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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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Extended court sittings

A new pilot scheme from HM Courts & Tribunals Service (HMCTS) will introduce extra sittings at civil, crown, and magistrates’ courts to increase the number of cases seen each day.

The pilots are expected to begin in May, in six courts over six months. The six pilot courts are: Newcastle and Blackfriars Crown court; Sheffield and Highbury Corner magistrates’ court; and Brentford County Court and Manchester Civil Justice Centre. The plans will see the crown court sit until 18:00, civil courts until 19:00, and magistrates until 20:30.

The ‘Gazette’ reports that a spokesperson for HMTCS said: “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.”

The HMCTS spokesperson said flexible operating hours are just one aspect of the government’s plans to transform the justice system, which include increased use of virtual hearings. “We are investing over £1bn to reform our courts to deliver swifter justice, that is modern, more accessible and better meets the needs of all court users. 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,” the spokesperson said.

The Bar Council has urged HMCTS to ensure that the impact on parents, and women in particular, is built into the evaluation criteria used to test the success of the pilots.

Quoted in ‘Solicitors Journal’, the chairman of the Bar, Andrew Langdon QC, said the biggest impact of these changes will fall on women barristers. “These arrangements will make it almost impossible for parents with childcare responsibilities to predict if they can make the school run or to know when they will be able to pick children up from the child-minders,” he said.

He added: “Childcare responsibilities still fall disproportionately to women, many of whom do not return to the profession after having children. It is hard to see how these plans sit with the government’s commitment to improving diversity in the profession and the judiciary. The profession and the judiciary must reflect the communities they serve. We need measures that will help women stay in the profession, rather than make it even more difficult to be a mother and a barrister at the same time.”

Richard Miller, head of justice at the Law Society, said that previous experiments did not find sufficient benefits. “An effective pilot would have to maintain a clear focus on impact – whether on members of the public using the court service or professionals providing advice and representation. This includes advising people making or defending civil claims, those involved in criminal proceedings or family court services,” he said.

He added: “We welcome the assurance this pilot will be subject to a robust evaluation before any decision is taken to roll out the scheme. We look forward to getting more detail from HMCTS – both about the pilot and about how they will evaluate it.”

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Family courts allow abusers to torment their victims

The head of the Family Division, Sir James Munby, has called for a bar on victims of domestic violence being cross-examined by the alleged perpetrators in court. The practice is not permitted in criminal courts. He said: “Reform is required. I would welcome a bar. But the judiciary cannot provide this, because it requires primary legislation and would involve public expenditure. It is therefore a matter for ministers.”

Liz Truss, the justice secretary, is said to share his concerns about how the family courts can enable perpetrators of domestic abuse to continue their intimidation and harassment through the court system. A senior Ministry of Justice source said: “This is a matter we are extremely concerned about and looking at as a matter of urgency.”

Comprehensive evidence obtained by the ‘Guardian’ has revealed how the family court allows men with criminal convictions for abusing their ex-partners to directly question them; is able to ignore restraining orders imposed by the criminal courts to protect the women; and allows fathers, no matter how violent or abusive, to repeatedly pursue contact with children and their mothers. The evidence also shows that the family court can ignore expert evidence that women are at risk from abusive men and fails to adequately protect vulnerable victims of domestic and sexual abuse.

Women are often cross-examined by violent ex-partners in secretive civil court hearings. Those who speak out risk being held in contempt of court for discussing what went on in their private court hearings, but said they wanted to shine a light on what was going on in the system.

The immediate problem is another of Chris Grayling’s chickens coming home to roost. To satisfy the austerity demands of George Osborne (remember him?) Grayling took the axe to his department’s budget. Legal aid is now denied in most family cases. The main exception is for a victim of domestic abuse. Cuts of more than 30% are crippling access to all sorts of justice.

The number of people going to court without a lawyer has been rising since access to legal aid was cut severely in 2013. The less well off and those with children are more heavily represented in those litigating in person than any other group.

Research by the charity Citizens Advice has revealed that the stress, responsibility and loneliness of going to court without representation can mean ‘Litigants in person’ (LiPS) achieve worse outcomes compared with their represented counterparts.

It also showed 90% of people who had been LiPS found the experience negatively affected their health, relationships, work or finances. Figures from the MoJ in October 2016 reveal that in 80% of family court cases, at least one individual had no lawyer.

The justice secretary has set up an emergency review to find the quickest way to ban perpetrators of domestic abuse from directly cross-examining their victims within the family court system. The research paper being prepared is due to be completed by the end of next week. It will examine whether primary legislation is necessary to end perpetrator cross-examination, or whether it could be stopped through the provision of more legal aid.

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Personal Injuries proposals

In a move described as ‘heavy handed, excessive, and disastrous’ the Ministry of Justice announced last week that it plans to either scrap the right to compensation or, alternatively, put a cap on the amount people can claim for minor soft-tissue injuries. Capping whiplash compensation would see the average pay-out cut from £1,850 to a maximum amount of £425.

MoJ also said it would raise the limit for cases in the small claims court for all personal injury claims from £1,000 to £5,000. Read the full story

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Digital security ‘chaotic’

The National Audit Office (NAO) has issued a damning report of the UK government’s approach to digital security.

