On 15th September 2016 the Ministry of Justice opened its consultation into “Transforming Our Justice System”. The 36 page document, accompanied by a statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, sets out a “vision” for a radical overhaul and major financial investment in courts and tribunals in England and Wales. The plans for reform include more use of case officers for routine tasks, more decisions made “on the papers” (where a judge can consider representations without a physical hearing), more virtual hearings, and more cases resolved out of court.
The consultation document concentrated on some specific areas of reform including its “assisted digital” strategy (to help users access services), and online conviction and statutory fixed fine plans. The latter would allow for certain routine, low-level summary, non-imprisonable offences with no identifiable victim to be resolved entirely online, whereby a defendant would enter their plea to an online system. If that’s a guilty plea they would be able to view the penalty, accept the conviction and penalty, and pay their fine.
Responses were sought on online convictions and the “assisted digital” strategy by 10th November (extended after an administrative error). It is likely that many of the responses will focus on the access to justice issues and the risks of an online plea system; research by the charity Transform Justice, for example, indicates that “many unrepresented defendants do not understand whether they are guilty or innocent in legal terms – whether they have a valid defence – and certainly don’t understand the full implications of each option”.
However, there’s another major issue which is overlooked in the consultation, that of access to courts and tribunals by members of the public who are not necessarily directly involved with proceedings — this includes members of the media, NGOs and universities, but also ordinary people who wish to observe proceedings and access the information to which they are legitimately entitled.
Although the consultation document contains a pledge that the judiciary and government will “continue to ensure open justice”, access to proceedings and materials is not explored in any detail in relation to the specific reforms outlines on online convictions and “assisted digital”. It states the “principle of open justice will be upheld and the public will still be able to see and hear real-time hearings, whilst we continue to protect the privacy of the vulnerable” (p.5). This sentence points to a very important tension in complex digital environments, and one that needs overt recognition and detailed consideration when designing new access systems for online court procedures in both civil and criminal contexts.
There is mention of “transparency” in the joint statement (p.10) but only in relation to general data about proceedings (i.e. statistics) rather than with regard to access to proceedings. The Impact Assessment on Online Convictions mentions that “Listings and results would be published” (p.5, para 23) with no indication of whether this means to the open web (indefinitely?), or in a physical courtroom. If they intend to publish the full listings for all these summary only non-imprisonable offences to the open web, it is very important that the judiciary and MoJ consider the legal and societal implication of this — it is not something that has previously been done so systematically by the court.
Given that many major criminal convictions are unreported by the media owing to a lack of resource or interest, we could end up in a strange situation where there is greater access via online search for far less serious offences and this must be considered in the context of issues such as equal opportunities and potential barriers to work, as well as open justice and transparency. The MoJ, HMCTS and Judiciary should investigate a range of technological options for sharing data from courts and tribunals and should open these proposals to scrutiny through stakeholder research and official consultation.
In the annual University of Sussex Draper Lecture 2016 in London this week (8 November), Lord Justice Fulford (a summary of which may be found here) said that one option being considered was to provide viewing centres in public buildings, but these were early days and they were still looking for imaginative solutions. It would seem perverse, given the overall agenda of the reforms, for the courts not to consider digital access options that do not require physical travel to court.
On behalf of the Transparency Project I have written a submission to the consultation, raising our overall concern about the lack of attention given to open justice and access to information in these initial documents. Our submission urges the Ministry of Justice and Judiciary to provide more detail on their specific plans for physical and digital access to virtual proceedings and to open these plans to further consultation. Too often, public access to courts information is an afterthought, which leads to mistakes such as the inadvertent release of sensitive and confidential data, or insufficient information and access being made available.
Judith Townend is a lecturer in media and information law at the University of Sussex and a member of the Transparency Project Core Group.
Below is the text of my talk at the Sussex Clinical Legal Education Launch Event, which took place 5th October, 2016, at the Old Courthouse, in Brighton.
I would like to say a few words to introduce, from our perspective, what we’re doing, and why we’re doing it. Sussex Clinical Legal Education is both a practical endeavour and a new way to think about teaching law. It is practical, because it is about exposing students to the difficulties that litigants face when seeking to access justice
In The Rule of Law, Lord Bingham wrote that the “denial of legal protection to the poor litigant who cannot afford to pay is one enemy of the rule of law”. The increase in court and tribunal fees, on the one hand, and cuts to legal aid, on the other, are, to borrow the phrase from none other than the President of the Law Society, “a huge setback for justice in the UK” that will deter people from appealing adverse decisions.
