Sunday 30 December 2012

Predictions for 2013?

Will JSB pass the Commons? (Yes)  Will HMG accept the Lords amendments (Hope so).

Will somebody do something to halt the abolition of the County Courts? (No)

Will HMG fully implement Leveson? (Yes- quickly please)

Will employment law get more bonkers? (Yes)

Will Assange leave the Ecudorian embassy? (No)

Will Jackson see a flury of CFA funded large group actions started on 31st March? (Yes)

Will the Chief Coroner carry on being a good thing? (Yes)

Will HMG damage JR by reform and do nothing about the immigration log jam? (Please no)

Keep an eye on Sumption JSC - he's had time to settle in - we may see some interesting judgments this year.....

Lots to look forward to...................

Congratulations to Dame Ursula Brennan, PUS at MOJ on her honour, to the Recorder of London on his CBE, to the Chief Crown Prosecutor for London on her CB, to Rustom Tata (solicitor) on his MVO, to Cherie Booth QC on her CBE, to Isobel Letwin (Solicitor Department of Health) for her CBE, to Marilyn Darg, chair of the bench of North Somerset Magistrates Court on her MBE and likewise to Mrs Jennifer Farmer MBE JP.


Wednesday 12 December 2012

Why shouldn't journalists be subject to statutory regulation?

There are lots of sacred rules that govern our society.  For example, we require lots of important classes of people to be independent, and crucially to be free from political interference.  For example -  Judges, Chief Constables, Barristers, Her Majesty's Inspectors, Doctors etc etc. None of them however, is free from statutory regulation.  Their powers, duties, conduct, ethics and the enforcement of these derive from statute, (or from common law which could easily be replaced or amended by statute).  The Lord Chief Justice (and to some extent the Lord Chancellor) disciplines and regulates the judiciary, pursuant to statutory powers.  Doctors are disciplined and regulated by an independent regulator created by statute and itself regulated by HMG via the Privy Council (that's the body which advises HMQ to grant Royal Charters - before anybody gets excited about using a Royal Charter to set up the new press regulator).  Barristers are about as fearlessly independent as professionals get, but are regulated by an independent body which finds its powers and its own regulation in statute.  Why has statute been used to regulate these important independent entities? Because it is important:  The role of law is primarily to facilitate a peaceful and cohesive society by rhetorically stating that bad things are bad and providing the State with coercive powers to prevent and punish bad things and those who do them.  The Leveson Report has catalogued lots of bad things which journalists (and others) have done. A lot of those bad things can already wind you up in a criminal court.  To that extent journalists are already subject to the statutory regulatory control of the criminal law.  It is clear that such minimal regulation is insufficient.  Some strong medicine is necessary.  Bad Judges, policemen, barristers, doctors etc are dangerous, they can kill people or at least destroy or damage lives, livelihoods and property. That's why statute permits independent regulators to investigate and expurgate such malefactors. Turns out that bad journalists can also do bad things with similar consequences.  Why shouldn't such bad journalists be investigated, adjuged and thrown out of their profession?  Why would such a statutory system inhibit the fundamental freedoms of the press any more than the ability to discipline a judge, strike off a doctor or hound a bad Chief Constable out of his job inhibits the freedoms and independence of such important lynch pins in our society.  The professional rule which prevents me from misleading the Court (lying) keeps me on the ethical straight and narrow - but it does not inhibit my treasured professional independence. An ethical rule which required journalists to have some shred of evidence before publishing, would not curtain their freedom to publish once they had some evidence on which to base their story.  We are talking about a basic code of ethics; something every profession should have and where the profession has an impact on society, the enforcement of that Code must be by a statutory mechanism. The claim to immunity from statutory regulation currently being made by journalists is unsustainable and unsupportable.  Their claim to freedom is of fundamental importance to our freedom, without them, our freedoms would wither.  But their freedom does not extend to a freedom to do bad things with impunity - they are as subject to law and to its regulation as the rest of us.  Journalists have a right to write and be free from censorship and from political interference; but they have no right be free from and to be above the law.  They would be the first to launch into a scathing headline on the front page if another profession claimed such an immunity; they have no privilege from such criticism.   

In short, Leveson needs implementing in full and quickly.

Wednesday 5 December 2012

Abolition of county courts goes through on the nod.....RIP

The abolition of county courts does not seem to have registered at Report stage in the House of Lords yesterday.  The Labour Justice spokesman and former partner of Beecham Peacock solicitors made some half-hearted comments (he seemed to be a little distracted by the Court of Protection), to which Lord McNally for HMG (non-lawyer career Labour politician turned SDP -Lib Dem defector and currently Lib Dem Justice Minister) briefly replied:
Another area of concern relates to some of the processes involved under the single court that now exists. We have county court buildings and we have a single county court. In principle, there is nothing wrong with that but, as I pointed out in Committee, the Government have not really followed the recommendations of Lord Justice Jackson, whose report, as we have noted on previous occasions, has been cherry picked in a variety of instances. In this case, the concern arises out of the problems of litigants and their legal representatives issuing proceedings. Lord Justice Jackson proposed that there should be regional court centres but, as he said clearly, it would,"be wrong to compel everyone to issue proceedings at regional centres. Litigants who wish to issue claims in person at their local county court and to pay fees at the counter should be free to do so".

