Enforcement and Dispute Resolution

Over recent weeks David Davis’s Brexit department has published seven so-called partnership papers, one of which, entitled ‘Enforcement and Dispute Resolution’, covers the role of the Court of Justice of the European Union (CJEU).

The introduction to this paper states: “In leaving the European Union, we will bring about an end to the direct jurisdiction of the Court of Justice of the European Union (CJEU). The UK and the EU need therefore to agree on how both the provisions of the Withdrawal Agreement, and our new deep and special partnership, can be monitored and implemented to the satisfaction of both sides, and how any disputes which arise can be resolved.

“EU membership has meant an intrinsic link between the EU’s legal order and the legal systems in the UK. Withdrawal from the EU will mean a return to the situation where the UK and the EU have their own autonomous legal orders. The Withdrawal Agreement and the future partnership must respect the autonomy and integrity of both legal orders.”

Theresa May has insisted that the jurisdiction of the European Court of Justice in the UK will come to an end with Brexit. The PM said the UK would “take back control of our laws.” Asked about her government’s position, Mrs May said: “What we will be able to do is to make our own laws – Parliament will make our laws – it is British judges that will interpret those laws, and it will be the British Supreme Court that will be the ultimate arbiter of those laws.”

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” And at the Tory conference last October, she spoke of a “Britain in which we pass our own laws and govern ourselves.”

Well that’s quite clear. Or is it? Critics say it will be impossible to avoid European judges having a role in enforcing new agreements drawn up with the EU. The promise to end “direct jurisdiction” in recent policy papers has raised questions about what “indirect” jurisdiction the EU court could be left with. The key question is how much influence the CJEU would retain under a bilateral agreement with the UK.

BBC Legal Correspondent Clive Coleman writes that “the EU will not sign up to an agreement which allows UK to depart from EU law to the UK’s advantage and the EU’s disadvantage on things like state aid to companies, or emissions standards. It will want a level playing field in trade and that will mean a lot of EU law as part of the agreement. The reality is that the more closely the Brexit trade agreement replicates EU law, the greater the influence of the CJEU will be.”

The pro-EU Open Britain campaign group said the government’s policy paper was a “climbdown camouflaged in jingoistic rhetoric.” The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” has led to discontent, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.

Shadow Brexit secretary Sir Keir Starmer MP says the new document contradicts the “red line” on the European Court of Justice in the PM’s Lancaster House speech. “Any final deal with the EU that protects jobs and the economy will require an effective and robust dispute resolution mechanism,” he said. “This will inevitably involve some form of independent court.”

Liberal Democrat leader Vince Cable said Mrs May’s “red lines are becoming more blurred by the day”, saying the CJEU had “served Britain’s interests well” and should not be “trashed.”

Labour MP Chuka Umunna, a leading supporter of the Open Britain campaign against a hard Brexit, said: “It appears that the Government realises that European judges will have some say over what happens in Britain, whether we are in the single market or not.”

Britain could remain under the direct control of the European court of justice for years after Brexit, and still be forced to implement the court’s rulings on vexed issues such as immigration.

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Criminal Law Solicitors Association disclosure survey

As part of its campaign, with others, to ensure that both the Prosecuting authorities and the Courts comply with the Law and Criminal procedure rules, the Criminal Law Solicitors Association (CLSA) is conducting a disclosure survey.

The CLSA has long challenged what it claims to be repeated failures by prosecutors to disclose information on time, and has begun collecting examples from solicitors to present to the Ministry of Justice, the Criminal Procedure Rule Committee and the Commons justice select committee.

The laws and rules are supposed to maintain balance, fairness and efficiency in the Criminal Justice system. The survey seeks information about experience of disclosure of evidence failings, or late service by the Prosecution, and the frequency of such failure. Specifically, the attitude of the Court when the defence have brought the disclosure failure to the attention of the Court is sought and opinion on the desirability of strengthening the requirements.

CLSA pose one particular question: “At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of CrimPR 24.13 so such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?”

According to the ‘Gazette’ the survey, which opened last Monday, has already attracted 400 responses, with 300 in the first twenty-four hours. Robin Murray, association committee member and former vice-chair, said: “The survey shows the Crown prosecution fail, on a daily basis, to do what the law requires them to, which is to serve the evidence so the defendant knows the case against them.