But it is also an important development in the way we teach law. The Association of American Law Schools wrote, almost 25 years ago, that
Clinical education is first and foremost a method of teaching. Among the principal aspects of that method are these features: students are confronted with problem situations of the sort that lawyers confront in practice; the students deal with the problem in role; the students are required to interact with others in attempts to identify and solve the problem; and, perhaps most critically, the student performance is subjected to intensive critical review.’
Indeed, the way we see it, this is a start of a revolution in the way we think about teaching law, about our commitments to the community, and about our engagement with the legal profession in Brighton and the region.
So what are doing now? From the beginning of this academic year, we’ve started a new Clinical Legal Education module. Students on the module take part in lectures on access to justice and the role of clinical legal education as a group, but each student is also involved in one of five projects, or clinics. If you look through the brochure, or on our website, you will find some details, but very briefly, they are:
First, Citizens Advice – an exciting collaboration with Central and South Sussex Citizens Advice, led by Bonnie. Students received training with Citizens Advice, and have already been meeting with clients as part of the gateway service. We’ll be looking towards collaborating with other Citizens Advice Branches in the near future.
Second, CLOCK – in this project, led by Lara and Marica, students sit in the Court to assist litigants in person with forms, arranging court papers, suspending evictions and small claims, and finding legal advice.
Third, Employment Law Clinic – Ioannis and myself oversee students who offer free legal advice in areas of employment law. In doing so, students are supervised by external solicitors from one of four law firms that have already expressed their willingness to assist us: DMH Stallard, Fortis Law, Healys and Martin Searle.
Fourth, Family Law Clinic – here students meet with clients and offer free legal advice, supervised by a solicitor who is also a member of staff – John Jupp, in areas including family disputes, divorce, separation, children issues, co-habitation and financial matters.
Fifth, and finally, the Housing and Welfare Law project involves collaboration with two housing charities – the Brighton Housing Trust and JustLife. Alex and Lucy supervise the students, who engage with people in temporary accommodation, who have difficulties accessing benefits, and/or who are not sure what rights they have.
So as you can see, Sussex Clinical Legal Education already involves a wide range of models: students in courts, students in charities, students in the communities, students on campus. Students giving legal advice and students facilitating access to professional, legal advice.
It involves an inside-out, and an outside-in, process. Inside out – in the way we teach, what we do in classrooms, but also managing the enthusiasm from quite a few members of staff who have stepped up with ideas to develop programmes and clinics in their field of interest. These already include environmental law, creative industries, and criminal justice, for example. But it is also outside-in, by which I mean responding to approaches and needs from the community, and in particular – from our new-found friends and partners. Here we find that there is a dire, and unsurprising, need for assistance in areas of asylum and migration, which we will try and respond to.
So this is a good opportunity as any to thank project leads for the incredible amount of work they have put in for the past two years of planning; to John Jupp, John Child and Carly Brownbridge for their crucial role in steering the project; to Andrew Sanders and Sue Millns, and formerly – to Stephen Schute and Heather Keating, for their support and financial commitment on wbehalf of the school; and finally, but crucially, to our partners, in the community and in the profession: without your support we could never have gotten off the ground, and as a result of your enthusiasm we know that this only the beginning.
So clinical legal education is very much about the profession, and about the community. But it is also very much about students. Law students. Our law students. There have been quite a few studies, here and abroad that show that many students come to law school for altruistic, rather than self-interested, reasons. They want to make the world a better place, address injustices and pursue social justice. They leave law school, however, in a very different mindset, concerned mainly about, well, making money. To what extent have they just ‘grown up’, and to what extent has the law school played a role in this change of heart? Whatever the answer you give, it is clearly the case that clinical legal education helps keep the passion alive, showing students that, equipped with the power of the law, one can truly do good, and improve lives. And this is true, of course, not only in their student lives. For lawyers are gatekeepers to the realm of law – they, we, you, construct the law and also have a role in deciding how high are the walls between lay members of the community and a true understanding of their rights. This is, after all, a great deal of what access to justice is about.
Can you please join me in thanking them, and our speakers – Robert Bourns, Joe Miller and Prof Adam Tickell, for helping make this a very memorable evening.
Amir Paz-Fuchs is Director of Sussex Clinical Legal Education.
