Vulnerable parties: two cheers for UK judges?

For 25% of the population of England and Wales,* 6 April 2021 was an historic day. From time immemorial, vulnerable witnesses and parties – in particular, disabled people – have been ignored by UK judges in civil jurisdictions. By that, I mean that they were missing from the White Book (Civil Procedure Vols 1 & 2); it contains nothing about either group.

While powers under the CPR may be the same both before and after the amendment brought about by the Civil Procedure (Amendment) Rules 2021 (SI 2021/117) (‘the amended CPR’) in force from April, the overriding objective is profoundly different. Vulnerable people and, as a subset, disabled people, are now to be considered in the CPR in every case and at every stage in every case. Their needs are to be an overriding objective, among other overriding objectives, in all matters that require adjudication by judges.

I deal with the consequences of the amendment in April 2021’s Legal Action Magazine. Here, I want to discuss the legal and moral terrain that the amended CPR leaves us with – as lawyers, judges and disabled people.

The long path to disability-friendliness

I first pointed out the ‘default’ in having to work with the CPR being as ‘disability-unfriendly’ as it could be – by which I mean the CPR making no mention of disabled people at all – 17 years ago in Counsel magazine. I have constantly been asserting disabled people’s rights to a fair hearing, no matter what jurisdiction it was. It was part of my practice.

Why has the judiciary changed the rules so dramatically? And why so under the radar? The answer probably lies in the report on which the amended CPR is based: Vulnerable Witnesses and Parties Within Civil Proceedings: current position and recommendations for change (Civil Justice Council, February 2020). Having noted that: ‘There are no specific provisions dealing with vulnerable parties or witnesses within the CPR’ [82], the report then goes on to say ‘… the majority of those who provided input into the consultation report recognised that the Court’s powers to address vulnerability were not being used frequently or widely enough, or consistently’.

I think this means that the UK civil courts, time and again, have not been using their powers to provide access to justice for disabled people and other people who the court now classes as ‘vulnerable’ – in breach of international law (ie Article 13 of the UN Convention on the Rights of Persons with Disabilities, ‘UNCRPD’). Quite a thing.

Among the many invidious situations faced by disabled people, one of UK society’s largest groups, is that until now, they have had no recognised and effective right to access civil courts. In the vast number of cases, they continue to have no government funding to instruct a lawyer or other representative. I’m famously the worst paid lawyer that I know because I act for disabled people, at best, for cheap and, at worst, for free.

International standards and the consultation gap

‘Respect for the rights of all persons, including persons with a disability, the fulfilment of their full equality and the protection of their dignity reveals what kind of society we are and will be,’ wrote Juan Manuel Fernández Martínez, a member of the General Counsel of the Judiciary, Spain, in his foreword to the International Principles and Guidelines on Access to Justice for Persons with Disabilities (the ‘International Principles’).

This document, along with the International Committee for Rights of People with Disabilities (‘the International Committee’), and with the endorsement of the International Commission of Jurists, the International Disability Alliance and the United Nations Development Programme, outlines guidance for countries including the UK on what they need to have in place in order to prevent cases going up to the International Committee. Among its ten principles, which I examine in more detail in Legal Action, is Principle 6: ‘Persons with disabilities have a right to free or affordable legal assistance.’ In enacting that, the UK shall, among other things, ‘ensure free legal assistance is available to persons with disabilities wherever necessary on an individualised basis as a procedural accommodation’. So far, the UK has not sought to bring forward such legislation. Nor has the judiciary complained that, as part of the procedural accommodations, they (nor anyone else) don’t have that power.

For some reason, the idea that disabled people should have that right is not even debated in the UK. But this is no surprise. Under Article 4.3 of the UNCRPD, it is said that ‘in the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to people with disabilities, state parties shall closely consult with and actively involve persons with disabilities... through their representative organisations’.

It never seems to have occurred to the judges and others who came up with the amended CPR that disabled people, through their representative organisations, needed to be consulted about their inclusion in this way. This is a pity because the amended CPR, for the large part, is ‘friendly’ to international rights of disabled people and should be lauded. Although there are some points of detail (see John Horan, ‘A Silent Revolution?’ Legal Action, March 2021), for the most part this is the judiciary acknowledging Article 13, among others, of the UNCRPD, in a constructive and appropriate way.

Some members of the judiciary, as well as some lawyers and disabled people in the UK, do not actually know what rights are covered under the UNCRPD. Perhaps if training finally occurred, we could have a society where the rights of disabled people could be talked about. Until then, being disabled means being a second-class citizen, no matter what your ‘paper rights’ are.

When I was a pupil in my first chambers, I was very much inducted in the world of doublespeak; ie a client who was disabled, Black or LGBT could have a really good case but was spoken of with contempt or distain, even by those whose job it was to represent their client’s interest. All branches of our profession – solicitor, barrister and judge – are granted leeway when exchanging ‘war stories’ in ‘off duty’ moments. This isn’t right.

‘Justice systems reflect the value of the societies in which they are embedded,’ so says the introduction to the International Principles. Surely, in a modern functioning society like ours, there is a need to debate the rights of people with disabilities between judges, government and the disabled community. Listen to the voices, judges, of disabled people before you decide whether the tools that you have been provided with are effective.