Common rules across civil, family and tribunals would herald the biggest shakeup of our justice system since 1873.
In appearing before the Commons justice committee to answer questions about his annual report last month, the lord chief justice was the subject of yet more media scrutiny. Reporters were hoping that MPs would ask Lord Thomas of Cwmgiedd how much damage had been caused when he and his colleagues were traduced in the media and left largely undefended by the lord chancellor.
No such luck. The Brexit case, which opens in the Supreme Court today, was strictly off-limits. But much more important was his announcement that judges are working towards creating a single rulebook for all cases in the civil courts, the family courts and tribunals.
Boring though it may sound, this plan has implications for every court and tribunal in England and Wales. Thomas said courts and tribunals were working with 17 different computer systems. And yet every court case – including those in the criminal courts – shared a common basic structure. The way ahead was to build a single IT system, with core components and necessary variations.
An online court for lower-value civil claims was the starting point, he explained. ‘But if the IT is developed properly, we should be able to use the same IT system across the whole of civil, family and tribunals. To make sure that works, we’ve agreed to have a single set of basic procedural rules that are common across the system.’
That is easy to say, challenging to achieve. Combining three rulebooks and rewriting them in plain English is a huge job for a new, single rules committee. But what it could lead to is an entirely new jurisdiction – in effect, a new court, bringing together parts of the existing courts and tribunals.
The obvious place to start would be in the Rolls Building, where judges from the Chancery Division work alongside judges from the Commercial Court, a subdivision of the Queen’s Bench Division. It sounds easy enough, since both divisions are part of the High Court and there is considerable overlap in the work they do. But, as one insider told me, it would mean the Rolls Building ‘exiting the White Book’ – writing a new rulebook for the different courts that sit there. The Chancery Division would presumably be abolished and the Queen’s Bench diminished as both join a new cross-jurisdictional platform, as yet unnamed.
And why stop there? The Family Division currently deals with private-law cases – divorce and its consequences – as well as public-law cases, for example taking children into care. But divorced parents often find they have other problems, such as debt. Why not let an all-purpose family judge decide not only how much child maintenance the earning parent should pay but also how to resolve that parent’s threatened bankruptcy?
But the true value of this new jurisdiction can be seen when you bring the existing tribunals into the system. Take the example of an individual who has been diagnosed as having a mental health disorder and ‘sectioned’ under the Mental Health Act – detained as a patient in a psychiatric hospital. A tribunal, formally known as the First-tier Tribunal (Mental Health), will decide whether the patient is fit to be discharged. But the effect of a ruling from the Supreme Court in 2014 is that any ‘deprivation of liberty’ must be authorised by the Court of Protection, which acts in the best interests of the patient.
It is obviously in the patient’s interest for the tribunal and the court to work together. To some extent, that can be achieved by ‘cross-ticketing’ – allowing a single judge to sit in two different jurisdictions. But it is much more convenient to have a single court dealing with all aspects of a patient’s care.
Except that supporters of the existing tribunal system do not want to see the concept swallowed up into something called a ‘court’. The current working title is ‘online justice platform’. But that won’t work in the real world: if it looks like a court and works like a court then ‘court’ is what it will have to be called.
First, though, there will have to be enabling legislation. A prisons and courts bill is expected from the Ministry of Justice early in the new year and would be allowed to ‘cross over’ to the next session of parliament. In headline terms, this will be seen as paving the way for the new online civil court referred to by the lord chief justice.
But its long-term effect will be to allow the restructuring of a system of justice that – with the exception of tribunals – has been largely unchanged since 1873. The deadline for achieving this – and the digitisation of the existing courts – has shifted from 2020/21 to 2022/23. The next five or six years are going to be hugely challenging — but also a time of historic change.