The summer of 2016 was an interesting one for those concerned with the state of access to justice in the UK. The House of Commons Justice Committee published a report that criticised the imposition of court and tribunal fees by the Government; and the Supreme Court struck down the residence test introduced by the then Lord Chancellor, Chris Grayling. Together, the message from two prominent branches of government, is a mixed one. On the one hand, it shows that the changes that the Government has put in place in recent years have been extremely detrimental for those are most in need of accessing the justice system. On the other hand, it shows that the battle is not lost. That the term – access to justice – still resonates strongly and holds sufficient sway to challenge government policies, and even to brand them as illegal. In this post, we focus on the Justice Committee report (hereafter: the report) and only note a few curious aspects concerning the Supreme Court ruling.
It is difficult to describe the Justice Committee Report as anything more charitable than a scathing critique of government policies in this area, an assessment given further force by the fact that the Committee is chaired by a member of the Conservative party – Robert Neill MP. The report seems to be bewildered not only
by the decisions themselves and the impact on hundreds of thousands of court users, but also on the amateurish structure for fee remissions and the evidence based process (or, rather, lack thereof) following which the decisions were made. But notwithstanding the importance of the process, the changes themselves are striking in their audacity, and their implications. We note here the fees introduced in Employment Tribunals [ETs, EATs], Family Courts and Immigration Tribunals, each having special characteristics.
The rise of fees had the most immediate effect in Employment Tribunals. The MoJ Impact Assessment document from 2011 reveals that these were implemented with two main aims in mind. First, a “fundamental policy aim … to transfer a proportion of the cost of running the ET and the EAT from taxpayers to the users”. In fact, by the time the fees were implemented, in 2013, the government intended to achieve full cost recovery by “charging fees reflecting, or in some cases exceeding, costs incurred…” [para 10]. Second, to encourage the resolution of disputes outside of a tribunal. While the document does not explicitly mention the aim of discouraging weak or vexatious claims, it does mention the objective of encouraging claimants to make a more informed decision about the value of their claim. Moreover, a Department of BIS report, Resolving Workplace Disputes, from the same year, said in relation to employment tribunal fees that “a price mechanism could help to incentivise earlier settlements, and to disincentivise unreasonable behaviour, like pursuing weak or vexatious claims” [p. 50]. So what is the result of all these benign motivations? The Coalition government introduced employment tribunal fees in 2013, in two categories: ‘Type A’ and ‘Type B’. Type A claims, which are considered less complicated (e.g. unpaid wages) command £160 issue fees and £230 hearing fees (£390 in total); Type B claims, considered more complex (e.g. discrimination) require £250 in issue fees and £950 in hearing fees (£1200 in total).
The effects were dramatic: an overall drop of 70% in employment tribunal claims submitted following the introduction of fees, spread across all claim ‘types’: working time (78% drop); unfair dismissal (72%); breach of contract (75%); unauthorised deduction of wages (56%); sex discrimination (68%). Moreover, if the government did indeed expect that the introduction of fees will encourage the resolution of disputes through ACAS, the law of intended consequences worked in brilliant fashion here. The Justice Commission concluded, based on a considerable amount of evidence that “far from encouraging early conciliation and resolution of disputes, employment tribunal fees were having precisely the opposite effect, because there was no incentive for an employer to settle in cases where the claimant might have difficulty raising the fee” . Indeed, an employment solicitor gave evidence that “When I advise an employer, why would they engage in early conciliation? You wait for the employee to pay a fee” . As for vexatious claims, the government had no evidence of the proportion of such claims before, or after, the imposition of fees. Moreover, since the proportion of claims rejected was very similar before and after, there is little to suggest any impact on that front. It should be noted that despite this evidence, a legal challenge to the imposition of employment tribunal fees, brought by Unison, failed before the Court of Appeals, and is now before the Supreme Court.
In family courts, fees for divorce proceedings were enhanced from £270 to £410 in 2015, and to £550 in 2016. As the President of the Family Division, Sir James Munby, noted before the Commission, there can be no behaviour changing rationale for these fees. In fact, he stated, (at ) that
There are only two things that the justice system does where you have no choice but to use the system. One is divorce; the other is probate. …. Therefore, we have a captive market… I have to say that there is something rather unattractive—particularly if one is selling justice, which one should not be doing—in battening on to the fact that there is a captive market and that, because there is no elasticity of demand, one can simply go on putting up the fees until it becomes another poll tax on wheels.
Finally, the imposition of fees for Immigration Tribunals, and specifically – the extent of the increase, seems uniquely cruel. Fees were increased to a cost recovery level: for a decision on paper from £80 to £490; for an oral hearing from £140 to £800; and new fees, of £455 for permission to appeal to the Upper Tribunal, and £510 for the hearing, were introduced. There is little surprise that the combination of new fees amounting to hundreds of pounds, a six-fold increase in existing fees, all imposed on extremely vulnerable claimants, including asylum seekers, facing the power of the state – raised concern with the Commission.
