This week’s roundup of legal news and comment focuses on access to justice and is dedicated to the memory of the late Sir Henry Brooke, who did so much to promote these things. Here he is at the Bach Commission

(photo: Bar Council, from an article in Legal Voice)

Sir Henry Brooke

We were very sad to hear of the recent death of Sir Henry Brooke, a former Lord Justice of Appeal, who has done so much to promote access to justice and public legal information. He was chair of the Law Commission of England and Wales, and more recently served as vice-chair to the Bach Commission, helping to draft its report, The Right to Justice.

He was also emeritus president of the Slynn Foundation, promoting the rule of law and human rights around the world, and the patron of nine legal charities including Prisoners Abroad and Law for Life.

As a member, and for nine years president, of the Society for Computers and Law, he was an early supporter of the use of use of technology in the administration of justice, though his efforts, eg as judicial member of the Courts and Tribunals Modernisation Board (2001-4), to modernise the courts were continually undermined by administrative cost-cutting and short-sightedness, as he describes on his blog.

He was also one of the key instigators of the ‘Free the Law’ movement in the United Kingdom and, as noted on its home page, a driving force in establishing BAILII, a free publicly accessible database of senior court judgments. In promoting the electronic publication of judgments Sir Henry was also responsible for the introduction of neutral citations and paragraph numbering in judgments, in the form in which they were subsequently adopted for most courts and tribunals in the UK. The note on BAILII’s home page continues:

‘Sir Henry was the inaugural Chair of BAILII and served in this role for over a decade until 2011. During this time, he oversaw the development of BAILII from its simple beginnings. His guidance and good humour were essential in making BAILII what it has become today. Sir Henry was a champion of free access to legal information not only for the UK, but for the whole common law world.

A tribute from UCL Faculty of Laws records that:

‘Sir Henry was also a good friend to the UCL Laws Faculty, and in 2014 he donated his personal working papers to the UCL Judicial Institute, becoming the first judge to help establish the UK’s only Judicial Archive. His papers have been curated by Dr John Sorabji, UCL Laws Senior Teaching Fellow.’

There is a fine obituary in the Financial Times which records his successful career at the Bar and the Bench before noting that

‘Retirement barely slowed him down. He made frequent trips to eastern Europe, notably Albania, to help overhaul post-Communist legal systems and combat corruption. This line of work brought him fresh honours to go with his knighthood: a CMG, awarded for his Albanian endeavours, and his appointment in 2017 as a knight of the Order of Skanderbeg, the country’s highest honour for a non-citizen.’

There are also obituaries in:

Many of those in the legal blogging and tweeting community, in which Sir Henry was himself so  active, have written tributes to him or special posts on the topic of access to justice in his memory.

Freeing the law

Publishing the courts: Judgments and public information on the Internet

The above is the title of a speech Sir Henry gave when he was still Lord Justice Brooke, Lord Justice of Appeal, at the Commonwealth Law Conference – Melbourne in 2003. The speech is currently archived by the National Archives but as a tribute to Sir Henry, and as the topic is peculiarly of interest to ICLR and its readers, many of whom also make extensive use of BAILII, we are republishing it in a separate blog post here.

Open justice

Sir Ernest Ryder on access to justice, transparency, accountability and the role of the judiciary

‘Open justice is central to our justice systems. It is more than that. It is, through our courts and justice systems, of fundamental importance to democratic government.’

So began Sir Ernest Ryder, Senior President of Tribunals, in an important speech entitled ‘Securing Open Justice’ given to the Max Planck Institute Luxembourg for Procedural Law & Saarland University, 1 February 2018.

He went on to explain that open justice encompassed three related principles.

The first was  that of equal access to the court. For democracy to be meaningful, the courts – justice – must be open to all. It was unfortunately a continuing truism that for large numbers of individuals and businesses the doors of our courts and tribunals remained closed.

The second related principle was that courts and their judgments should be open to scrutiny by the public and the media. A judge observed was an attentive judge, a democratically accountable judge. Notwithstanding the advantages to some of private online dispute resolution, the diversion of public justice to an unobservable online forum would lead to a democratic deficit. Our digital courts must be open courts.

Thirdly, open justice, through accessibly written public judgments, was the means through which the courts fulfilled their role of explaining and clarifying the law.

The judiciary had a constitutional duty to secure open justice, as recognised by the House of Lords in Scott v Scott [1913] AC 417 and in section 6 of the Human Rights Act 1998. It was inherent in the common law constitutional principle of the rule of law, now statutorily recognised in the Constitutional Reform Act 2005.

That duty was focused on what happened in the courtroom. But the judiciary’s duty was not limited to that. The judiciary was responsible, in partnership with the executive and Parliament, for the administration of the courts and tribunals, and for the appointment of the judiciary.

The judiciary was not a cloistered profession, but one to which any member of society could be appointed on merit. Open justice required an open judiciary, one in which every part of our democratic societies could see they had a stake.

It was important that society understood how the judiciary was run and organised. Transparency, in sort far is it did not impair judicial independence, would help understanding. Scrutiny and accountability were essential, provided they did not undermine judicial independence.

Lord Neuberger: Hard Talk

Sir Ernest Ryder’s speech echoed the sentiments expressed by Lord Neuberger, former President of the UK Supreme Court, when interviewed on BBC HARDtalk, 30 January 2018.

