrath in Legal Information Management (Volume 15, Issue 3, September 2015 , pp. 189-195) under the title Judgments as Public Information commenting on and citing an article by Joshua Rozenberg in The Guardian, UK supreme court wins independence from government … in its url (which discussed a similar change to the Supreme Court’s website). 

A good question is why it has taken three years to effect the same change for the rest of the judiciary after its implementation for the UK’s top court. Another question is why so many judgments are still being published on the government’s gov.uk website, particularly for tribunals. If the Judiciary are being accorded cyber independence, under constitutional principles of separation of powers, that should cover the publication and archiving of all their judgments.

Luckily, we also have BAILII, which as an independent charity is certainly separate from the government, and indeed the judiciary – as, of course, is ICLR, as a custodian of judgments.

Another persistent problem with both the Judiciary and the gov.uk websites has been busted links, following the relocation of content as the sites have been updated and reorganised in recent years. The recent announcement assures us that ‘links to previous website pages and documents will redirect automatically’. We shall see.

Family law

President’s views on family law …

As part of the Eleanor Rathbone Social Justice Public Lecture Series 2017-18, the President of the Family Division, Sir James Munby, delivered a lecture on 30 May under the title What is Family Law? – Securing social justice for children and young people.

After paying tribute to Rathbone as a family law reformer who proved to be ‘on the right side of history’, Munby set out to answer the question in his title. But first, he had to ask himself ‘What is the family?’ It was certainly not what it had once been understood to be.

‘The fact is that many adults and children, whether through choice or circumstance, live in families more or less removed from what, until comparatively recently, would have been recognised as the typical nuclear family. This, I stress, is not merely the reality; it is, I believe, a reality which we should welcome and applaud.’

He then explained that the law had to adapt to that reality. Family law was concerned with status (as it applied to relationships between partners, parents and children), with the consequences of the fracturing of those relationships, and with the regulation of family finances. But the problem with the way the law dealt with these things was that its approach was not holistic. The problems that required the application of family law or the intervention of family courts were often multiple in origin, and would be best treated by a single, problem-solving court adopting a holistic approach. He therefore urged a

‘fundamental re-balancing of the family court towards what ought to be its true role as a problem-solving court, engaging engaging the therapeutic and other support systems that so many families, children and parents need if they are to achieve justice – both justice from the court and social justice.’

Another problem was the multiplicity of external agencies involving in solving problems – such as local authorities – whose actions were beyond the ambit of the court to direct and whose resources might be limited. He cited the widely publicised case of Re X (A child) (No 3) [2017] EWHC 2036 (Fam); [2018] FLR 1054, in which he had said (at 39) that if a secure clinical placement were not found for a disturbed, suicidal teenager, and she made another attempt on her life, ‘we will have blood on our hands’.

Though he was criticised for those remarks, he said ‘I remain unrepentant’, saying ‘there are occasions, … when a judge’s sworn duty to do “right” includes speaking truth to power’.

… and the press reaction

He should have known better. It is, of course, the populist newspaper columnist’s duty to speak nonsense to judges, or at least to belittle (or beliddle) the truth. As the Transparency Project explain in a recent post, Name-calling of judges, the Sunday Times featured the unsubtle headline ‘I put it to you m’lud that you are a dimbo who is wrong to trash traditional families’ [Paywall] above a column by Rod Liddle, which turned out to be a series of jibes about the intellectual ability and physical appearance of a senior judge, Sir James Munby. It seems Liddle took exception to his having applauded the more progressive and inclusive description of the family described in his speech.

Legal aid

Criminal Bar to vote on new offer

This week the criminal Bar were being invited to vote Yes or No to a revised fee package negotiated with the MOJ which would offer some improvements, including new money (some £15m extra from government) to the previous, widely rejected, package. As explained in the Law Society Gazette, the MOJ final offer comprises:

  • An extra £8m for fraud, drug and child sex cases that lose out under the new fee scheme;
  • A 1% increase in advocacy payments from April 2019 (£2.5m);
  • Further funding of approximately £4.5m, more for juniors.

To air their thoughts on the proposals, barristers have been encouraged to add blog posts to a collection being hosted on the CBA website, and many have posted elsewhere, including a number on the Secret Barrister blog.

What is offered can never replace what has been lost, over the years, in remuneration for publicly funded criminal defence work; the question is whether too little, too late is still better than nothing, or whether more could be got, at this stage, by further protest action.

STOP PRESS The result of the vote have now been announced by the Criminal Bar Association, and it seems the Yes vote won by a tiny majority (51.55%), which means the MoJ’s increased offer will be accepted. Peace in our time it probably isn’t, as many vowed to continue the struggle for better funding of legal aid cases.