That does not happen, which has serious consequences.
I referred in Committee to the problems at the Salford Centre in particular, which is where money claims are issued. The Minister replied, no doubt on the basis of advice tended to him, that things had started slowly but were getting better. Yet the Law Society Gazette on 25 October reported:

"Almost two-thirds of users of the Salford civil claims centre rate the service as poor",

and a third considered that it got worse rather than better over the past few months. One contributor in a comment to the Law Society Gazette said:

"Salford is a good example of the Government trying to deal with things in a very proficient and one stop shop way. In reality its a total disaster which needs overhauling urgently and made to be more accountable and efficient. Starting with the right staffing levels would help, as well as more dedicated phone staff and someone who even answers in a reasonable time".

Solicitors frequently complain about having to wait for two, three, weeks or perhaps more for their claims to be processed. That cannot be satisfactory.
We have a situation in which in its various component parts the system is under great pressure. That is exacerbated by some of the changes that the Government, for their own no doubt worthy reasons, have sought to bring into effect. I cannot agree with the answer given by the Minister on the last occasion that there was a system of reporting that in its component parts meets the requirements of a thoroughgoing review. That is particularly in relation to what is happening to access to justice for litigants of all types and the efficient processing of their claims, and in relation to the Court of Protection for the long-term arrangements for effective supervision of its substantial case load of vulnerable people.

Equally, we believe that a single county court will provide a more efficient civil justice system that is fit for the 21st century and where litigants can achieve a more efficient, proportionate and speedy resolution to their disputes. By removing the district boundaries that surround each individual court, the single county court will address restrictions that limit the way customers engage with the courts. Access to justice will be increased as it enables the Courts and Tribunals Service to introduce more modern means for citizens to engage with courts in the most cost-effective way.

How will citizens engage with the County Court if their local court has been abolished?  If there is to be a National County Court - there should be at least a minimum number of hearing centres in each circuit/region/county or even town/city?  The bill would allow HMG to reduce the county court to no hearing centres at all - just online and telephone - that sounds ridiculous - but is it out of the question?????  

Lord Pannick and Lady Butler-Sloss were in the House, but did not intervene on this subject.  

Given that the House of Commons is unlikely to get excited about this issue - that's probably it for the county court as we know it.  


Monday 3 December 2012


This may be a sentimental.  It may not be as exciting and as fundamental as the Justice and Security Bill.  It has nothing to do with Leverson.  Tomorrow the House of Lords should get round, at report stage, to considering whether to abolish all the little local county courts in England and Wales (a long lost old favourite - West London pictured here) and replace them with one national monolith - at the moment HMG is under a duty to provide a county court for every district:

1 County courts to be held for districts

(1) For the purposes of this Act, England and Wales shall be divided into districts, and a court shall be held under this Act for each district at one or more places in it; and [each court] shall have such jurisdiction and powers as are conferred by this Act and any other enactment for the time being in force.

(2) Every court so held shall be called a county court and shall be a court of record and shall have a seal.

Look at the new version of section 1, County Courts Act 1984 - clause 16 of the Crime and Court Bill:

A1 Establishment of a single county court
(1) There is to be a court in England and Wales, called the county court, for
the purpose of exercising the jurisdiction and powers conferred on it—
(a) by or under this or any other Act, or
(b) by or under any Act, or Measure, of the National Assembly for
(2) The county court is to be a court of record and have a seal.”
(2) Sections 1 and 2 of that Act (county courts to be held for districts) are repealed.

HMG have cut back on Courts -  see here from 2010 - but this is bit more radical than closing down a few old buildings and little used courts - this is wholesale abolition.  Of course the new national court will need local hearing centres which no doubt will use the existing county court estate - but there will no long be any legal binding obligation to hold a county court in particular place.  There will be no need to consult or lay a statutory instrument before Parliament - that is the current set of hoops which HMG must go through before shutting a county court - in future there will be no such bar.  I suspect that The County Court will sit with employment tribunals, magistrates, social security, immigration and other tribunals in one big rush for ever decreasing resources.  Is that really a good idea?  Can the system cope?  Shouldn't there be some sort of obligation to hold a local court in large cities and towns????

I have successfully campaigned to keep the oldest civil court in the land open - Mayors and City - see here for previous success - 

Para 24, Sch 9 of the Bill?

Omit section 42(2) and (3) of the Courts Act 1971 (City of London to be a
county court district, and the county court for that district to be known as the Mayor’s and City of London Court).

That got me quite cross.

Come on House of Lords - when you debate this tomorrow - someone propose an amendment to prevent HMG having carte blanche to mess around with county courts as they see fit.  I am all for closing underused inefficient courts - but there needs to be some process for closing courts,  some scrutiny and  some guarantee of some service somewhere?

I look forward to reading Hansard on Wednesday....