Fury over MoJ proposals for weekend courts
Two weeks ago, we wrote about tentative plans to experiment with running jury-less trials in some criminal court cases to help deal with the immense backlog of criminal cases which has been further exacerbated by the coronavirus crisis. Those proposals having proved to be so unpopular that they seem to have been temporarily shelved, the MoJ has now published their new coronavirus recovery plan.
Similar to their earlier proposals however, the new plan has already met with fury amongst lawyers, in particular the proposal that from July, Courts are likely to operate extended hours to increase the number of cases that they can deal with. For barristers and solicitors who already work exceptionally long hours, many of which are effectively unpaid, it seems that things might be reaching a breaking point.
So is their fury righteous? On the face of it, it certainly looks so. What particularly alarms us is that these proposals seem to have been again arrived at with little to no consultation with key stakeholders. The Law Society and the Bar Council, the two bodies that regulate the two major branches of the legal profession in the UK felt compelled to issue a joint statement against the plans. In the statement they highlight not only the effects that such a move would have upon the bar and solicitors, but also the immense cost to the taxpayer and the likelihood that forcing courts to open on Saturdays would mean that parties, victims and witnesses might struggle to get to courts on time.
Ideas of when a ‘duty to consult’ arises were perhaps most clearly elucidated in the wonderful case of R (Plantaganet Alliance) v Secretary of State for Justice, back in 2014. Whilst examining the tricky judicial review about the reburial of the remains of Richard III, the Court established four major circumstances where a duty to consult may arise:
- Where there is a statutory duty to consult;
- Where there has been a promise to consult;
- Where there is an established practice of consultation;
- Where a failure to consult would lead to conspicuous unfairness
Although there is no statutory promise to consult, and there has been no specific promise in this case , it is not difficult to make the argument that there is an established practice of consultation (changes to court operation and the demands upon people working in the justice sector are usually consulted upon to some degree), or that the failure to consult in this case will lead to conspicuous unfairness to many people in the justice system, and may disproportionately impact people with protected characteristics.
Even outside of the protection of the law however, the decision not to consult seems to be at best illogical, at worst, downright irrational (though one must be careful using this term). One of the important roles of consultation is to ensure that better decisions are made. Although they are not collectively a public body, barristers and solicitors play a key role in the operation of the justice system- put simply, without their services, justice does not happen. Often vulnerable defendants go unrepresented, people have to defend themselves without the benefit of training and skilled advice. It becomes a fundamental access to justice issue with knock-on effects all across society.
Making sweeping decisions such as this without consultation not only shows a disregard to individual barristers and solicitors who may be unable to meet the new demands imposed upon them by the extension of court hours, it also risks an expensive failed policy that the assistance of a consultation could easily have avoided.