Joint Committee On Human Rights Minutes of Evidence


Memorandum from the Lord Chancellor

INTRODUCTION

  As Chair of the Cabinet Committee I was deeply involved in the detailed development of policy as reflected in the Act; introduced and piloted it through the House of Lords, where it was first introduced; and co-operated throughout with the Home Secretary whose Department was in the lead on the Bill. Since enactment, officials from my Department have worked closely with the Home Office and the central departments to provide a lead in the work towards implementation.

  The scheme of the Act provides that human rights issues can be raised not only in high-profile cases in the appellate courts, but also in every day cases in magistrates' and county courts and tribunals. Indeed, courts and tribunals are doubly affected by the Act. First they have to adjudicate in human rights cases and consider the compatibility of legislation. Second, as public authorities under Section 6 of the Act, they have to act compatibly with Convention rights and develop the common law in a way that is compatible with Convention rights.

  I was therefore particularly concerned to ensure that the preparation of my Department covered not just the development of policies, legislation, rules and procedures and staff training that all Departments needed to address, but also, very importantly, preparation to ensure that the court system would be ready for the new tasks given to it by the Act. My Department's implementation programme therefore included the following issues:

    —  Delivering appropriate training for the judges, magistrates, and tribunal members.

    —  Ensuring speedy access for judges and magistrates to ECHR case law.

    —  Ensuring that there were sufficient numbers of judges, magistrates and their professional advisers and tribunal members to deal with any extra workload.

    —  Putting in place appropriate rules, practice directions and procedures for handling cases involving Convention rights.

    —  Providing information for court users on procedural requirements.

    —  Putting in place systems for evaluating and monitoring cases involving Convention rights.

IMPACT ON THE COURTS SO FAR

Monitoring

  My Department has put in place systems to monitor the incidence of human rights issues in the courts and the tribunals administered by my Department. In particular, the scope of that work addresses the quantitative impact of the Act on the workload of the courts and those tribunals. It does not address broader issues such as the qualitative impact on legislation or trends in case law. These are issues that are being addressed by the Human Rights Act Research Unit at Kings College Law School, which is undertaking some analysis of reported cases involving human rights issues on behalf of the Home Office. As always with new legislation, lawyers and academics can be expected to provide qualitative assessments of the impact of the Act.

Impact

  I attach a paper at Annex A, which sets out the impact of the Act in the first three months since 2 October at all levels of the court system. Overall, I am pleased to say that the courts are matching up very well to the demands placed on them so far by the Act. There has been some extra workload, in particular in the higher courts, but there has been no significant impact on the length or complexity of hearings and no significant increase in outstanding cases at any level of the system. I believe that this smooth transition has not been due to chance but the result of the two years of careful preparation by both Government and the courts.

  In response to the Committee's specific questions, when new legislation is introduced, there can be a time lag before any significant impact as practitioners assess the early case law and consider how best to use it. This may be the reason why use of the Act has been limited so far, in particular in the courts of first instance. In addition to this, the requirements of section 22(4) of the Act mean that it is only possible to challenge the actions of public authorities in new proceedings where the action that is being challenged took place on or after 2 October 2000. Such claims will therefore inevitably take some time to feed into the system. It may well be therefore that work will increase in the future. What is clear, however, is that the court system is managing the current workload extremely effectively and is well placed to deal with any future increase, if that transpires.

  In the county courts and High Court, 76 claims for damages have been issued in the first quarter that have relied alone on a Convention point. In comparison, some 467,000 civil claims have been issued in the same period. The Administrative Court reports that there have been less than a dozen issues in judicial review that could be termed new.

JUDICIAL TRAINING

  I was extremely concerned to ensure that, before implementing the Act, we learned lessons from New Zealand, where the legislation was implemented very quickly after enactment. I especially wanted to allow sufficient time to plan and prepare for implementation and, in particular, to ensure that there was effective training of all full and part time members of the judiciary. The Judicial Studies Board and the Magistrates' Courts Committees therefore undertook the largest ever programme of training for all 3,500 judges and 30,000 lay magistrates. Overall, I believe its success is borne out by the smooth implementation of the Act so far at all levels of the judicial system. Details of the programme are set out below.

The High Court and Above

  Special single topic seminars were held each term in the Royal Courts of Justice for Law Lords, Lords Justices and High Court Judges. They were led jointly by a Lord Justice and an academic lawyer and focused on particular Articles of the Convention or sections of the Act. The seminars proved to be very popular and successful and the series was expanded to include issues of particular relevance to Judges hearing judicial review cases in the Crown Office List (now the Administrative Court) and the Divisional Court.

