Those who hold the purse are pulling the strings

The judiciary must adapt and deliver justice within the constraints of the legal aid budget, the Lord Chief Justice has said.

"If the political consensus is that the overall level of expenditure has to be reduced, we have to acknowledge that fact and work out how we deliver justice," commented Lord Thomas.

"If both political parties are saying, 'This is the legal aid budget,' we have to deliver justice probably in a slightly different way," he added.

Government-judiciary relations

Thomas made the comments
at a press conference on 11 November, after he was asked about how relations were between the government and the judiciary in light of the cuts and certain critical judgments that have been made since, notably Sir James Munby's comments in Re D (a child).

The president of the family division accused the state of "[washing] its hands" of the problems caused by the lack of legal aid, "for the state has brought the proceedings but declined all responsibility". The case concerned the removal of a child from the care of his parents where they were unable to represent themselves because of learning difficulties. They were denied legal aid.

In his answer, Thomas referred to human rights organisation Justice, which has been looking at the position of civil claims alongside former Lord Justice of Appeal Sir Stanley Burnton.

"I think we are going to have to do the same [as Justice] with family and come to a view on how, if parliament decides not to provide money, and ultimately it must be for the elected representatives to decide how much money they are going to provide, we can do justice properly within those constraints," he said.

When asked to elaborate on this different type of justice and his opinion on litigants in person and McKenzie Friends, Thomas said the judiciary first had to
work out what the government is prepared to offer and what needs to be done in a particular case, but that ultimately "it is a decision for those who control the expenditure".

Technological solutions

Speaking at the Royal Courts of Justice, Thomas added: "Do we need to look in certain areas at a more inquisitorial procedure? That is one solution. Do we need to use more online dispute resolution for small claims? We now have, for the first time in probably a hundred years, the opportunity for significant investment in the IT and court estate, and we need to look at how we best design it.

"Lawyers play an indispensable role in the administration of justice and we just have to work out, within monies parliament is prepared to pay and with due regard to the rights of people to justice, a system that works." However, Thomas refused to go into further detail about any possible changes to the legal system without first embarking on a public consultation.

He did, however, insist that without investment in information technology, the justice system "would face a severe crisis" and criticised the archaic operating system in the courts.

"We have not been able to use modern technology in issuing a judgment, for example. Nor do we have a proper system for people to complete claims online. It is wholly antiquated. If one can make an investment, then we can do a lot more online."

Thomas continued to hint at a future technological revolution taking place in the justice system: "If the investment goes through and we look at different ways of doing and delivering justice, we can deliver it at a cost that is less than now. How much less, and what the cuts should be, would be too difficult for me to speculate."

Open justice

Technology and further opening up the court to the public were two areas Lord Thomas felt strongly about. When asked if he was happy with filming taking place in the Court of Appeal, the only domain of justice where filming is permitted, Thomas said it had gone well (the end of October marked the one-year anniversary of broadcasting in the court), and the Ministry of Justice (MoJ) and the judiciary were evaluating the system.

Thomas also said the judiciary were making their own evaluations and looking at similar setups across the world, including Scotland, where filming has been allowed in the courts since 1992 in cases where all parties have given their consent.

In relation to full disclosure of court proceedings, Thomas said defendant anonymity in a trial is "something that should be looked at properly" and that errors in procedure "can't happen again".

Thomas was referring to the prosecution of Erol Incedal, a 26-year-old man accused of preparing a terrorist attack in London. The majority of his trial was heard privately and some evidence was heard completely in secret, measures imposed by the Court of Appeal. The Crown Prosecution Service insisted the prosecution could only go ahead once these measures were in place. Incedal was described in court only as AB.

"I really passionately believe in open justice and justice that is not open is not good justice," argued Thomas.

Judicial review

The head of the judiciary also defended the thinking behind judicial review reform and referred to what he called "a very serious problem" in the Administrative Court, which had been inundated with asylum and immigration work. "Parliament has fortunately transferred the vast bulk of that to the tribunal," he added.

"Since that has happened, we have established a planning court where we are now making decisions on planning issues where often the issue is the legality of what the government has done or a statutory appeal."

The Lord Chief Justice criticised a culture whereby judicial review was used only as a means of stalling the government.

"[Where] people could think, 'Let's start a judicial review, that will stop the government doing what it wants,' was wrong, but if the government was doing something that was not lawful and was wrong, the key to this is making certain the system actually does what it is intended to do," he explained.

He added: "One must not allow litigation to be used simply for the purpose of delay, and I hope we are in the position now to deal with that problem."

His comments echo the Lord Chancellor's thoughts in 2012, when he expressed concerns that judicial review was
being used increasingly by organisations for PR purposes.

"Often the mere process of starting a judicial review will generate a headline," said Chris Grayling at the time. "We want to go back to a system where judicial review is available for genuine claims, which provides people with access to judicial review where they need it but weeds out cases that should frankly never be there in the first place."

Non-lawyer debate

Thomas refused to be drawn
into the debate over whether non-lawyer Chris Grayling should have assumed the Lord Chancellor post, traditionally taken up by a lawyer.

"Parliament has decided he need not be and, if parliament has decided that, then it seems to me that we must respect its decision," he said.

"But our constitution does work and needs to work so that if someone may not have a particular expertise or experience, the constitution takes that into account."

Thomas was not further pressed on Grayling's lack of legal expertise, which has seen him suffer three high-profile defeats in the High Court on judicial review, and heavy criticism
from Lord Pannick who, when commenting on Grayling's proposed Social Action, Responsibility and Heroism Bill (SARAH), said: "When I see that the Lord Chancellor is bringing forward a legislative proposal, I worry about which valuable aspect of our legal system he is going to damage."

Diversity quotas

The Lord Chief Justice also denied quotas needed to be used in order to see a fairer representation of women and Black, Asian and Minority Ethnic (BAME) when discussing the judiciary's diversity efforts.

"Do I believe in quotas? I believe as long as one has taken positive action and one appreciates that results will come and they are coming, quotas are not necessary."

He continued: "There are huge disadvantages in them and other proposals that, in a sense, upset what is probably regarded as the finest judiciary in the world. Quotas are unnecessary as long as we are doing something that achieves results, and doing something we certainly are." SJ

Laura Clenshaw is managing editor of Solicitors Journal

laura.clenshaw@solicitorsjournal.co.uk