“When these failings are brought to the attention of the courts time and again, the courts fail to hold the prosecution to account, which means either a waste of public money because cases are adjourned unnecessarily or, far more seriously, the defence are put under pressure to proceed without reasonable notice of recently served evidence.”

One anonymous respondent in the ‘Gazette’ said: “The very mechanism that exists to give victims justice not only fails to deliver that justice but re-victimises the vulnerable all over again…There are simply not enough CPS staff or Police to process and prepare cases properly but I believe there is also an obligation on the part of the Defence to request it and they are not always as assiduous as they could be with regard to this.”

Another respondent wrote: “That the Government neither says nor does anything about this speaks volumes concerning its attitude towards justice and the rule of law in the UK. It seems to aspire to standards that wouldn’t even be acceptable in a third world autocracy.”

One more damning comment in the ‘Gazette’: “The failure of the Crown to comply with their disclosure obligation is the norm. This leads to miscarriages of justice and defendants routinely acknowledge that the magistrates’ court is no place to get justice. This has now crept into the Crown court where the defence have to constantly fight to get disclosure… In nearly every single case I have at the moment, approximately 50, the Crown have failed to comply with their disclosure obligation and I’ve had to list the case for a mention hearing.”

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Blood on our hands – part 2

Sir Justice James Munby, who sits as president of the High Court’s family division, in his judgment of 3 August said he felt “ashamed and embarrassed” that no hospital place had been found that could take proper care of an unnamed 17-year-old known as X when she was due to be released from youth custody in 11 days’ time.

The judicial intervention drew attention to the state of mental health provision in the UK. The judge said it demonstrated the “disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services.” He ordered his judgment in the private case be made public and sent to NHS England and senior Government ministers to expose the “outrage” that is the “lack of proper provision for X – and, one fears, too many like her.”

His judgment explained that the girl has made a large number of “determined attempts” on her life. She is due to be released from a secure unit, referred to as ZX for legal reasons, and doctors believe she needs to be placed in further care for her own protection. But, so far, none had been found.

None of England’s 124 places in low secure units were currently available and there was a six-month waiting list even though X was due to be released within days. Judge Munby wrote: “If, when in 11 days’ time she is released from ZX, we, the system, society, the state, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

One can imagine the reaction at senior levels in the Department of Health to this judgment, along the lines of “get this judge of our backs – fast.” And, surprise surprise, on Monday morning NHS England finally submitted a detailed plan to keep her in a low secure unit, by creating new beds from those in a psychiatric intensive care unit, instead of trying to care for her in the community. The NHS plan is now to move X this Thursday into the unit. Munby has now approved the plan which also includes new funding for her care, which requires a three-to-one staff ratio.

Sir James has no doubt that this is not a matter for congratulation. He was scathing that the decision to find her a bed only followed his outspoken warnings that a failure to do so could result in her taking her own life. He said that without his intervention last week, NHS England would not have acted as effectively or speedily.

The case of X has proved an embarrassment to the NHS in revealing the lack of resources to cope with the most extreme mental health cases. Munby himself wondered who else might be at risk as the country’s mental health system strains to deal with rising demand from young patients at a time when the supply of beds as not been able to keep up. Away from public sight some other poor patient will probably have slipped down a place to make room for patient X.

Judge Munby wrote: “We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

Nationally we stagger under the burden of four major projects of questionable value – HS 2, Heathrow, Trident replacement and a Nuclear Power station. They will each consume trillions of pounds. No wonder there is nothing to spare for the humanitarian programmes required for people like X.

And down the side of the Treasury sofa can be found £1.5 billion to persuade the DUP to support the government. How’s that for priorities.

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“Blood on our hands”

The nation will have “blood on its hands” if an NHS hospital bed cannot be found within days for a teenage girl, known only as X, who is at acute risk of taking her own life, according to the UK’s most senior family judge.

Sir Justice James Munby, who sits as president of the High Court’s family division, in his judgment said he felt “ashamed and embarrassed” that no hospital place had been found that could take proper care of the unnamed 17-year-old when she was due to be released from youth custody in 11 days’ time.

The judicial intervention draws attention to the state of mental health provision in the UK. Munby said it demonstrated the “disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services”. He ordered his judgment in the private case be made public and sent to NHS England and senior Government ministers to expose the “outrage” that is the “lack of proper provision for X – and, one fears, too many like her”.

