The modern era of Judge-led Reform

Most barristers with a passing interest in court reform will have been aware in recent years of a clutch of reform initiatives led by senior judges, which concern the administration of justice. In the last five years for example we have had the benefit of Mr Justice Ryder’s[1] ‘Judicial Proposals for the Modernisation of Family Justice’ (2012); Lord Justice Briggs’ ‘Chancery modernisation Review’(2013); Sir Brian Leveson’s ‘Review of Efficiency in Criminal Proceedings’ (2015); Lord Justice Briggs’ ‘Civil Courts Structure Review’ (2016); and Lord Justice Jackson’s ‘Supplemental Review of Civil Litigation Costs: Fixed Recoverable Costs’ (2017).

Although historically, senior judges were from time to time asked by the government of the day to conduct reviews of one sort or another, the pattern of judge-led reform in recent years has intensified. That is not because their lordships have run out of appellate work and have in the resulting down-time decided to give voice to a pet project. Rather it is the product of the closer working between the senior judiciary and the Executive, formalised in the joint venture between the two that is Her Majesty’s Courts and Tribunal Service (HMCTS).

The formation of HMCTS is itself a consequence of the Constitutional Reform Act of 2005 which redistributed wide-ranging powers historically held by the Lord Chancellor. Many informed observers regret that piece of legislation, somewhat rushed as it was, and it may be that historians will conclude that constitutionalists were asleep when the Act was passed and that the unintended consequences are now playing out. Others, on the contrary, see the Act as a bold and logical development of a maturing relationship between the judiciary and the Executive and as a necessary part of a modernisation process. Whatever your stance, it is already fairly clear that the longer term consequences of the Act are reverberating daily and will do so for a long time to come.

HMCTS describes itself as an ‘executive agency sponsored by the Ministry of Justice’. It was created on the 1st April 2011. According to its ‘Framework Document’ it ‘operates on the basis of a partnership between the Lord Chancellor and the Lord Chief Justice’. Its Aim is ‘To run an efficient and effective courts and tribunals system, which enables the rule of law to be upheld and provides access to justice for all.’ [2] It is overseen by a board on which senior members of the judiciary and the Executive sit.

What is the role of the senior judiciary in this partnership with the Executive?

As the outgoing Lord Chief Justice, Lord Thomas put it, in a speech entitled ‘Judicial Leadership’,[3]

‘(the) changes in the 2005 Act have now given the judiciary its own distinct leadership role in respect of the machinery of justice, via the transfer of the role of head of the judiciary from the Lord Chancellor to the Lord Chief Justice, as President of all the courts in England and Wales. Under the Act the Lord Chief Justice holds leadership responsibilities, including a duty to make representations, not least in respect of the administration of justice, to both Parliament and the Executive, thereby establishing this constitutional rebalancing of responsibility.’

Of course the Lord Chief Justice can’t do it all personally, so the task of making ‘representations… in respect of the administration of justice’ is delegated to senior judicial colleagues. This has become the norm. As Lord Thomas continued, ‘The essential point is that judicial leadership in this area has emerged and can now be regarded as an accepted feature of our constitutional settlement.’

There are, one might think, a number of positive consequences for us all from this constitutional development.

First, most of us, most of the time, trust judges to get it right. After all, senior judges are clever and experienced and will be motivated to act in the public interest.  We do not routinely credit politicians with those virtues, although it is fair to say that despite the criticism they have always received, civil servants have traditionally contributed those qualities to the work of government. So, as a starting point, why not let judges routinely take the lead in the reform of the administration of justice?

Second, governments come and go. If delivering a long-term strategy is the paramount consideration, why not allow judges who remain in situ, whilst power and priorities change with unpredictable frequency in Westminster, continue with their reform initiatives? They can do so with the expectation that their proposals will be gratefully adopted by the Executive – the other half of the joint venture – anxious, as the Executive will be, to demonstrate that it is proactive in delivering reform.

Yet there are some downsides, or so it seems to me.

