Less use of judges and greater use of “registrars or facilitators” is “entirely consistent” with the Magna Carta, the Lord Chief Justice has argued.
Lord Thomas suggested that improvements in technology would allow the justice system to move away from local courts to purpose-built centres in larger towns and cities.
“Most of our systems have developed so that judges, at whatever level, are highly trained specialists,” Lord Thomas said.
“Even in less serious criminal cases, JPs are not allowed to make decisions without the advice of a qualified lawyer. The use of judges to make all decisions comes at an obvious cost.
“Moreover, our adversarial system and the processes we have developed work best when the parties have lawyers. It was no impediment to access to justice when the state provided legal assistance or the cost of lawyers was modest. That state of affairs has changed.”
Lord Thomas went on: “We have therefore begun to create a system which will remove certain judicial work from judges altogether and enable many cases to be dealt with by procedures which can function well, even if the parties do not have lawyers.”
In a speech on the legacy of Magna Carta, given to the Legal Research Foundation in Auckland, New Zealand last month, Lord Thomas said improvements in technology would allow the justice system to “move away from the provision of the much beloved local court and its specially designed features for the majority of small cases”.
The LCJ said: “Even where cases require court hearings, we are also questioning whether we really need to maintain the number of designated local court houses.
“Can we not use ordinary rooms in public buildings to maintain local justice, and access to that local justice, whilst reserving the use of permanent, purpose built court buildings to larger towns and cities?”
Lord Thomas referred to a report by JUSTICE calling for increased use of legally qualified registrars to make case management and other decisions and to the Civil Justice Council report on online dispute resolution (ODR), which suggested the use of facilitators.
“One of the other concepts underpinning both the JUSTICE and the ODR reports is a reduction in the need for legal representation.
“It is important to remind lawyers at times that the justice system is not there for them (although they unquestionably play an important part) but for the public.
“Rather than concluding that lawyers are unnecessary, the reports recognise the reality that lawyers are too expensive for many people, notwithstanding attempts to open up the legal services marketplace.
“The justice system therefore needs to adapt to make sure that people can still access it without lawyers by a process designed to work without lawyers.”
The LCJ referred to clause 45 of the Magna Carta, which provided that people would not be chosen as “justices, constables, sheriffs or bailiffs” who “do not know the law of the land”. This meant that “dispute resolution should be in the hands of those who knew the law”.
He continued: “That principle is preserved, but in a way that recognises that insisting on the very high level of qualification, skill and experience which our current judiciary provides for all the tasks it currently performs comes at a cost that impedes access to justice.
“We have to recognise that securing access to justice can be achieved in many cases at much lower cost by using others who know the law and can apply it well.”