Thursday, 13 March 2014

Reshaping Justice ~ (Justice in an Age of Austerity)

Lord Thomas CJ
The organisation Justice has commenced a project entitled "Justice in an Age of Austerity".  They have created a working party which will report in March 2015.  Its terms of reference are:
  • To examine key features of the resolution of disputes in the courts and tribunals
  • To assess the adequacy of existing provision in an age of austerity; and
  • To make recommendations for improvement

In a speech on 3rd March to the Justice, the Lord Chief Justice (Lord Thomas) spoke about RESHAPING JUSTICE in the face of government policy to spend less.  The text of the speech is available via the Judiciary website.  Lord Thomas declared that his speech had two purposes:

" ... The first is to make clear that our system of justice does need reshaping to deal with the fundamental change that is occurring in the role of the State. It is retrenching. The budget for justice is being reduced substantially. We must ensure that our system remains able to maintain the rule of law by administering justice effectively, speedily and impartially in this new age. The second is warmly to welcome the re-shaping of Justice and to say how very encouraged I am that Justice in its re-shaped form can and must play a vital role in reshaping our system of justice."

For Lord Thomas,
the status quo cannot be sustained since funding for justice is not unprotected against retrenchment and he sees cuts as likely to be permanent.  Reform is necessary though the question was how to reshape justice so that it can best uphold the rule of law at a cost that the State is prepared to fund and which litigants can afford.

At this point, one might well be forgiven for thinking that the State is willing to fund very little as the cuts to civil legal aid (and planned changes to criminal legal aid) demonstrate all too well.  Furthermore, the vast majority of individuals do not have the personal means to fund legal representation.  Since 1st April 2013, when cuts to civil legal aid imposed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, there has been a marked increase in numbers of litigants in person and the vast majority of them have no knowledge of law or procedure.  This is particularly obvious in the family courts in cases involving parental disputes over matters such as contact with their children and residence.

Almost half of court cases involving children now feature litigants in person - (on this see the post on the Marilyn Stowe blog).  From April 2014, the family court system will be reformed so that there is a unified Family Court for England and Wales.  A useful post by John Bolch on the Marilyn Stowe blog looks at some of the steps already taken to, hopefully, address the requirements of litigants in person.   John Bolch noted the publication of the final report to the President of the Family Division of the Private Law Working Group (‘PLWG’).  The PLWG has been working on the new ‘Child Arrangements Programme’, or ‘CAP’.  The CAP is a scheme that sets out ‘best practice’ in relation to how the courts should deal with disputes between parents over the arrangements for their children, and will replace the old ‘Private Law Programme’.

Lord Thomas touched on several areas of possible reform.  Better Information Technology (IT) in courts is needed since what is there at present falls short of that required in a modern system.  (The cynic might note here that government IT projects seem to be massively costly and rarely effective).   At paragraph 18 he referred to various reports:  The Bingham Centre report on the Administrative Court; the work of the New Economics Foundation (Cutting Crime through court innovation), the Centre for Justice Innovation (Better Courts) and the Criminal Justice Alliance in examining the best way of dealing with low level offending.  Lord Thomas also welcomed the recent report from Policy Exchange - "A new vision for summary justice."

Lord Thomas went on to talk about the need for a political consensus that will enable reshaping of the delivery of justice whilst ensuring that it remains fair and impartial.  To what extent such a consensus is possible is debatable but I suspect that the Lord Chief Justice is correct in saying (para 9):

'The political parties are agreed that the budget deficit must be reduced; the cutback on government expenditure is to continue for the foreseeable future. It was an approach born in times of austerity, but there is no indication that there will ever be a return to times of abundance in the provision of funding by the State'

He then touched upon the greater number of litigants in person and hinted that this might necessitate a more inquisitorial process. (Interestingly, he did not mention greater use of alternative dispute resolution methods such as mediation).  He would clearly welcome reform of procedure for dealing with serious fraud cases and he also gave a strong steer towards revisiting the work done on Criminal Courts by Lord Justice Auld in 2001 - Criminal Courts Review.  The Auld Review was essentially the work of just one person.  It suggested a new type of court - the District Court - with magistrates sitting with a District Judge.  This idea was not taken forward by the government of the day and, at the time (2001), appeared unlikely to be acceptable to either District Judges or Magistrates.  It may be that, perhaps with modifications, the scheme put forward by Auld LJ might find now find favour?

Throughout this relatively brief speech, Lord Thomas was at some pains to point out that his own views would be informed by the various reports including that of Justice in an Age of Austerity.  He was also clear that there was not the luxury of a long period of time to implement reform.  He said that some of what is put forward will be for political decision, some for decision by the judiciary working with the executive and some of it will be for judiciary alone to consider.  Nevertheless, creative ideas were needed and would be considered 'particularly by reference to the contribution that such ideas can make to delivering justice fairly and impartially in the changed financial circumstances.'

It may well be, as Joshua Rozenberg suggests (The Guardian 4th March), that the Lord Chief Justice will have made life easier for those politicians seeking to impose financial cuts.  There is certainly little in the speech to support those who would argue for a sensibly funded justice system with adequate representation by a qualified lawyer for litigants and defendants.  There appear to be many bodies putting forward suggestions for change but there is little to indicate how reforms would eventually be selected  - (perhaps cost alone if most politicians hold sway) - or how a sensible and coordinated package of reform would be produced - or how the general public might be given some say in all of this.  There is one certainty however.  It is inevitable that the face of justice will change radically over the next few years.

In a further development, the Secretary of State for Justice and Lord Chancellor requested a review of the efficiency of criminal proceedings.  In February, The Lord Chief Justice appointed Sir Brian Leveson (President of the Queen's Bench Division) to undertake this review - see Review of efficiency of criminal procedure announced - Judiciary 27th February.

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