The Ministry of Justice has released its response to the comments generated by the consultation paper on judicial review that was published in December. Unsurprisingly, the Government has signalled that it intends to press ahead with most of the proposals upon which it consulted. In particular, it plans to implement the following proposals:
Time limitsThe time limit for judicial review (which at three months is already very short) will be reduced to six weeks in planning cases and thirty days in procurement cases. The Government recognizes that these timescales are so short that compliance with the Pre-Action Protocol will be impossible, so it will invite the judiciary to disapply the Protocol in such cases. Given that one of the objectives of the Pre-Action Protocol is to encourage pre-litigious resolution of disputes, it is not clear how this will promote the Government’s objective of reducing recourse to litigation.
The traditional role of judges is to speak out in court and stay silent outside of it. But the relatively new head of the family courts, Sir Nicolas Wall, has set a strong example of judicial outspokenness, and it appears that the other judges are following suit in the face of large cuts to the family justice budget. That being said, Mr Justice Coleridge has been a vocal advocate for family justice reform for a number of years.
Amendments to CPR r.39.2; new Guidance issued by the Master of the Rolls; and a recent High Court decision refusing anonymity to a claimant prompt this review of anonymity orders in personal injury proceedings.
You act for someone who is vulnerable as a result of a serious brain injury. Her claim has been settled, and as a result your client is due to receive a large award of compensation, of several million pounds. The Court’s approval of the settlement is required (under the Civil Procedure Rules r.21.10). There is a concern that if there is publicity about the award your vulnerable client will be targeted and exploited by unscrupulous individuals. However, principles of open justice, and rights under Article 10 (freedom of speech), are engaged and favour unrestricted reporting of court proceedings.
In W (Algeria) (FC) and BB (Algeria) (FC) and others v Secretary of State for the Home Department  UKSC 8 – read judgment
The Supreme Court has made a difficult decision. It is sometimes said that hard cases make bad law: this ruling may prove to be a good example of that cliché. The court was not being asked whether the Special Immigration Appeals Committee (SIAC) was legally allowed to issue orders that means evidence “will forever remain confidential” but rather the question was, “can SIAC ever properly make an absolute and irreversible order.”
The principles of open justice would tend towards the answer being no – but the court prioritised the welfare of the witness and allowed the order.
In the previous post under this topic, I referred to Mr Justice Binnie’s proposal for the exercise of the standard of reasonableness review in the 2007 case of Dunsmuir v New Brunswick. This would eventually resurface in Vavilov, where the majority of the Supreme Court of Canada held that the starting point should be a presumption that the reasonableness standard applied. In the interim, there had been much academic, practitioner and judicial commentary on the lack of clarity and consistency in the application of the principles espoused by the majority in Dunsmuir in subsequent cases and on the difficulty in applying such principles in claims. Members of the Supreme Court also expressed concerns in subsequent cases, for example, Abella J in Wilson v Atomic Energy of Canada Ltd 2016 SCC 29. The majority in Vavilov explicitly refers to such criticism coming from the judiciary and academics but also from litigants before the Court and organizations representing Canadians who are affected by administrative decisions. As the Court stated,
These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence.
The Court also referred to concerns that the reasonableness standard was sometimes perceived as “advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”.
Although clearly accidental, the timing may suit the justice secretary, who has received criticism from within his own party in relation to his plans to send thousands fewer offenders to jail in the coming years. The MoJ have said:
The green paper on sentencing and rehabilitation sets out plans to break the destructive cycle of crime and prison by ensuring that jails become places of hard work, that rehabilitation programmes are opened up to innovation from the private and charitable sectors, paid by results, and that the priority will now be to reduce the reoffending by people after they have been punished.
In a significant adverse judgment for child abuse claimants, DFX v Coventry City Council  EWHC 1382 (QB), Mrs Justice Lambert rejected a claim brought by a number of claimants who alleged that the defendant council’s social services negligently delayed in instigating care proceedings and that had they been removed from the family home earlier they would have avoided serial abuse at the hands of their parents.
The factual background was that save for a hiatus between June 2001 and February 2002, the defendant’s social services department had been engaged with the claimants’ family throughout the 15 years from 1995 to 2010. Between 1996 and 1999, the first and second claimants were on the child protection register and, between March and September 2002, all of the claimants were on the register. In April 2009, the defendant issued care proceedings in the Coventry County Court. Initially, the removal of the children was sought under an emergency protection order. This was not successful. An interim order was in March 2010 removing all of the children, save for the eldest (a boy, by then aged 17), into foster care. In June 2010, full care orders were made and care plans removing the eight children from the family were approved by the court.
