Law: Reforms in bottleneck: Sharon Wallach talks to the new chairman of the Law Commission about the need for more user-friendly courts

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The Independent Online
The delay caused by a long queue of law reforms will be high on the agenda of the Law Commission's annual report, to be published next week. Sir Henry Brooke, the commission's chairman, says that by next February 36 recommendations will be awaiting implementation.

'It is for the commission to point out the problems,' he says, 'and for Parliament to find solutions. Our statutory purpose is the simplification and modernisation of the law. Our work is cascading out, but a queue is building up at the far end.'

Sir Henry, a High Court judge who became chairman of the commission in January, does not have a legal academic background or a record as a law reformer. 'I regard the job as a pragmatic one,' he says, 'carrying forward the purposes of the Law Commission Act. In short, to make the law simpler, more relevant, more accessible and cheaper to use. This is not only my agenda, but also that of Parliament. My next agenda is to translate those aims into practicalities.'

Sir Henry agrees that there is 'huge ignorance' about what the commission does. 'It has steadily become seen as an academic body producing technical reports that are not of particular relevance to the mainstream. It is important that this perception should change.'

With this in mind, he has already taken part in several radio and television programmes to explain the commission's views. 'I regard it as a very important part of the job to take every opportunity of explaining what we are doing and why. It is crucially important to get the public involved. There is a great danger that a complicated legal project can create the impression that law is for the lawyers, particularly clever lawyers, whereas what it is about is to create a body of law that is usable.'

This is not just an academic point. Judges, says Sir Henry, have to spend time trying to make head or tail of outdated law, and that is bad for the public's perception of the legal processes.

Costs are another factor. 'I am absolutely certain that individual and corporate legal bills are far too high because the law is so out of date in many respects. I also think it important that the public should have access to intelligible law. The criminal law, for instance, is such a muddle that it can't be accessed.'

The commission's criminal law recommendations are just part of the new approach to training judges and magistrates. This also includes the establishment three years ago by the Judicial Studies Board of an ethnic minorities advisory committee, which Sir Henry heads.

'As a matter of culture, up to 20 years ago, training was simply unheard of for anybody who sat in any judicial post,' he says. 'What we have been doing is quite new: helping judges, where what they need to know about is not the law they are applying, but the way they are handling people in court and the impression they are making, as judges, on those people.

'We are trying to identify practical ways in which we can best provide help for judges and magistrates in a multicultural society.'

So far, these practical measures include a series of seminars for judges, to which members of local ethnic minority communities are invited. 'There is a great gulf of comprehension to be addressed on both sides,' Sir Henry says.

'Many responsible people in black and Asian communities believe that the criminal justice system is biased against them, without their having actually sat in Crown courts, watching the way judges do their best to be fair.'

But the judges also had little idea of the scale of concern within the minority communities. 'I hope that what we are doing will lead to real efforts on both sides to bridge that gulf.'

The commission's efforts mirror those across the Atlantic, although Sir Henry is impressed by the extra resources that the United States and Canada are investing in training. 'As one demystifies judges, and the public becomes more critical of the way they do their jobs, there is going to be an increased need to provide more in the way of training resources than we have traditionally provided,' he says.

Solicitors and barristers would also benefit from a measure of re- education. Their role, Sir Henry says, throws up questions about how court business is to be managed. 'When I see large cohorts of professionals in court (one recent appeal hearing involved 44) I am conscious that ultimately it is the consumer - you and me - who is going to be paying.

'There is a distinct clash of cultures between those of us of the view that we cannot go on as we are, with law becoming more and more inaccessible, except to the very rich and the very poor, and those who are not convinced that much in the way of change is needed.'

One of the essential changes in Sir Henry's view is that solicitors and counsel should learn to see to the judges' needs in good time. 'The more the judge can read himself into a case before the trial starts, the better and more quickly he can conduct the trial, and the more likely he is to produce an adequate judgment.

'I don't think that the litigation community - except for the top 10 per cent - has correctly identified the needs of the modern generation of judges in the conduct of the very heavy cases.' Computerisation could also help to shorten hearings and thus reduce costs.

'But attention to practice directions has an even more important part to play,' Sir Henry says, with some feeling. (Practice directions make it clear that, in cases of any complexity, counsel should provide the judge with a skeleton argument of his or her case.)

'I generally set aside three hours the evening before and one hour in the morning before the trial starts to try to get on top of the papers, so that I can help the parties,' Sir Henry says. 'But these practice directions are constantly broken.'

The answer is not simply to appoint umpteen new judges. 'The more you increase the numbers, the more you run the risk of diluting quality for quantity. One of the great questions in the next 10 years will be how to use scarce judicial resources effectively, while at the same time ensuring fair hearings for everyone.'

This is where computerisation comes in, Sir Henry believes. 'As a trial judge, I see the disastrous results of delay - when, for instance, an injured plaintiff has to abandon a one-off chance of a government grant for a rehabilitation course, because of a two-year delay in getting compensation.'

The reasons for delays are various, he suggests: not enough shopping around for expert reports; solicitors taking on litigation work requiring skills they do not possess; solicitors and counsel allowing themselves to take on too much work; and judges not being tough enough in extreme cases.

'It's all to do with culture - one becomes unpopular if one tries to buck a culture,' Sir Henry says. 'I hope that the more attention is paid to the fact that there are ways of reducing delay and costs, the more some solutions will be found to the present crisis.'

(Photograph omitted)

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