The judge added: “We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and, dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

His judgment explains that the girl, named only as X, has made a large number of “determined attempts” on her life. She is due to be released from a secure unit, referred to as ZX for legal reasons, and doctors believe she needs to be placed in further care for her own protection. But, so far, none has been found.

Staff have warned that her “goal is to kill herself” and has intensified in recent weeks, believing that if she is sent back to her home town “it will not take more than 24 to 48 hours before they receive a phone call” saying she is dead. She has attempted to swallow items including stones, screws and clothing to take her own life. She has also attempted to use her hair and clothing to hang herself, and has self-harmed by cutting, banging her head, biting and punching her own body.

Justice Munby said staff were doing their best in a dire situation, but also said the girl’s treatment could violate articles of the European Convention on Human Rights on “inhuman or degrading treatment” and the right to private and family life. “Of course, this is all driven by the imperative need to preserve X’s life, but how is this treatment compatible with her humanity, her dignity, let alone with her welfare?” he asked.

Sir James said: “For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.”

The judgment In the matter of X (A Child) (No 3) was handed down in Liverpool on 3 August 2017 when Sir James wrote that: “If, when in 11 days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”

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Employment tribunal fees

It is some time since Chris Grayling left the post of lord chancellor but his influence continues to be felt as his poor judgments have to be reversed. Now we have another embarrassing example.

In a landmark decision handed down last Wednesday, the Supreme Court, in the case of R (Unison) v Lord Chancellor (2017), unanimously found that fees imposed under the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (‘Fees Order’), in respect of proceedings at the Employment Tribunal (‘ET’) and at the Employment Appeal Tribunal (‘EAT’), prevent access to justice and is unlawful.

As a result the government will have to refund up to £32 million to the thousands of people charged for taking claims to tribunal since July 2013, when fees were introduced by Grayling.

Fees were first imposed in the ET and the EAT by the Coalition Government in July 2013. The principal purpose of the Fees Order was to transfer some of the costs burden of operating ETs and the EAT to those who use the system. The aim was to encourage early settlement of claims and reduce the bringing of weak or vexatious claims.

The cases brought before employment tribunals in the UK range from unfair dismissal and equal pay to sex, age and racial discrimination. The total number of cases peaked in 2009-10 during the recession, reflecting an increase in redundancy related claims. Last year, employment tribunal fees generated £7.8m of income. Charging fees helped the MoJ to balance its books after the department’s budget was cut by 27 per cent in real terms between 2010-11 and 2016-17 as Grayling seemed to welcome Osborne’s austerity.

The most striking feature was the sharp drop in cases after 2012, coinciding with the government’s introduction of fees for using the service. Since July 2013, employees taking their case to tribunal have faced fees ranging from £390 (for claims such as breach of contract) to £1,200 (for claims such as unfair dismissal or sex discrimination). Appeals cost up to a further £1,600. The number of cases brought last year was 70 per cent lower than in 2012-13.

The public service trade union, Unison, sought judicial review of the Fees Order on the grounds that it unlawfully prevented or restricted access to justice. Unison sought to establish that the Fees Order was unlawful as there was a real risk that persons will effectively be prevented from having access to justice and that the degree of intrusion is greater than is justified by the objectives which the measure is intended to serve.

The Supreme Court decided in favour of Unison on both grounds. The court unanimously ruled that the fees contravene both EU and UK law and are “discriminatory” against women. The Court ruled that the fee schedule adopted prevents access to justice, and is therefore unlawful. Its concern was that the level and structure of the fees were effectively preventing employees enforcing the rights granted to them by Parliament. In their ruling, the court said: “A significant number of people have found the fees unaffordable.”

In addition it was held that fees can prevent access to justice not only where they are unaffordable, but also where they render it futile or irrational to bring a claim, since many ET claims do not seek any financial award or seek only modest amounts.

General secretary of Unison, Dave Prentis, said that the Ministry of Justice has been operating unlawfully for four years. He added: “The Government is not above the law, but when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.

“The Government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.”

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Prison reform

Prison reform was a key element of the Prisons and Courts Bill, abandoned in the run up to the general election. And it was not reinstated in the threadbare Queen’s Speech.

In his first public statement since taking up the post of justice secretary, David Lidington has sought to reassure that this apparent dropping of prison reform is not sinister. The Ministry of Justice (MoJ) published an open letter from him claiming that ‘essential’ changes are already under way to make prisons places of ‘safety and reform’.

