Response to the Transparency and Open Justice Board proposed “key objectives”

By Celia Kitzinger, 3^rd March 2025

The Transparency and Open Justice Board recently sought views on the Board’s proposed key objectives.

The Board was created in April 2024 by the Lady Chief Justice, who said that it would “…set objectives for all Courts and Tribunals, focussing on timely and effective access in terms of listing, documents and public hearings. It will engage with the public and interested parties to make sure that these objectives properly reflect what should be delivered by a modern justice system.”  Those objectives were published on 6^th December 2024, with responses invited by 28^th February 2025.  The Board says that the key objectives “… represent the high-level outcomes that, once finalised, will guide the Board’s work; help to identify areas where changes can and should be made; and, finally, will be used to measure the success of the Board’s work”.  (https://www.judiciary.uk/wp-content/uploads/2024/12/Transparency-and-Open-Justice-Board-Key-Objectives-Engagement-explanatory-notes-1.pdf)

The Board’s consultative “Key Objectives” document consists of three numbered  paragraphs (§[1] is confusingly divided into numbered sub-paragraphs) as follows, and reproduced here in its entirety: 

Transparency & Open Justice Board

Key Objectives: Proposals

1. The principles of transparency and open justice require the proceedings and decisions of Courts and Tribunals to be open and accessible to the public and the media. On a practical level this should include: 

(1) timely and effective access to information about cases that are pending before a Court or Tribunal including: 

(a)  identification of the principal subject matter of the case and, if available, the date of the next hearing; 

(b)  for each hearing that has been scheduled: 

• the identity of the case (including the names of the parties); the Court or Tribunal before which the hearing is to take place; where the hearing is to take place;
  the date and time of the hearing; 
• the general nature of the hearing, e.g. application, case management hearing, or trial; 
• whether the hearing is to be held in public; and, when known, 
• the name(s) of the judge(s)/magistrate(s)/tribunal member(s) hearing the case; and 

(c) details of any reporting restrictions that apply to a case and the terms of any restrictions; 

(2) timely and effective access to the core documents relating to the proceedings held by the Court or Tribunal, including: 

(a)  the document that identifies the principal subject matter of the case e.g. a Claim Form or Appeal Notice in a civil or tribunal case, or the Summons or Indictment in a criminal case; 

(b)  the evidence (including any expert and/or audio/visual evidence) that is, or has been, considered by the Court or Tribunal at a hearing in public; 

(c) any written submissions (including skeleton arguments) that are, or have been, considered by the Court or Tribunal at a hearing in public; and 

(d) any public judgments or Orders of the Court or Tribunal.

(3) effective access to hearings of Courts and Tribunals held in public, including: 

(a)  enabling members of the public and media representatives to attend the hearing in person (including maintaining designated spaces for media representatives) or remotely by video link where appropriate; 

(b)  permitting, where appropriate, broadcasting of the whole or part of the hearing; and 

(c)  enabling transcripts to be obtained of proceedings in public (subject to any applicable fees). 

2. Open justice is the default position but there are recognised limitations to the principle. Some of the limitations are imposed by statute or statutory rules, which are set by Parliament not the Judiciary; any changes are a matter for Parliament, not the Judiciary. Sometimes, a Court or Tribunal will only be able to do justice in a particular case by departing from the principle of open justice. Any such departure from open justice must be necessary, proportionate, and justified. 

3. In some areas, the ability of the Courts and Tribunals to deliver open justice is dependent upon the availability of resources and support from the Ministry of Justice and HMCTS. 

Our Response

Responses were requested via a Microsoft form with just four questions – and an undeclared maximum number of characters assigned to each response box so that my text was cut off mid-flow when I pasted it in and I had to edit it down (repeatedly) until the form accepted it. (Please, Mr Justice Nicklin, if you’re going to use this response format again, let us know how many characters we have for each response box so that we can draft our responses accordingly – not having this information wasted a lot of time!) I’ve reproduced my response here: the only ways in which what follows differs from the submitted document are that I’ve corrected three typos and added the footnotes.

Q1 Please state your name and address here

Celia Kitzinger, Open Justice Court of Protection Project (founded in June 2020 to support the judicial aspiration for transparency  openjustice@yahoo.com

Q2 Do you agree that these are the correct objectives? 

Insofar as they go, yes  – they’re pretty self-evident as articulations of open justice principles, and as such they already form the basis of a lot of campaigning for transparency – but see [3] below for additions. 

