Law at the precipice

But chief justice remains optimistic, provided conditions are met

“We are at the precipice of system-wide change,” the lady chief justice of England and Wales said at the weekend. But Baroness Carr of Walton-on-the-Hill told barristers at their annual conference in Birmingham that she remained “stubbornly optimistic about the future of the justice system, subject to funding and provided that we all work together”.

Baroness Carr at the bar conference on Saturday

That was despite the challenges and opportunities she set out in her speech:

• We have already seen David Gauke’s independent sentencing review published and we expect Sir Brian Leveson’s independent review of the criminal courts to be published imminently.

• These two major reviews are delivered in parallel to a major government-wide spending review.

• HM Courts and Tribunals Service’s modernisation programme concluded this year but there is a still a great deal of technology advancement to be delivered.

• We are embracing artificial intelligence in a safe and appropriate manner but it is set to transform the legal sphere.

• We aim for civil justice to become entirely digitised, a project safe in the forward-thinking hands of the master of the rolls.

• The criminal justice system is the subject of wholesale and total change, as the need to move to a long-term, sustainable system is recognised.

• The family jurisdiction is leading the way in transparency and open justice.

Carr told barristers there were five areas of common interest in which the judiciary and the bar could cooperate.

1. We can work together to proclaim the value of the rule of law across all aspects of society. Like oxygen, she explained, we take the rule of law for granted. But it was important to stress the significant economic advantages in resolving disputes quickly, efficiently and at proportionate cost.

2. We can work together to make the case for adequate system-wide funding. The necessary reforms would not be able to flourish without properly resourced courts and tribunals, functioning buildings and proper funding for the bar. “I see early resolution options as being key to successfully reducing backlogs,” she said. “Many will depend on the best possible legal advice being given at the earliest opportunity.”

3. We can work together to support new initiatives, such as Pathfinder in the family courts. The chair of the bar and the president of the High Court family division were both pressing for these child-led, problem-solving, courts to be extended.

4. We can work together to promote the soft power of the judiciary and the legal profession, including on the international stage. “The UK is uniquely well qualified to show leadership in times of global instability and uncertainty,” she said, “because, more than anywhere else, our jurisdiction offers a steadfast adherence to the rule of law and a longstanding reputation for excellence in, amongst other things, the provision of dispute resolution.”

5. We can work together to improve diversity and inclusivity. “I know that there are concerns about bullying at the bar,” Carr told barristers. “I am also aware of real concerns about instances of judicial misbehaviour. I want to reassure you that I take these concerns with the utmost seriousness.” Given that the judiciary was a “pipeline profession”, we needed to understand why, for example, no black KCs had been appointed in the latest round.

The past year had been another challenging period for the rule of law, Carr added:

Amongst other things, the judiciary has faced unprecedented levels of abuse, including from social media and online abuse, alongside unfair and inaccurate criticism. Scrutiny and reasoned criticism are an important part of open justice, the rule of law and the sign of a healthy, functioning democracy. But the consequences of inaccurate comment or sensationalist reporting can be very damaging, including for judicial security.

The lady chief justice reminded barristers that guidance on the use of social media applied to lawyers who sat as part-time judges just as much as it did to members of the full-time judiciary:

The guidance exists to maintain the judiciary’s core principles of independence, integrity and impartiality. But it is also there to keep judges safe. These are the reasons why the guidance applies to all judges, whatever their jurisdiction or role.

Once you are a judge, you are a judge — and you will be supported as such. But that requires adhering to the guidance and understanding that it, along with other judicial policies, is in place to protect you.

Carr recognised that it was a challenging time to be a barrister. But she was heartened by the courage and endeavour she saw from the bar, day in and day out.