The first, to pick up on the last point, is that the judiciary will know that the Executive is unlikely to sanction, without a great deal of persuasion, a reform which costs more money than is budgeted. After all the board which oversees HMCTS, including as it does senior judges, is tasked with approving ‘the allocation of the annual budget and any significant in-year changes to it.’[4]

 In a time of austerity this necessarily means that judge-led reform, however good or wise it may be, is hobbled by what HMCTS has been provided by the Treasury. Whilst this limitation has the virtue of being pragmatic in ensuring that reform is affordable, we do not want to start to think of judges as we think of politicians. If judges were to accept that their reforms were frankly second-best because they were limited by financial constraints imposed by the Treasury, the appetite of the Executive for the kudos otherwise arising from implementing the reform, would diminish. That would not make for a successful joint venture within HMCTS.

Not that we can detect that the judges have been shy of promoting their initiatives in order to maximise the chances of implementation. The language used by some is surprising. I have made myself unpopular with some senior judges by suggesting that their tone is, at times, ‘evangelical’ in the cause of reform.

On the one hand the role played by our distinguished senior judges in furtherance of HMCTS reform programme is most impressive, and it is churlish to fuss about what that role might in time do to the way we view our judiciary. But in other respects it is worrying.  My predecessor Chantal-Aimee Doerries QC, writing for The Times last November, captured the worry when she said:

‘My concern is that, in the long run, the close working relationship needed to make a success of such a bold programme of reform, brings with it the risk of undermining the independence of our judiciary.  This may arise less as a threat to the independence of individual judges, but rather as a threat to the judiciary as a group or institution. If judges become too closely identified with a programme of modernisation where success is dependent on funding and implementation by the Executive, there is a risk that in the future we will evaluate our judges on their ability to be effective managers rather than fearless independent judges  who are independent of the Executive.’

Is it too early to say that the experiment that is HMCTS has proved to be a successful answer to the need to discharge the responsibility that was historically, in part at least, that of the Lord Chancellor? Or is there a sense, shared by some, that there was after all a good reason to keep judges away from the front line of what is essentially a political field?

Another potential downside, closer to home in my current role, is the consequence for those, like the Bar, who are troubled by any given aspect of a piece of judge–led reform. It should not be thought that we are troubled by much if it. Most of the modernisation programme is long overdue and necessary to keep our administration of justice in its position as a world-leader. When the Ministry of Justice is starved not only of financial resources but of experienced and skilled civil servants, we should be thankful that the judges, at least, are productive.

But inevitably there are some judge-led reforms that are controversial.  Whereas of course major change still requires legislation and therefore parliamentary scrutiny, some reform does not. Even that which does will for obvious reasons be much harder to shape if it originates from the authority of a senior judge. So when the profession  wants to play a part in improving a suggested reform or, exceptionally, seeing-off what seems like a thoroughly bad idea, we have to try to change the thinking of the judges themselves, before their recommendations are published.

The Bar can do that up to a point, and it may be that the Bar Council has from time to time, in conjunction with the many Specialist Bar Associations and the six Circuits,  influenced a judge’s thinking and recommendations. After all the judges in question consult others, including the profession. But where our representations are not heeded, the Bar may be pitched ‘against’ the senior judiciary in a way which historically was rare. It may be that this is a necessary although regrettable consequence of the modern formal partnership between the Executive and the judiciary of which HMCTS is the embodiment.

If it is, then I suggest that the Bar and the Bar Council need to adapt its traditional way of operating, recognise the new constitutional settlement and be prepared where necessary robustly to criticise a proposal notwithstanding that it emanates not from a politician but a senior and, invariably, a respected judge.

Culturally many are uncomfortable with that change. Certainly open criticism, as opposed to respectful and diplomatic submissions, should be the last resort. But we need to be alive to the possibility that there is a significant amount of change happening on our watch. We are in the middle of the most radical overhaul of the administration of justice for many years. The reforming judges are not always going to get it right, as they may be the first to acknowledge. We must not be shy of making our voice heard by them. And they must not be horrified if we openly disagree. The Bar has unrivalled expertise in the subject of everyday experience of what works and doesn’t work in in Her Majesty’s Courts and Tribunals. If judges are more inclined to move to the front line of the political field, they ought not to regard the professions as unwelcome participants in the fray.

As for our own resources in meeting the challenges ahead, we will continue to need barristers with time, expertise and a sense of public duty to put their shoulders to the wheel when it comes to responding to the reform programme. Where necessary that must involve a robust discourse with those now in charge of reform – not always but often, a Lord Justice of Appeal.

Andrew Langdon QC, Chair of the Bar.

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