The flip side of a fee imposition regime is a fee remission structure. But here, too, the Commission finds that the government plan is flawed. Without delving into the details, the way the government calculated a claimant’s disposable income for the purpose of assessing eligibility borders on the fictitious (see ). In addition, as the Council of Employment Judges noted, the low level of income necessary for remission eligibility will exclude many low paid workers in the care, security, hospitality or cleaning industries who previously claimed – successfully – unauthorised deductions in sums that were small, but significant to them .
Finally, it is worth mentioning the ‘evidence base’ aspect, or lack thereof, that supposedly facilitated the imposition of fees. The report dedicates a full section to the way the Government conducted itself in this regard. It cites senior members of the judiciary who were “scathing about the quality of the research used by the Ministry to inform its policy formulation” . Indeed, their response refers to the research undertaken as “clearly inadequate” (para  to the response). In addition, the Master of the Rolls, Lord Dyson, has characterised the research as
“lamentable”; the Chairman of the Bar Council described it as “insignificant”; and the President of the Law society argued that it is “poor” . Apart from the sad state of affairs, the fact that a central policy is implemented with so little appreciation of its effects on people’s rights, and people’s lives, suggests that it could have only been carried out due to a dogmatic view, that renders effects and consequences as insignificant. This stubborn approach, of the “my mind’s made up, don’t confuse me with the facts” variety, is not, one would hope, characteristic of policy making in the UK in general. But the strong hold of the neoliberal agenda trumps not only concrete, discrete, policies, but also policy making procedures and the rules of the game.
This latter point leads us to the aforementioned decision by the Supreme Court, in The Public Law Project (PLP). The PLP challenged the draft order put before Parliament by the Lord Chancellor, on 31 March 2014, which introduced a residence test as a precondition for eligibility for legal aid. It claimed that the order is ultra vires section 9(2) of the Legal Aid, Punishment and Sentencing of Offenders Act 2012 (“LASPO”) and is unjustifiably discriminatory in its effects. Both claims were accepted by the High Court, and both were rejected by the Court of Appeals. Writing for the Court, its President, Lord Neuberger, reversed again. He noted that while section 9(2)(b) empower the Lord Chancellor to “vary or omit services”, they do not empower him to “reduce the class of individuals who are entitled to receive those services by reference to a personal characteristic or circumstance unrelated to the services” , which is what the draft order seeks to do. Since he accepted the ultra vires argument, he saw no need to address the discrimination issue.
Although the ruling is ‘administrative’, and thus somewhat ‘procedural’, in its focus, there are two important points that may be made. First, although it is understandable, it is also somewhat unfortunate that the Court decided not to delve into the substantive argument. As I noted elsewhere, in an analogous context (a successful ultra vires argument that led to a DWP workfare programme being struck down): procedural challenges may often be more successful, but they are short lived. Indeed, in that case, that Government simply revisited the empowering legislation, created the necessary ministerial powers, and the Minister put in place new regulations to (retroactively!) legitimise the programmes. Substantive challenges, of course, are usually less successful, but if they are – cannot be addressed through simple, administrative measures.
The second matter that arises from the decision concerns the justification given by the MoJ for this policy. Here, as with the cost recovery policy scrutinised by the Justice Committee Report, we find the footprint of neoliberal and chauvinist thinking. As the Court notes, the residence requirement was first outlined in a MoJ paper, Transforming Legal Aid: Next Steps, published in 2013. In the Equality Statement, attached to that paper as Annex F, the MoJ described the “primary objective” of the residence requirement as being “to bear down on the cost of legal aid, ensuring that every aspect of expenditure is justified and that we are getting the best deal for the taxpayer”, and further stated that “the reforms seek to promote public confidence in the system by ensuring limited public resources are targeted at those cases which justify it and those people who need it” [6.3, quoted in the judgement at ). The first quote transforms public services to market services, by suggesting a hypothetical ‘contract’ between citizens and taxpayers, effectively viewing the former as ‘consumer-citizens’. The latter quote seems to be misleading: the residence test denies legal aid to some of the most needy claimants, such as migrants fleeing horrific situations, or women fleeing domestic violence. So, sadly, the only possible interpretation of the latter statement is that the residence test is intended to fence out not those who are not ‘in need’, but those whose needs ‘we’, the taxpayers, do not wish to address.
Amir Paz-Fuchs is a Senior Lecturer, Sussex Law School