I had plans for a proper blog post. But I just can’t. It’s too hot. And I’m tired. Tired of waiting for things that are ultimately a disappointment. Like the cool air conditioned train I shall be eagerly waiting to catch on Tuesday morning, but which I know, with a sinking feeling, will be sweltering and smell of body odour, cannabis and despair (the despair will be mine, the rest belongs to others).

Another barrister tweeted something prescient at me over the weekend about the prohibition on direct cross examination. She said ‘it would be a shame if perfect is allowed to be the enemy of the good in this situation’. That is true. Nobody who has given it more than ten second’s thought has ever thought that these provisions would be more than a klonky and over-complex compromise to a problem exacerbated, if not entirely created, by LASPO. They were never going to be perfect. And I have bitten my lip for a while now, fearful that if too much noise was made about the imperfections someone somewhere might actually listen – and decide not to implement it at all. Better something than nothing I thought.

Except.

I’m not so sure now.

It is becoming clear there are not enough lawyers to run the new scheme. I say it’s becoming clear – it’s been written on the wall for some months but those that needed to see the scrawl on the wall have had their backs to it. But there is more and more anecdotal evidence that is the case. And of course, it is this slight numbers problem that led, belatedly, to the scheme now only applying to new cases – to reduce demand until supply has come up. The prohibition is mandatory in most cases, remember. There is no discretion as to whether the prohibition should apply when those provisions are triggered. In many cases where the prohibition is triggered the QLR scheme will be the ONLY route through which the court can discharge its duty under the Act, and the only route through which evidence can be heard (not just fact finding hearings by the way, any hearing involving evidence of a victim/ alleged victim). If there isn’t one available: everything stalls. Judges CAN’T go back to the previous unsatisfactory situation of asking questions themselves. The statutory guidance (correctly) says that is unsatisfactory and inappropriate.

And there’s another problem. Because that stat guidance tells a truth we’ve all known for some time, that it’s not okay for judges to be doing the questioning on behalf of a party. And yet that is exactly what judges have had to be doing in cases since LASPO in the absence of an alternative. It is what a civil servant told me they should ‘just keep on doing’ in the many many existing cases which won’t fall under the new provisions (and so aren’t eligible for a QLR even if they justified one). But how can they in the face of that stat guidance? How can it be inappropriate in one case but not in another? What on earth is the solution for those cases? They can’t even get in the queue for a QLR.

What are the options for the court in this situation? Or where is the wriggle room?

• Think very hard about whether a fact finding / oral evidence is really necessary? Well yes, but this should be happening anyway (see K v K wherein the Court of Appeal said ‘Woah, woah, woah – that’s not quite what we meant in H-N. Steady on!’). And if it needs a fact find it needs a fact find. Same with oral evidence at welfare hearings.
• Interpret the ‘specified evidence’ provisions strictly to limit the numbers of cases where the provisions are triggered? Careful now…
• Prohibit a party from asking any questions – effectively prohibit them from challenging the evidence other than through submissions? Surely not.
• Mckenzie friend asks the questions? Rarely going to be a solution and lots of potential for catastrophe for either party. In terms of organisations, Support Through Court has just been decimated so they are unlikely to be able to assist. Plus, if a McKenzie friend is doing the questioning they can’t be focused on supporting the party they are with.
• Child’s lawyer asks questions? Problematic. I could write an essay on this (but I’ll spare you). I’ve done it several times in several guises. I will not be doing it again.
• A legal adviser is borrowed to voice the questions. Not feasible for resource reasons if nothing else. (ditto court staff).

Here is what I’ve learnt over the years of trial and error and bodging to try and make hearings fair with limited resources:

• The person asking the questions needs to be a lawyer or judge so they can implement ground rules, avoid irrelevance or inappropriate questions, deal with follow up questions etc.
• However, if the judge asks the questions this places a significant burden on the judge, who is often provided with insufficient time to prepare for such a role, and it creates a perception of bias.
• It is entirely unfair to place this burden on a legal representative for another party. It compromises the lawyer and impairs their ability to focus on their own case. It creates a perception of partiality. It is also ineffective as a lawyer cannot be responsible for editing, selecting or approving questions. Additional work is unremunerated (of course it is).

Implementing these provisions is good. But implementing them for only a minority of cases compounds an already impossible conundrum for judges dealing with old cases without the solution of QLR but now operating in the shadow of stat guidance that makes it plain that their imperfect solution of just doing it themselves won’t wash.

Implementing these provisions with insufficient numbers of lawyers, insufficient fees, insufficient training is …not perfect. For sure, the numbers of QLRs immediately required will start small, but it will ramp up in due course to thousands a year. I’m not sure what prospects there are of the numbers building to the required level, so I’m afraid that I think that this is delaying the inevitable. Which is that everything will grind to a halt when demand outstrips supply. There will be no way out for judges. dealing with litigants in person who need to be given an opportunity to test and challenge evidence.

Incidentally, someone on twitter suggested criminal advocates might do the work, not least because some have experience of the equivalent scheme in crime. I think that might work in relation to fact finding hearings. I’m not so sure if lawyers with no family experience would find the task of asking questions in welfare hearings (or FR final hearings, say) that easy.

I have, I now realise, accidentally written a blog post. It’s not unlike the one I wrote a couple of weeks ago, I suppose because it’s been on my mind since then and I realise that I still can’t really wrap my head around out how all this is going to work. It isn’t going to be perfect and I don’t think it’s going to be good either. I hope I am wrong and it will all be fine. Or at least that it will be a marginal improvement on the current situation.

Weather forecasts are sometimes wrong. My forecast may be wrong too. But I won’t be taking my winter coat on that train on Tuesday. Because we all know it’s gonna be blinkin’ hot. And there’s a good chance my train will grind to a halt leaving me stranded between stations, in a perfect – but somewhat sweaty – metaphor.

Right, I’m going for a lie down in a hot, dark room…wake me up when it’s raining and the national emergency is over.