In or out: shaping futures

Whether we find ourselves in or out of the EU, securing the survival of a functioning justice system remains a key 2016 challenge

By the time this column is published we will know whether we have voted to stay in the European Union or to leave. 

Either way, it seems likely that there will continue to be challenges ahead in our relationship with Europe. If you have not yet seen or read the analysis produced by the Bar Council’s EU Law Committee of the legal and constitutional implications of Britain either leaving the EU or staying under the New Settlement, I would encourage you to do so as it sets out a wealth of relevant information in a non-partisan manner.

Funding a functional system

Whatever one’s views on the influence of the EU on the development and practice of law in England and Wales, and whether the vote has been for in or out, there are real challenges ahead for the Bar, and indeed more broadly for society, in connection with the administration of our justice system. The government’s commitment to invest some £738k in new IT systems is both welcome and necessary. It remains to be seen whether future governments will commit to the funding necessary to keep these systems functioning and up to date. We need our courts to be fit for the 21st century, in the same way that most of us have – to a different extent depending on practice area and appetite for change – modified and developed our practices over the last 10 years or so. In some areas the substantial infrastructure change is already taking place, notably in the crown courts with Better Case Management and the Digital Case System. Neither has been without difficulty. In other areas, including family and civil, the changes are ahead of us. Many of these will, I hope, be welcomed, but there will undoubtedly be areas where there will be difficult questions to be asked about what we as a profession, and as members of society, see as necessary for a proper functioning justice system. In an age that has been described as one of ‘austerity’ by politicians and where justice is not entitled to ring fencing, we will need to watch carefully where reforms take us. Since the budget of the Ministry of Justice is finite and currently subject to annual cuts, the pressure will be to finance the ‘investment’ in IT by corresponding savings elsewhere in government spending on the justice system. Slogans such as ‘Delivering Justice in an Age of Austerity’ rather suggest that the driver for change may be containing cost rather than improving delivery. It would be naïve to think that changes made in the name of austerity will be reversed when the ‘better’ times come and the political mood changes.

Online Court and the junior Bar

The ramifications will, I suspect, be substantial across the board. We have seen this already to some extent in the context of the interim report of Lord Justice Briggs and debate surrounding some of his proposals, in particular the Online Court. Whatever his final proposals in July, they will have a substantial impact on the junior Bar, and those members of the public seeking to access the courts. Two central concerns of mine have been the apparent exclusion of lawyers from the Online Court and the development of a two-tier civil justice system. It is some encouragement to hear from Briggs LJ, during the open forums on his report, that he is considering some limited cost recovery for legal representation at certain stages. There is, however, a risk that the beneficial role of advocates, particularly in smaller cases, is insufficiently recognised and that lawyers are seen as part of the problem rather than the solution. Accurate advice and efficient representation are essential to the administration of justice and it is important that the government recognises this. It is not suggested by government at this point that artificial intelligence can replace lawyers or judges, but in the future, particularly if austerity continues to take centre stage, it may be seductive to some to think that this technology could replace lawyers (and indeed judges). In some quarters it is already suggested that suitably programmed expert computer systems can predict outcomes as long as the correct data is fed to them. Even if this were true, who wants to be represented, or indeed judged, by a machine?

The state of courts

In addition to the substantial cuts to legal aid in recent years, there has been little investment in our courts. I have been struck on my Circuit visits by how run down many of the court buildings have been allowed to become. A recent Bar Council meeting invited JUSTICE to debate with us what courts need, in light of its working party set up to consider this. It has just published What is a Court?, which I would encourage you to read, not because I agree with all of its conclusions, but rather because it covers ground that will be reviewed in the years ahead. We know that some courts will face closure; in some cases this may be sensible, but not in all. It has been reported that Southwark Crown Court is likely to be closed and sold off. It concerns me that to date there appears to have been no official announcement as to what is proposed, in particular, whether the judges with their strength in fraud and white collar crime will remain together and rehoused, or whether they will be dispersed.

While change is inevitable, and in many cases positive, it is important that the Bar is fully engaged in shaping the future, not just in terms of how we practice, but also how our justice system functions. Whether we find ourselves now in or out of the EU, this will be an important part of the second half of 2016, and thereafter.

Contributor Chantal-Aimée Doerries QC, Chairman of the Bar

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