“The work to make our prisons true places of reform and rehabilitation is already under way – and it will continue unabated,” Lidington writes. He details the work within local communities and with other services such as with Probation, Jobcentres, housing, health and drug services, local businesses and charities to provide innovative schemes and initiatives to prepare prisoners for a life after release and promises: “Only by building on this work to reform offenders and support ex-offenders will we stop the vicious and costly cycle of reoffending.

“This is my priority and as the new Secretary of State, I am committed to building on the essential reforms that are already under way to make prisons places of safety and reform.”

Stressing the importance of staffing he said: “My predecessor has already secured a £100 million a year investment for an extra 2,500 prison officers. The most recent figures show the number of prison officers in post has increased by 515 compared with the previous quarter and we are on track to deliver all 2,500 prison officers by December 2018.”

Lidington claimed that we are the first jurisdiction in the world to introduce testing for psychoactive substances across the estate. And more than 300 dogs have been trained to detect these substances.

On drones he said that the department is working with the police to catch and convict criminals using drones to smuggle contraband into prisons, and have also established a new team of prison and police officers to directly tackle the threat posed by drones. On mobile phones: “We are working with mobile network operators to tackle illicit use of phones. We have now fitted out every single prison across the estate with hand-held mobile phone detectors and detection poles to step up the detection of illegal phones on the landings. More than 150 mobile phones have been cut off since the introduction of new powers through the Serious Crime Act.”

He confirmed that “We are continuing to transform our prison estate to close old and dilapidated prisons and create up to 10,000 new places through a £1.3 billion investment.”

As reported in the ‘Gazette’, Peter Clarke, HM chief inspector of prisons, said the bill had enjoyed broad parliamentary support and had made real progress. Its absence from the Queen’s speech was a ’missed opportunity’, Clarke said, adding: “We will continue to report the harsh reality of what we find in our prisons – all too many of which are dangerous for prisoners and staff alike.”

And Peter Dawson, director of the Prison Reform Trust, said: “The decision puts even more pressure on the new justice secretary to find ways to stop our chronic overuse of prison so that this hardest pressed of public services can start to repair the damage his predecessors have inflicted upon it.”

The full text of the justice secretary’s letter can be found at:
https://www.gov.uk/government/speeches/prison-reform-open-letter-from-the-justice-secretary

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Deport first, appeal later

This week the Supreme Court ruled that the government’s system for deporting foreign criminals before they have had a chance to appeal breaches their human rights. In a landmark case concerning two foreign national criminals, the court ruled that having to appeal from abroad denied the men an effective appeal.

‘Deport first, appeal later’ was introduced as part of the Immigration Act 2014. It removes a foreign criminal’s right to appeal in the UK unless they can show a ‘real risk of serious irreversible harm’ if they are deported to their country of origin. It was designed to reduce the number of offenders fighting deportation by using human rights grounds, especially the right to a private and family life. More than 1,100 foreign criminals have been removed from Britain under the system. It was a Conservative manifesto pledge.

The ruling, handed down by the deputy president of the supreme court, Lady Hale, and four other justices, said the system breached foreign criminals’ human right to an appeal as their ability to present their case from abroad was likely to be obstructed in a number of ways.

The case involved two men convicted of drug offences who had both served prison sentences. In both cases the home secretary (then Theresa May) issued certificates that their human rights claims were “clearly unfounded” under 94B of the Nationality, Immigration and Asylum Act 2002. This had the effect of ensuring that they could only appeal against their deportation after they had returned to Kenya and Jamaica.

The court ruling says that the financial and legal barriers to the men giving their evidence live on screen are almost insurmountable. The justices say the MoJ’s failure to provide facilities abroad to enable them to give evidence means they have been deported without any human rights-compliant system in place that enables them to conduct their appeal.

Leading counsel for one of the appellants said the ruling would halt the use of the power in the deportation of foreign national criminals. “The supreme court’s judgment will very heavily limit, if not entirely curtail, the home secretary’s use of the controversial ‘deport first, appeal later’ power for ‘foreign criminals’ who wish to challenge deportation decisions on the basis that deportation will infringe the right to family or private life. The court has made clear its disapproval of the routine use of such a power,” he said.

Clive Coleman, BBC legal affairs correspondent, writes that “the ruling is a hammer blow to the Home Office. Appeals will have to be ‘effective’ and that will often mean that they have to be conducted with the appellant in the UK. ‘Deport first, appeal later’ is damaged.