All Full and Part-Time Judges

  The Judicial Studies Board (JSB) series of 58 training seminars for all 3,500 full and part-time judges ran from January to September 2000. The seminars included opening lectures by leading practitioners and academics on the methodology and structure of the Act and Convention, followed by syndicate exercises to enable judges to work on criminal, civil and family (public and private) law. The syndicates were led by judges who volunteered to act as syndicate leaders and who had been trained by the JSB on the Act and Convention, on how to use the JSB training materials, and in training delivery. Most of the syndicate leaders undertook a study visit to the European Court of Human Rights in Strasbourg. The training was carefully structured to engage the participants and develop understanding of the Act in a short timeframe. It was piloted in Wales and further developed to improve its effectiveness. The attendance and contribution of the senior judiciary and a number of judges from the European Court of Human Rights in Strasbourg at the training seminars for the mainstream judiciary was greatly appreciated.

Lay Magistrates

  Training included pre-course reading and self-development, including a specially tailored audiotape and textbook. All lay magistrates received one day's training, delivered locally by a core group of trained legal advisors with a further half-day for those who sat in the Family Court. Overall, the feed back from the magistrates' courts has been generally positive and the training programme was completed with minimal disruption to the work of the courts. Many magistrates asked for more training and in many areas further training is being provided in response to these requests.

Chairmen and Members of Tribunals

  Responsibility for the provision of training for chairmen and members of tribunals rests with the sponsoring Government Department for the individual tribunals. The JSB, however, is responsible for providing advice to Departments and therefore produced a training pack on generic issues for the benefit of all tribunals and held subsequent seminars on the use of this pack. In additional, it invited tribunal chairmen to attend the mainstream judicial seminars with nearly 50 chairmen taking advantage of this opportunity. An estimated further 120 judges who hold additional tribunal appointments also attended the judicial seminars.

  The Council on Tribunals reported in its 1999-2000 Annual Report that the general picture in tribunals was encouraging and that much had been done to ensure that tribunals were equipped to meet the challenge of the Act. All the major tribunal systems, and many of the smaller ones, arranged for training to be provided to their members. The extent of training depended on the size and frequency of hearings of the particular tribunal system and the impact the Act was likely to have on it. The Council drew attention to the crucial role played by the JSB and said that where evaluation had been carried out, "the general feeling seems to be that training has been informative and helpful". The Council did draw attention to some concerns about locally based training systems. This is a general issue and one that, I know, Sir Andrew Leggatt is considering in his current Review of Tribunals.

IDENTIFYING AND EXPEDITING SIGNIFICANT HUMAN RIGHTS ISSUES

  I do not think it would be appropriate for me to comment on individual cases or emerging areas of case law. The Court of Appeal and Administrative Court are alive, however, to the need to resolve important ECHR points quickly. Procedures therefore exist in all jurisdictions to fast track cases to the higher courts where judges at the lower levels consider that early precedent should be established.

  The New Zealand experience also demonstrated the importance of not only ensuring that the higher courts resolved important points quickly but also that judges at all levels were informed promptly of these judgements and of emerging case law in general. In an unprecedented public/private partnership with Butterworths, my Department therefore developed, in consultation with judicial users, an electronic information system that allows judges access to developing domestic and Strasbourg jurisprudence quickly.

PREPARING THE HIGHER COURTS

  I was also particularly concerned to ensure that the higher courts were as prepared as possible for implementation of the Act so that they were able to hear important cases as quickly as possible without undue impact on other workload. For example, Sir Jeffrey Bowman conducted Reviews of the Court of Appeal (Civil Division) and Crown Office List (now the Administrative Court). Recommendations from these Reviews were implemented prior to implementation of the Act to simplify procedures and to enable the Courts to deploy their resources more flexibly. Administrative Court sittings were doubled in the run up to the Summer vacation and as a result the number of outstanding judicial review cases has been considerably reduced. You will note from the attached paper that the higher courts in general are matching up very well so far to the demands of the Act.

CONSIDERING HOW THE ACT WAS LIKELY TO BE USED IN PRACTICE

  The New Zealand experience also demonstrated the need to consider how the Act was likely to be used in practice once it came into force. My department therefore organised a series of "walkthoughs" to alert all the players in the justice system to the potential impact of the Act. Experienced human rights practitioners prepared and presented case studies, which were then explored by judges, magistrates, defence and prosecution lawyers and policy makers and others with an interest. As a result, refinements were made to training programmes not just for the judiciary and magistracy but also, for example, for the criminal Bar.

  In conclusion, therefore, I have taken my duty extremely seriously to ensure that the court system was prepared for implementation of the Human Rights Act. The wisdom of that thorough preparation has been borne out by the manner in which the court system has matched up with remarkable efficiency so far to the demands placed on it by the Act.

March 2001


 
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