See also: Bar Council, Statement on the AGFS Vote

Dates and Deadlines

Refugee Week

This year’s Refugee Week takes place 18-24 June. This year marks the 20th anniversary of the event. For more details, see Freedom from Torture  and look out for their Great Street Feast a ‘world-class evening of gourmet street food and entertainment’ at BAFTA 195 Piccadilly on Wednesday 20 June 2018.

Law (and injustice) from around the world

Bermuda

Equal marriage restored

The Supreme Court of Bermuda (a British Overseas Territory) has ruled that provisions of the Domestic Partnership Act in effect banning same-sex marriage were unconstitutional, reversing a ban on equal marriage introduced earlier this year.

The case was brought by OUTBermuda and other litigants, supported by the cruise ship industry, following a change in the law last year which only permitted civil partnerships, not full marriage of same sex partners. There’s a good explanation of the background in Pink News: Bermuda Supreme Court strikes down law banning equal marriage

See also: Weekly Notes – 12 February 2018

 

China

Lawyer shackled in jail in Xi Jin-ping’s ‘war on law’

The prominent human rights lawyer, Li He-ping has been released from a month-long period of being required to wear, in prison, a ‘torture device’ consisting of leg and hand shackles linked by a short chain, as part of his two-year-long incarceration following his conviction for having “repeatedly used the internet and foreign media interviews to discredit and attack state power and the legal system”.

As a result of his conviction, he is now unable to practise law and has also signed an agreement that he will not carry out any further media interviews. But his wife, despite constant intimidation, refuses to be similarly constrained, according to the BBC:  Chinese lawyer ‘wore torture device for a month’

They report that Li Heping is one of a group of human rights lawyers who were detained in July 2015, in a crackdown since referred to by critics as China’s “war on law.” President Xi Jinping has made it clear that he sees the ideal of constitutional rights, guaranteed by independent courts, as a threat to national security.

 

Denmark

Burqa ban

Denmark has passed a law banning the burqa and the niqab which critics have said constitute an infringement of rights to freedom of expression and religion.Those violating the law risk a fine of 1,000 kroner (£118). Repeat offenders could be fined up to 10,000 kroner, according to the Guardian, which quoted Amnesty International’sEurope director, Gauri van Gulik, as saying that

‘While some specific restrictions on the wearing of full-face veils for the purposes of public safety may be legitimate, this blanket ban is neither necessary nor proportionate and violates the rights to freedom of expression and religion.

If the intention of this law was to protect women’s rights, it fails abjectly. Instead, the law criminalises women for their choice of clothing and in so doing flies in the face of those freedoms Denmark purports to uphold.’

However, other European countries have also banned full face coverings in public, including Austria, France and Belgium.

 

France

Commercial court competition

Paris is worth a mass, a famous French king once said (Henri IV in 1593). He was prepared to tailor his faith to maximise his fortune, or at any rate his hold on power. Will litigants make the same calculation and relinquish their faith in the English legal system when they decide, for a maximum fee of €100, to file their commercial claims in the Paris Appeal Court’s new international commercial court, which opened in March 2018, rather than paying fees of up to £10,000 to litigate in London?

As Michael Cross explains in the Law Society Gazette, the new court also offers “speedy resolution, transparent decision making and guaranteed enforceability of judgments throughout the EU”. Proceedings must be filed in French but with evidence given in English, and bilingual judges delivering judgments in both languages. The English language edition of the procedural rules of the Paris court provide that “the chamber will apply French or applicable foreign law”.

Though it may seem odd to hear the common law of England described as “foreign”, we should not forget that most English litigation was conducted in Law French or Anglo-Norman until comparatively recently (it petered out around end of the 17th century, to be imprecise). For American litigants (who are the new court’s primary market), conducting cases in both French and English may seem a bit like crossing the border into Canada, where the Supreme Court (and some Provincial courts) operate in both languages.

Many English lawyers will be familiar with Law French terms such as “profits à prendre” and “chose in action”. But the one thing they might find disconcerting is the promised speed of resolution: apparently, they can look forward to “expedited decisions on the merits of a case available in between one and 15 days”.

And finally … Tweet of the Week

from Caoilfhionn Gallagher QC awaiting judgment of the UK Supreme Court, in Re an Application by the Human Rights Commission for Judicial Review (Northern Ireland : Abortion) [2018] UKSC 27 in which she acted for the intervener Humanists UK.

The case is the subject of a post on the UK Human Rights blog: Supreme Court rules on challenge to abortion ban in Northern Ireland which may help understand the technical nature of the decision. Because the applicant was ultimately held to lack sufficient standing to bring the appeal, the decision that the general prohibition on abortion in Northern Ireland was incompatible with the right to private and family life under Article 8 ECHR remains obiter dicta (ie not binding).

See also: Obiter J, Law and Lawyers Blog, Abortion and Northern Ireland ~ Supreme Court 7th June 2018

Featured image: Civil Justice Centre (Manchester) by Wojtek Gurak, via Flickr creative commons, reproduced with thanks.