The Lord Chief Justice and the future of the law

family law

The Lord Chief Justice is the President of the Courts of England and Wales. The current Lord Chief Justice is former barrister Roger Thomas. As his full title, Lord Thomas of Cwmgiedd suggests, he is a Welshman, having been born in the eponymous village 14 miles north east of Swansea. At 68, he is a near contemporary of the second, third and fourth most senior judges in the land: respectively Master of the Rolls Lord Dyson, Lord Leveson and Sir James Munby, the President of the Family Division.

As the Lord Chief Justice, it is no exaggeration to say that Lord Thomas embodies the legal system of England and Wales, in all its finely honed complexity and its unending pursuit of justice.

Last week he appeared before the Commons Justice Select Committee to discuss the recently published Lord Chief Justice’s annual report. Reports of his appearance can be found below.

Lord Thomas, the Lord Chancellor and the Ministry of Justice are working closely together on an ambitious and far reaching project to remodel the entire civil justice system. There are radical plans afoot. These began, with the abolition of most of the civil legal aid system, removing a large swathe of the public from lawyer represented access to the courtroom.

That was only the beginning. Much more is intended to follow.

During the session, His Lordship touched upon the Government’s recent announcement of its plans to close some 86 courts throughout the country. Even though not much has been said publicly about these closures, they are pretty much a fait accompli. There is a great deal of fuss about Europe and the state of the Labour party in Parliament to distract minds.

Lord Thomas enthusiastically endorsed suggestions that in lieu of court buildings in those areas where courts would close, suitable alternative buildings could be used to stage trials and hearings. Officials are considering the use of town halls and universities. That’s a particularly interesting proposition because in Leeds, like many other places up and down the country, both Crown and Magistrates courts used to be accommodated in the Town Hall and various other surrounding non-court buildings, before modern purpose-built courtrooms appeared. I remember those days: when I first qualified my practice included criminal work in Leeds, racing round creaking courtrooms with no proper interview facilities, then going down to the grim Victorian cells beneath called the Bridewell, where they regularly used to hold teenage offenders too as there was nowhere else to put them. I remember once interviewing a pregnant teenager in those cells. She had run away from her care home and tried to kill herself after she was caught shoplifting. Then there were the makeshift family “courts” with their queues, pushing, shoving, fights and arguments outside what were designated “court rooms” that were never intended to be court rooms. The lack of respect, the lack of decorum, the refusal to accept that what was happening was indeed part of our justice system, surely those days were over? Apparently not.

Whilst Leeds has escaped the axe for the time being, other towns will be heading backwards. The Lord Chief Justice was happy to confirm this proposition when questioned by Committee member Victoria Prentis, the Conservative MP for rural Bicester. She asked him:

“…would be possible to have a court in other places, possibly coming to us once a week or once a fortnight? You could hold it in a local civic building, hotel or pub. Is that something you are keen on?”

His response?

“Yes. Yesterday I looked at the report and pictures of a judge who has an experiment doing family and civil cases. He was sitting behind trestle tables in a room to which the public had access. His account of it was that it went very well.”

There would be practical issues, he acknowledged, such as IT and security, but there were potential solutions to such problems.

His Lordship explained:

“The security apparatus of the court is designed around three things: first, a secure dock; secondly, a contract with the prison escort providers to bring people to and fro; and, thirdly, a contract with private security, in most cases, which provides security in the court. We will have to have more flexibility.”

He suggested former policemen “of reasonable age and agility” as potential candidates to provide security for such mobile courts.

That’s bad enough you might think, but sadly, there is more. Draconian moves are also planned for many of those who would use the civil courts anyhow.

The Lord Chief Justice is very keen on the plans announced last year for an online court system and virtual hearings, which he feels could help to offset the burden of rising courtroom fees.

He said:

“… the committee of the Civil Justice Council and now Lord Justice Briggs have come up with the idea of an online civil court. We are very optimistic that that can provide a solution.”

Here he reached the crux of the matter:

“At the moment, our system is designed for lawyers. It has to be redesigned so that people can do it themselves, or do it themselves with some legal assistance, or possibly an entirety of legal assistance. The online court is the solution.”