‘To my mind, anything concerned with the justice system … one would start with the proposition that it should be as open as possible.’

He was speaking, in part, about the desirability of more transparency in relation to the Parole Board’s decisions, but he discussed the topic in general terms along with others he was asked about, including the response of some politicians to the court’s decisions in the Article 50 litigation. Well worth a listen.

Access to justice

Vulnerable clients

Jo Delahunty QC, Gresham Professor of Law, gave the latest in her series of lectures on the family justice system last week, on the topic of  Vulnerable Clients and The Family Justice System.  She based her discussion around the following questions:

Should a disability prevent someone being a good parent? Is vulnerability the same as disability? What does the family justice system do to protect the rights of the disabled person to be a parent and of the child to be adequately parented? How can a vulnerable parent be helped to ensure their voice is heard in court? Beyond the court room, what about families’ needs for ongoing support? Do we make a difference in society where it really counts?

The highlights of the lecture were captured in a blog by Paul Magrath on the Transparency Project website. You can also watch the lecture video on YouTube.

Legal profession

Pupillage: #FailureIsNormal

A number of successful barristers have been tweeting under the hashtag #FailureIsNormal about their often bruising experience of gaining pupillage. It began with a tweet from human rights supremo Adam Wagner:

https://twitter.com/cehashley/status/959367635577245696

UKSC Judicial Assistants

Applications are now open for qualified lawyers in the UK to become the next judicial assistants, working directly with Supreme Court Justices, using this application form 

The closing date for applications is midnight on 28 March 2018.

Click here for details of eligibility.

LIBERTY

The human rights and civil liberties organisation is recruiting a lawyer to lead their work on privacy, technology, surveillance and human rights.

Find out more and apply to help them fight the #SnoopersCharter

send completed application forms with the job title as the subject to HR@liberty-human-rights.org.uk

Closing date 28 February 2018

ICLR – become a law reporter.

See our home page at ICRL.3 for details.

 

Other reads/roundups

Transparency Project: Family Court Reporting Watch Roundup

Inforrm’s blog: Law and Media Round Up – 5 February 2018

Waiting for Godot (Jolyon Maugham): Why we need to know about article 50

The Justice Committee: weekly update 

 

 

Law (and injustice) from around the world

Canada

Transparency in the Supreme Court

The newly appointed Chief Justice of the Canada Supreme Court, Richard Wagner has promised a new era of transparency for the court. The Globe and Mail reports that he plans to provide information about cases which ordinary members of the public and not just lawyers can understand.

In practical terms, this means introducing, alongside the legal ‘headnote’ (syllabus) produced by the court, a plain language summary for the press and public, which will be posted on the court’s website and Facebook page. (This is similar to what we already have in the UK Supreme Court, so it seems a bit surprising that the Canadian version is so far behind. They seem to be ahead in so many other ways, eg in their online court, which is already in operation in British Columbia.)

According to the newspaper’s report of a speech he gave recently to a packed lecture hall at the University of Western Ontario’s faculty of law in London, Ontario:

‘Transparency, he said, is a necessary adaptation in a world losing faith in democratic norms.

“When you see what’s going on outside our country, it’s a bit scary,” he said, referring – without specifying any countries – to a loss of respect for democratic institutions, minority rights and judicial independence.

“I think we are very lucky in Canada to have strong institutions, compared to other countries where some basic principles are under attack.” But, he continued, Canadians should not take their democratic “assets” for granted. “I think we have to protect those assets. I think we have to work for it on a daily basis.”

Part of the need for more transparency stems from the declining presence of traditional news media, he said. Twenty years ago, the court’s decisions were “received, understood and explained to the citizens by the traditional media. It’s not the case any more. There are very few media attached to the coverage of the Supreme Court and its decisions.”

This echoes our own anxieties about the quality and extent of media coverage of court cases, as discussed by the Transparency Project in a recent blog post, Crisis in Our Courts – and How to Solve it.

Lithuania

Human rights: freedom of expression can protect offensive ideas

In the case of Sekmadienis v Lithuania ([2018] ECHR 112) the Fourth Section of the European Court of Human Rights held that a decision to fine a clothing company for the display of adverts referring to “Jesus” and “Mary” was a violation of Article 10.

The case concerned advertisements for clothes which used the religious names Jesus and Mary with a certain amount of religious iconography but not in a particularly offensive way. However, offence was officially taken and a regulatory body ruled that the advertisements breached the Code of Advertising Ethics. The company was fined and a final appeal to the Supreme Administrative Court was dismissed. The Strasbourg court took a different view and concluded that the fine interfered with the company’s freedom of expression and the national courts had failed adequately to justify the interference with that right. The Court reiterated that freedom of expression extended to ideas which offend, shock or disturb.

‘This is an interesting decision which addresses the difficult question of whether and to what extent freedom of expression should be restricted if the sensibilities of others are offended’, writes Hugh Tomlinson QC in a post on Inforrm’s blog.

 

Tweet of the week

… is from Mary Prior QC on the difference between appearance and reality in the law:

https://twitter.com/prior_mary/status/960135827232870403

That’s it for now. We’ll have more next week. Our thanks to all who flagged up stories, via their blogs or on Twitter.

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.