Passing the justice parcel

What are the consequences for the rule of law, judicial independence and court reform, asks Andrew Walker QC

Clarke 28; Grayling 32; Gove 14; Truss 11; Lidington 7.

The names are familiar. In some cases, the change was welcome.

The numbers are rather too reminiscent of recent Ashes scorecards for the England top batting order. They are no more impressive in their true context: the number of months in office as Lord Chancellor and Secretary of State for Justice. The average for the preceding 70 years was at least 56: over 4½ years. The trend is far from welcome.

The contrast with the office of Lord Chief Justice is stark. Candidates to succeed Lord Thomas had to be able to serve for at least four years. Lord Justice Beatson has recently endorsed this as right in principle, because ‘continuity and stability are important components in underpinning the independence of the judiciary’. Does this not apply to the office of Lord Chancellor too, as an important component in underpinning the effective defence of the independence of the judiciary, and in upholding the rule of law in cabinet and in government? Short-term appointments can only make it harder for those in office to fulfil their crucial role as champion of the constitution and the rule of law, even for those who have the qualities required; harder still if they must have their political futures well in mind.

What are we to make of this? On any view, it raises serious questions over the commitment of recent governments and prime ministers to ensuring that the rule of law has powerful protection at the heart of government, and over the ability of our constitutional arrangements to withstand attacks on the rule of law from wherever they may come. Even in times of political stability and measured public debate we would ask those questions. Our new Lord Chancellor has a task on his hands to provide convincing and reassuring answers, and to give us confidence in the future of his office. I am sure he will understand our concerns. It remains to be seen whether he will be able to address them.

All this flows from the new constitutional relationship created by the then government, with little prior thought, in 2005. We are starting to see its effects on the judiciary too.

One consequence is that the senior judiciary is becoming identified more closely than ever with the process of making and implementing proposals to reform our justice system: reforms that affect us and matter to us. The ‘pass the [justice] parcel’ of frequent re-shuffles can only exacerbate this. I am not the first Chair of the Bar to express concern about the implications for the judiciary of becoming so closely aligned with reforms which are dependent on a ‘deal’ with government, particularly one requiring substantial annual costs savings, and of becoming policy-makers or managers rather than judges. Not only could this lead to changing perceptions about their independence, but will it also be judges who are seen as responsible for the success (or failure) of the reforms, at least in some degree? Does responsibility require accountability and, if so, in what way? If the judiciary is driving the current reforms, then I see dangers ahead.

But who is it, in truth, who will be making the critical decisions about where the programme takes us? The answer matters. We are already alarmed by the so-called ‘flexible operating hours’ proposal, and have made our views known. At some point, decisions will need to be made about it.

We are troubled by other proposals too, such as so-called ‘virtual hearings’ (or perhaps ‘smart hearings’?). Many important questions remain about this part of programme. What hearings are to become ‘smart hearings’? With the (current) exception of criminal trials, no limit seems to have been identified. Modest procedural hearings are one thing: full trials (in any jurisdiction), with contested oral evidence, are another altogether. HMCTS seems to be trying to ‘enable’ this for every type of hearing, its only limit being what is feasible within the budget. We need a proper and informed debate as to where to strike the balance between the possible and the desirable, in the interests of justice; but with whom should we be having that debate? Is a debate even intended? Is anyone being asked for their views, or to carry out research into the implications? A decision surely needs to be made about what is right, never mind what is workable, and can be kept working for the future. And what if we, first instance judges, or academics who understand the implications, do not agree with the final destination? What happens, too, if we find that ‘smart trials’ diminish the quality of justice in more significant hearings, but the promised £250m in savings cannot be delivered without them? I will be asking all these questions. I can only hope that we will be happy with the answers.

It does not strike me, though, that we should be spending first, and talking later. The judiciary, HMCTS and the profession have a shared interest in ensuring that our system is fair, accessible, efficient and effective. We ought to be able to work cooperatively in pursuing reforms, and our support will be crucial if they are to work, but it still feels that this is all being done to us, not with us.

One area in which I hope we may yet see a more cooperative approach is listing. I cannot remember a time when listing in county, family and crown courts worked well for clients, victims, witnesses or the profession. We now know that listing has now been included in the court reform programme. How ambitious are the plans? Will they address the real issues, in a way that works for everyone? Most of all, will our views be sought from the outset so that they can actually influence plans before decisions have been made, and will they be listened to? You can be assured that I will be asking all of those questions too, and trying to ensure that workable reforms are made that do not focus solely on maximising judicial time in court. To whom must we look to direct on this, though, and who will make and implement any decisions? As listing is guarded jealously as a judicial function, is it the judiciary? Either way, I hope the answers and decisions will be ones we wish to hear.

Contributor, Andrew Walker QC, Chair of the Bar

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Andrew Walker QC

Chair of the Bar