The central teams and departments dedicated to protecting information were found to be operating without cohesion and governance. There are 73 teams and 1,600 staff across government with data security responsibilities. However there was a lack of awareness among staff about who to contact for guidance, the NAO said.

The 17 largest departments recorded 8,995 data breaches in 2014-15, but only 14 were reported to the Information Commissioner’s Office. HM Revenue and Customs was the worst offender, with 6,041 breaches and just three reported to the ICO. The Ministry of Justice had 2,801 breaches and also reported just three to the ICO.

According to the NAO, reporting personal data breaches is chaotic, with different mechanisms making departmental comparisons meaningless. In addition, the Cabinet Office does not have access to robust expenditure and benefits data from departments, in part because they do not always collect or share such data. The Cabinet Office has recently collected some data on security costs, though it believes that actual costs are ‘several times’ the reported figure of £300 million.

Protecting the information departments hold from unauthorised access or loss is a critical responsibility for departmental accounting officers. Departments are, however, increasingly required to balance this responsibility with the need to make this information available to other public bodies, delivery partners, service users and citizens via new digital services. And increasing dependencies between central government and the wider public sector mean that the traditional security boundaries have become blurred.

The report says that the Cabinet Office has not yet established a clear role for itself in coordinating and leading departments’ efforts to protect their information. The report found that its ambition to undertake such a role is weakened by the limited information which departments collect on their security costs, performance and risks. Too many bodies with overlapping responsibilities operate in the centre of government, confusing departments about where to go for advice.

The Cabinet Office also came under fire for failing to establish leadership in the area and was criticised for its lack of security. “The increased security requirements, for example around encrypting data, proved problematic and too costly for many local authorities,” the NAO noted.

A Cabinet Office spokesperson said the majority of the data breaches cited in this report were “very minor”, but acknowledged it needed to do more. “So we are already well under way in strengthening oversight of information security by bringing together nine separate central teams into just two. We have also appointed the government’s first ever Chief Security Officer to bring together all disciplines of government security under central leadership,” he added.

“Protecting information while re-designing public services and introducing the technology necessary to support them is an increasingly complex challenge,” said Amyas Morse, head of the NAO. “To achieve this, the Cabinet Office, departments and the wider public sector need a new approach, in which the centre of government provides clear principles and guidance and departments increase their capacity to make informed decisions about the risks involved.”

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The Lord Chancellor

When appointing a Lord Chancellor what was once rare is now almost routine.

The Coalition government in 2010 appointed Chris Grayling to the post, which is also that of Secretary of State for Justice. He was the first non lawyer to be given the job since the middle ages. It showed.

In the reshuffle following the 2015 election Michael Gove got the job. He also is not legally qualified. He made a promising start, clearing up some of the mess left by Grayling, and promising reforms. He became one of the more sensational casualties of the post referendum chaos as he was cast into the political wilderness.

Now Liz Truss has got the job. Also not legally qualified, she is the first female Lord Chancellor in the thousand-year history of the role. 41 today, she has been MP for South West Norfolk since 2010. Rapid promotion saw her appointment as Parliamentary Under-Secretary of State from 2012 to 2014, with responsibility for education and childcare. She became a member of the Cabinet as Secretary of State for the Environment, Food and Rural Affairs in 2014. On 14 July 2016 she was appointed Justice Secretary and Lord Chancellor by new Prime Minister Theresa May.

According to George Monbiot in the ‘Guardian’, interviewers have said that she is “indissolubly wedded to a set of theories about how the world should be, that are impervious to argument, facts or experience. She was among the first ministers to put her own department on the block in the latest spending review, volunteering massive cuts.”

She set courts reform as one of her top priorities during the traditional swearing-in ceremony. She also stressed she was a great supporter of reform and modernisation through the courts and tribunals system. “That urgent task will be high on my agenda in the months ahead, as I know it is for senior members of the judiciary,” she added.

Her appointment has not met with a uniform welcome. As one disgruntled contributor to the ‘Gazette’ plaintively wrote “Why do the Tories persistently want to pee off the profession by making non lawyers Lord or Lady Chancellors. It is frankly insulting.” More officially, the Tory chair of the Commons justice select committee, Bob Neill, has become the latest senior political figure to question her credentials.

As reported in the ‘Gazette’, he said “My concern is this: while it’s not necessary for the lord chancellor to have a legal background, they have a specific role under the Constitutional Reform Act to represent the interests of the judiciary and to represent the judiciary, including its independence within government.

“It helps if the person in charge has been a lawyer or has been a senior member of the cabinet. I have a concern, with no disrespect to Liz, that it would be hard for someone without that history to step straight in and fulfil that role.”

Neill’s comments follow a claim by former shadow lord chancellor Lord Falconer that prime minister Theresa May broke the law in appointing Truss. Writing in the ‘Times’, Falconer said: “The lord chancellor has to be someone with the weight and stature to stand up to the prime minister or the home secretary when, for instance, they want to compromise on complying with the law in an attempt to placate the public. Or when the politicians are determined to blame the judges when their policies go wrong.”