“Since December, in what amounts to a ‘remove first, appeal later’ policy, the process for certifying removal before appeal has been extended to other cases such as those brought by people who are not convicted criminals, but have overstayed their leave to remain here.” He adds that the decision “is likely to have significant implications for both the deportation of foreign offenders and the removal of others who are in the UK unlawfully.”

For the government, Immigration Minister Brandon Lewis said: “We are disappointed by the Supreme Court’s judgment and are carefully considering the implications.”

Saira Grant, chief executive of the Joint Council for the Welfare of Immigrants, welcomed the ruling and said: “The Supreme Court has accepted, as we warned from the beginning, that it is almost impossible to appeal from abroad. They have also upheld the rule of law by making it clear that the Home Secretary cannot simply avoid scrutiny by removing from the UK anybody who disagrees with her decision.“

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New Lord Chancellor

In the past two years we have been privileged to serve four holders of the post of Lord Chancellor – Chris Grayling, Michael Gove, Lyn Truss and now, David Lidington.

All four have one thing in common. None is legally qualified.

The demotion of Lyn Truss to Chief Secretary to the Treasury stands out as the only senior casualty in the mini reshuffle following the general election. She has paid the price of the fury caused by her lacklustre defence of a judiciary dubbed ’Enemies of the People’ by the right-wing press over the Article 50 case.

David Lidington was elected Member of Parliament for Aylesbury in 1992 and has held a number of positions including Shadow Secretary of State for Northern Ireland from 2003 to 2007 and Shadow Minister for Foreign and Commonwealth Affairs from 2007 to 2010
He served as Minister of State at the Foreign & Commonwealth Office (FCO) from May 2010 until July 2016, the longest-serving Europe Minister in British history. He was Leader of the House of Commons and Lord President of the Council from July 2016 to June 2017. He was a staunch member of the Remain campaign.

Lidington has generally voted against laws to promote equality and human rights. In May last year he voted in favour of repealing the Human Rights Act 1998. He has also consistently voted against allowing terminally ill people to be given assistance to end their life. He has generally voted against gay rights and voted against allowing same-sex couples to marry.

Lidington has also consistently voted in favour of restricting the scope of legal aid, and for allowing national security-sensitive evidence to be put before courts in secret sessions.

His voting record also shows support for stronger enforcement of immigration rules and mass surveillance of people’s communications and activities.

Commenting on Sunday Lidington said: “Democracy and freedom are built on the rule of law, and are protected by a strong and independent judiciary. I look forward to taking my Oath as Lord Chancellor, and to working with the Lord Chief Justice and his fellow judges in the months ahead, to ensure that justice is fairly administered and robustly defended.”

In May 2009, the Daily Telegraph revealed Lidington had claimed nearly £1,300 for his dry cleaning and had also claimed for toothpaste, shower gel, body spray and vitamin supplements on his second home allowance. He decided to repay the claims for the toiletries, saying: “I accept that many people would see them as over-generous.” He was also criticised by local newspaper the Bucks Herald for claiming £115,891 in expenses in one year, almost double his salary.

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Late night courts

Last month HM Courts and Tribunals Service (HMCTS) announced that it was planning to test late night courts this month in an effort to understand how to make the system more flexible for all users.

The pilot is planned to take place in six courts over six months. Under the scheme, Crown courts at Newcastle and Blackfriars will be open until 6pm, civil courts in Brentford and Manchester until 7pm and magistrates’ courts in Sheffield and Highbury, London, until 8.30pm.

A spokesperson for HMCTS was reported as saying: “We are exploring flexible operating hours in six pilot courts to test how we can improve access to justice for everyone by making the service more convenient for working people. These pilots will help us understand how flexible hours affect all court users and will be fully evaluated before any decision is taken on rollout.”

Then came the announcement of a general election and the trial was postponed. It is a fair bet that the majority of the legal profession hope that the postponement is permanent.

The Law Society pointed out that the pilot will rely on the assistance of lawyers who have already been subject to public funding cuts and a flood of civil justice reforms in recent weeks, and warned that any proposal would require robust evaluation to assess the impact.