Respectfully, the legal system is not designed for lawyers. It is designed for the administration of justice. The law, being unwritten for the most part, requires interpretation by those lawyers who have trained many years for that purpose. They advise and represent each side to the best of their ability, for the benefit of a judge. The latter will, having assessed the evidence and heard the submissions, make his or her own mind up and rule on the case. There are procedural rules to regulate how it is all to be done by those lawyers. So let’s not underplay the role of lawyers in the justice system. The system is not designed for lawyers, it needs lawyers, to work properly. Without lawyers, it crashes and burns.

What we have seen since 1st April 2013, when legal aid was slashed to the bone, is clearly not what the government hoped for – ie crowds of would-be litigants heading off to mediation – but rather, large swathes of the public still going to court, stubbornly and grimly, only this time without lawyers. They are demonstrating their faith in our age-old court system and its judiciary. Unfortunately, as a result, the justice system has been grinding to near standstill. All those unrepresented litigants have put unacceptable pressure on the Judiciary and court staff. Miscarriages of justice abound. These problems we are experiencing in our courts in such numbers, with backlogs and lengthened cases, misery upon misery,  have arisen for one reason only, because legal aid was removed.

Not because of a system “designed for lawyers.” To suggest otherwise I am sorry to say, is profoundly disingenuous.

But things don’t even stop there.

With a broken system that cannot function properly without lawyers, and the public still piling into court, the whole system apparently needs to be upended: courts, judges, and procedure too – because there are no longer the lawyers to oil the wheels, and it is all costing too much money for what some may see as a chaotic, cumbersome, nil return. Unless of course, you believe the costs of the administration of justice and the resolution of legal disputes are actually incalculable.

In future, cases involving a value of up to £25k would be filed in the mooted online system allocated to case officers who wouldn’t “necessarily have to be a lawyer” and procedural rules for such cases would go. People would be heavily encouraged to settle between themselves and mediation would continue to be encouraged. So the whole nature of the court system is being radically, irreparably changed.

It seems they envisage private law family law cases also going the same way, provided a computer system can be devised that works.

The continuing fiasco of the CSA, which was designed to replace lawyers using the courts, with its help sites and various reincarnations, is of course a cautionary tale here. The CSA was run and continues to be run (and no disrespect is intended, it’s not their fault) by unqualified clerks who never sufficiently understood the tricks played by crafty spouses. They were hamstrung by over-regulation. They never understood how to be debt collectors. They were never trained to the standard that lawyers must be, and we have seen only last week how yet another much hoped-for reincarnation of the CSA is reporting woeful results. It looks set to go exactly the same way as the rest.

Can anyone truly be surprised? Replace the lawyers within the legal system and you have a recipe for disaster.

But replacing them is just what they want to do and as a result, incredibly, people, courtrooms, judges, legal practice, interpretation of the law, a fair outcome, justice being seen to be done: they are all falling by the wayside as well. In its place, we have online justice delivered by unqualified clerks to look forward to – at least for those who know how to access it. And for others, there will be court hearings held in back rooms on trestle tables with McKenzie Friends in attendance and the occasional punch-up. Clearly it won’t matter how these disputes are resolved or how close anyone gets to the law and that word that means so much…justice.

Read Lord Thomas’ evidence to the Commons Justice Select Committee here.

Photo by John Halbrook  via Flickr under a Creative Commons licence

Marilyn Stowe

The senior partner at Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers with clients throughout the country, in Europe, the Far East and the USA.

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Stitchedup - February 29, 2016 at 6:24pm

I’ve also heard that magistrates courts could return to police stations, that should make for a nice cozy relationship between the police and magistrates… Even more cozy than it is now.

Andre - February 29, 2016 at 7:45pm

As a JP I will not sit anywhere where the public cannot be present. Which will probably exclude police stations where it is essential to control access.

Andrew - February 29, 2016 at 7:55pm

That last comment was mine. Andrew, the usual suspect!

Stitchedup - February 29, 2016 at 9:22pm

Glad to hear you are a JP Andrew, you appear to have an objective view and the ability to see through much of the political correctness that is eating away at our justice system.

spinner - February 29, 2016 at 10:52pm

The reason why people are still piling into courts certainly in ancillary relief proceedings is because there are no forumla’s to decide who should get what and for how long and everything is at the discretion of the judge so people feel they have to try to make their case to get more or to defend that case. England and Wales are so backward in this regard it’s embarrassing, fix this and a large percentage of people in this area of family law at least will go to mediation and only extreme cases will end up needing to go to court as per most other countries in the world.

ObiterJ - March 1, 2016 at 4:58pm

It’s also interesting to see their plans for MacKenzie friends

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