The claimants’ case was that they each suffered abuse, including sexual abuse, and neglect whilst in the care of their parents before their removal from the family in 2010. The claimants alleged that their parents were unfit to be parents and that this should have been obvious to the social workers involved with the family. Between 1992 and 1997, the father was convicted of four offences of indecency towards teenage girls. He had learning difficulties and had limited insight into his offending. The mother also had learning difficulties and it was alleged that she demonstrated repeatedly that she was either unable or disinclined to protect the claimants from their father or from predatory men who visited the home. The risks to the children were increased by the presence in the home of the maternal grandmother who lived with the family until March 2004. She also had learning difficulties and was associated with three “risky adult” men who visited the home. The home was often squalid and the children dirty and unkempt.
For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night. The full speech can be read here.
The Ministry of Justice (MoJ) is to cut £2bn from its £9bn or so budget. But where will this 20% cut come from?
Kenneth Clarke’s MoJ are said to have got in early in agreeing spending reduction targets with the Treasury, and yesterday it was reported by the Public and Commercial Services Union that senior staff were informed by email that the cuts will amount to around £2bn of the overall budget. The Union suspect that around 15,000 of the MoJ’s 80,000 staff may have to be axed.
However the MoJ makes the cuts, a reduction of around 20% is likely to have severe effects on access to and provision of justice in the United Kingdom. Various MoJ-funded bodies have already been lining up to explain why their departments could not survive on much less. The criminal legal aid system has long been said to be in crisis, the President of the Family Division indicated last week that the child protection system is in grave danger of imploding, and the Chief Executive of the Supreme Court has said the cuts could cripple the new court.
On October 2 at 10am, the United Kingdom Supreme Court held an hour long pre-term press-briefing to mark the opening of the Court’s fifth year. This blog looks not only at what was said by the Court, and asked by the journalists on the day, but also what was then reported.
The Supreme Court’s relationship with the media is marked by the same combination of common interests and tensions which mark the media’s relationship with any other public body. Yes the Court wants media coverage; and a function of the media is to cover the Court. The media though will always want more than its subjects are looking to give up, and not only that, will often frame how the subject is presented according to each outlet’s particular agendas. Further, the Court, and its justices, will also have their own goals about what messages should be highlighted.
A bank requires its would-be recruits and some of its existing employees to undergo a medical. It sends them to the home of one particular, self-employed doctor. There, they undergo a medical examination, unaccompanied by anyone from the bank.
The doctor completes the bank’s proforma examination form, headed with its logo and entitled “Barclays Confidential Medical Report”. The form is detailed. It includes sections on chest “Inspiration” and “Expiration”, “Abdomen (including Genito-Urinary System)”. It contains a section for “Female applicants only”, asking whether they have suffered from menstrual or pregnancy disorders.
Following Dr Bates’ death in 2009, 126 women came forward alleging that he had abused them during medical examinations carried out on behalf of Barclays between around 1968 and 1984. The police concluded in 2013 that, had he been alive, there would have been sufficient evidence to pursue a criminal prosecution against him.
The Lord Chief Justicehas announced the appointment of Mr Justice Tugendhat as Judge in charge of the Jury and Non-Jury Lists with effect from 1 October 2010. This makes him the senior ‘media judge’ in England and Wales, and he will play an important role in balancing rights to privacy against freedom of expression.
The Jury and Non-Jury lists contains general civil law, including defamation and privacy. The Judge in charge has responsibility for managing the work in the lists and assigning judges to cases.
Faced with mounting criticism of his reluctance to impose restrictions on British society in the face of the Covid-19 crisis, this evening Boris Johnson ratcheted up Britain’s response by announcing a strict lockdown across the country. His address to the nation is available in full here.
The UK Supreme Court Blog has posted an exclusive interview with Baroness Hale, the Supreme Court’s only female judge. The interview is worth reading in full but I would like to highlight a few of her comments which are relevant to human rights.
By way of background, Baroness Brenda Hale is the first and only woman who sits in the UK’s highest appeal court. She came to the bench after a career in academia and a post at the Law Commission. As she admits in the interview, he areas of interest – such as family law, human rights and equality law – are quite different from those of the other justices who mostly come from a commercial law background.
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