The Criminal Law Solicitors’ Association (CLSA) said that the announcement of the pilot scheme had been met with anger by criminal practitioners, saying that the absence of defence practitioners from the planning group “is staggering when you consider that they are essential to the smooth running of the justice system. To exclude the very people who ensure that defendants are properly represented and that justice is done is most concerning.”

The CLSA go on to say: “The prison service is currently in crisis and will be faced with dealing with prisoners having to be conveyed and booked into the prisons of an evening. The probation service will need to make officers available at extra cost as will HMCTS, the Crown Prosecution Service, mental health services and social services. Access to justice will be restricted as the “project” has seemingly failed to consider how legal representation will be made available.”

A leading chambers, Garden Court North Chambers has warned the government that remaining goodwill from barristers is running at ‘dangerously low levels.’ In a statement released this month the Manchester set condemns the idea and warns that ministers should no longer rely on lawyers to toe the line.

The Chairman of the Criminal Bar Association (CBA) said the scheme is “misconceived, impractical, an inefficient use of time and inimical to anyone with care responsibilities.” Such schemes have been trialled before and none ended well. He went on to say that the scheme will mean barristers having to work in court far later than they presently do with a serious knock on effect on their ability to prepare that evening for the next day’s cases.

The view of the CBA is that the scheme threatens to have a serious impact on the family lives of barristers who already work long hours. Many have direct childcare responsibilities which make working until 7pm or later in court completely impractical. As the bulk of childcare falls on the shoulders of women lawyers this scheme is likely to be discriminatory.

The future of this proposal is now dependent on who becomes lord chancellor. The record of recent incumbents of that post does not bode well.

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Election manifestoes

Where there is an election there are manifestoes, and both the Law Society and the Bar Council have been quick off the mark.

The Law Society has called on the next government to put access to justice at the heart of Brexit Britain. Society president Robert Bourns said: “Early legal advice prevents difficult societal and personal situations escalating. So if you’ve a problem with housing, how immeasurably better it is to solve that before you and your family become homeless – which is also likely to cost the taxpayer far more than the initial legal advice.”

On human rights, the Society wants to retain the Human Rights Act, but says that if it is replaced by a British Bill of Rights this must protect and enhance rights currently enshrined in UK law.

Regarding Brexit, the Society calls for negotiation of reciprocal rights of practice, audience and legal professional privilege for UK solicitors across the EU and in its courts. The Law Society’s calls include:

  • Reinstate legal aid for early advice, particularly in housing and family law.
  • Negotiate access for UK lawyers to practice law across the EU, base themselves in the EU, and have rights of audience and legal professional privilege in EU courts.
  • Ensure civil justice co-operation is maintained with the EU in the interest of consumers, families and businesses.
  • Combat modern slavery by enforcing the Modern Slavery Act 2015 and allocating the necessary resources to protect victims.
  • Scrap the current employment tribunal fee system.

Echoing the Law Society’s manifesto, the Bar Council says the government must review the consequences of the Legal Aid, Sentencing and Punishment of Offenders Act, which greatly cut back the scope of legal aid. “The loss of nearly £1bn legal aid support has effectively disenfranchised a whole sector of society from obtaining access to justice. Government should reintroduce legal aid to assist vulnerable citizens who are currently left to fend for themselves…Justice is not a commodity and should never be a luxury available only to those who can afford to pay for it. Justice is not like any other public service.”

In a thinly veiled attack on Liz Truss, the Council stresses that the next lord chancellor must be someone whose “experience is combined with the requisite authority among ministerial colleagues to defend the independence of the judiciary.”

On Brexit, the Bar manifesto warns that: “Unless a strategic plan for the future of our legal services is devised and delivered, our exit from the EU will damage the international market value of the legal services sector, and undermine acquired rights and protections for our citizens and for our environment.” In exiting the EU, the government must develop a strategy for the legal services sector which recognises the value that Britain’s legal services contributes.

The Bar Council calls on the government to provide appropriate funding which recognises the value of the judiciary and those who work for the administration of justice so that standards of excellence can be achieved; and invest in infrastructure by making proper investment in the infrastructure of justice.

In addition, the government must remedy poor decision-making by those in authority who deal with vulnerable members of society. “For example, approximately half of those detained in immigration detention centres ought not to be there as is demonstrated by charities which provide legal assistance to those who cannot use lawyers.”

The Bar Council’s manifesto ‘The Value of Justice’ can be found at: http://www.barcouncil.org.uk/media/566731/manifesto_for_justicefinal.pdf

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