Lord Faulks said last week that he resigned as Lords justice spokesman over fears that Truss would not have the necessary leverage to challenge the prime minister over crucial issues such as judicial independence.

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Civil legal aid

Legal aid will no longer be made available for cases with poor or borderline prospects of success that may have received funding, the government has said.

Last week the Legal Aid Agency (LAA) announced that there would be a new approach to making decisions on prospects of success for ‘poor’ and ‘borderline’ cases. The LAA has changed its approach to assessing merits in civil legal aid to take account of the Court of Appeal judgment in The Director of Legal Aid Casework (DLAC) and Lord Chancellor v IS. The Court of Appeal ruled last month that the agency’s exceptional case funding scheme and merits regulations were lawful.

Although the Court of Appeal ruled in the lord chancellor’s favour, several observations were made about the government’s exceptional case funding scheme. The LAA said that the MoJ was considering what steps to take following the court’s findings.

Under the current merits criteria most cases need to pass a ‘prospects of success test’ before legal aid can be made available. The LAA said:

“The merits criteria state that the prospects of success test is met in cases with ‘poor’ prospects or ‘borderline’ cases where:

  • funding is necessary to prevent a breach of a client’s rights under the European Convention on Human Rights, or any rights of a client to the provision of civil legal aid or services that are enforceable under EU law; or
  • DLAC considers it appropriate to find that the test is met having regard to any risk of such a breach.”

The change comes as a result of the Court of Appeal finding that it is lawful for the prospects of success test to have a 50% threshold, and this does not breach a client’s rights. “As a result, we are now no longer funding any applications for civil legal aid that are subject to a prospects of success test where the prospects are assessed as poor or borderline,” the LAA said.

The LAA added: “We have also reinstated delegated functions to allow providers to refuse legal aid in cases that they assess as having poor or borderline prospects. This allows Immigration providers to refuse applications for controlled legal representation in these matters without having to revert to us first.”

The ‘Gazette’ reports the Law Society as saying that the change could mean fewer people being entitled to legal aid. “We are therefore disappointed that the Ministry of Justice decided to announce this significant change so soon after the referendum, and without consultation,” a spokesperson for the Society said.

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JSC report on courts and tribunals fees

The Justice Select Committee (JSC) is appointed by the House of Commons to examine the expenditure, administration and policy of the Ministry of Justice and its associated public bodies. On Monday the committee published its second report, on Courts and tribunals fees.

The JSC said: “First, although it is a legitimate position to object to any court fees being charged to litigants, that is not a position we share. Some degree of financial risk is an important discipline for those contemplating legal action, and a contribution by users of the courts to the costs of operating those courts is not objectionable in principle: the question is what is an acceptable amount to charge taking into account the need to preserve access to justice.”

The JSC’s response to that question is to call for an overhaul of the employment tribunal fees scheme and to scrap the recent increase in the divorce petition fee. A full response to the committee’s critical report is likely in September, but in the meantime the MoJ has defended its record on the imposition of fees.

An MoJ spokesman, quoted in the ‘Gazette’, said: “The cost of our courts and tribunal system to the taxpayer is unsustainably high, and it is only right that those who use the system pay more to relieve this burden. Every pound we collect from fee increases will be spent on providing a leaner and more effective system of courts and tribunals.”

The JSC focused much of its report on the need for changes to the remission system, which reduces fees for those who can show they are in financial need. The report says: “The cornerstone of efforts to mitigate the impact of courts and tribunal fees on access to justice is fee remission.

“Fee remission is only available to individuals, including those who conduct their business as sole traders. It is not available to companies, charities or other organisations. Claimants must submit separate applications for remission of each fee, and to be successful, they must first pass the disposable capital test and then the gross monthly income test in respect of each fee.”

In particular, with employment tribunal fees, the JSC called for the income threshold to qualify for fee remissions to be increased.

Law Society president Jonathan Smithers said: “The Law Society and the solicitors’ profession have raised repeated concerns, in written submissions and oral evidence, now echoed by the Justice Select Committee, that punitive courts and tribunals fee increases are denying citizens and businesses the right to justice. The government must now heed the views of experts from across and beyond the legal profession. We welcome and reiterate the JSC’s unequivocal declaration that access to justice must prevail over generating revenue when the government is setting court and tribunal fees.”

He went on to say: “’The JSC clearly recognises the Law Society’s concerns that punitive employment and immigration tribunal fees prevent people from upholding their rights. We urge the MoJ to act swiftly on the JSC’s recommendation that the fees charged in the Employment Tribunal should be substantially reduced. Court-fee increases that have now been adopted were opposed by 90 per cent of respondents to the government consultation, making a mockery of the consultation process. Today’s report vindicates the concerns of those respondents.”

He concluded: “’All civil cases, from divorce, employment and immigration cases to landlords and small businesses trying to get their property back, are affected by fee increases which are tantamount to treating justice like a commodity. Justice is increasingly out of reach for many ordinary people. This will only serve to widen the access to justice gap in our two-tier justice.”
The full text of the JSC report can be found at:

http://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/167/16702.htm

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