The proposal for moving forward with them is disappointing insofar as it asks only the Courts and Tribunals to “carry out an evaluation of the extent to which their current practice and procedure achieve the Key Objectives“.  Many open justice organisations are also equipped to carry out this evaluation – in fact many of us have done so (repeatedly over the years, in relation to different objectives) and have made proposals already as to how what you are now calling your “Key Objectives” could be realised.^[1]  At the very least, Courts and Tribunals need to consult with court observers as to the extent to which their current practice and procedure achieve the “Key Objectives” and what changes could improve the situation. But I would hope that you would invite us to make independent submissions to the Board on the extent to which the Courts and Tribunals we seek to report on achieve the Key Objectives.  Otherwise you will have a wholly lopsided view of the extent to which the Key Objectives have been realised.

I also note that a common response over the years to our calls for open justice principles to be properly implemented has been that changes need time and sufficient resources.  I have been hearing that message for years in relation to listings of hearings (Courtel/Courtserve listings are dismally inadequate) and access to hearings (insufficient staffing levels, staff training needs). Is there any evidence that resourcing is going to change? If not, do you risk setting unachievable objectives?

3. Do you think there is something that has been missed from the objectives? If yes, what else do you think should be included?

Yes.  

1(1)(b) should include an indication of the modality of the hearing (e.g. remote, hybrid, in person – and whether a link is available for public observation of an in-person hearing). It should also include where possible a time estimate for the hearing so that observers can plan accordingly. (In fact the good news is that Courtel/CourtServe does generally include this information – although the High Court does not.^[2])

1(1)(c) needs expanding to cover the procedure in place for challenging reporting restrictions rather than present them as a fait accompli; our Project plays an important role in seeking variations to the so-called “Transparency Order” in the Court of Protection – both in relation to protecting the vulnerable person’s Art 8 right to privacy, and in relation to advancing the public’s Art 10 rights to freedom of information. We find the reporting restrictions handed to us in advance of hearings are often (a) riddled with obvious errors; and (b) show no engagement (at all) with the requisite Art8/Art 10 balancing exercise.  We often assist with this, and the Court of Protection judges have become accustomed to our interventions – sometimes made orally in court, sometimes via email and sometimes via COP 9 formal applications.  

1(3)(a) needs to include reference to the Equality Act and the need to make reasonable adjustments for public observers with disabilities.  For example, we have tried to support a Deaf observer who has struggled because (as I understand it) there are problems with the Court’s new AV platform which – unlike MS Teams – does not have a facility for automatic transcription (which judges have previously given permission for her to use on Teams). We also have observers with impaired hearing who often struggle in physical courtrooms because they’re routinely made to sit at the back so can’t lip-read or because mike quality in hybrid hearings is often very poor. Signs in courtrooms are also difficult for visually impaired observers. Lifts are often broken causing problems for those with mobility issues.^[3]

The words “timely and effective” – as used throughout your document – need careful operationalisation with an understanding of the different perspectives of (a) HMCTS staff (b) judges and (c) those of us seeking to observe hearings. It’s frustrating (for example) that judges complain that we have asked to observe hearings “too late”, when we send a request at 5pm the day before i.e. within an hour of the Courtel/CourtServe listings being published^[4].

Finally, our assessment is that, despite the undoubted ongoing challenges, the Court of Protection has in fact made dramatic improvements in transparency since June 2020.  The key changes we would still like to see relate to:

        (a) naming of applicant/respondent public bodies in the public listings (First Avenue House does this reliably; the regional courts in the COP list on Courtel/CourtServe do not).  There is rarely any legitimate reason to withhold the names of public bodies from publication and it’s not clear to us why this practice in the COP has been allowed for so long. This fits in your Key Objective (1)(b), first bullet point

        (b) Listing of, access to, and reporting restrictions relating to committal hearings for contempt of court (we have made submissions to the MOJ on this). The PD states these should normally be held in public and the applicant and defendant names published in the cause lists. This often doesn’t happen and we believe that family members of protected parties can be subject to effectively “secret” hearings at which they risk prison sentences.

        (c) Listing of, access to, and reporting restrictions relating to “closed” hearings (i.e. hearings from which a judge has excluded a party and their legal representatives).  We have made submissions to the COP about this and the previous vice-president (Hayden J) wrote Guidance which seems to be more honoured in the breach than the observance.

4. Do you think there is something that has been included within the objectives that shouldn’t be? If yes, what? 

Yes.  I don’t see how [2] and [3] are “key objectives” – or indeed, objectives at all.  On a cynical reading, they sound more like reasons why the objectives listed in [1] can’t actually be met.

What next?

We await the next stage of the consultation exercise. We hope the Project will be consulted and properly involved in the proposed implementation and “evaluation” of the objectives. We will report back!

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 590 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and also on X (@KitzingerCelia) and Bluesky @kitzingercelia.bsky.social)

Footnotes

(all added for the purposes of this blog post)

^[1]Evaluations published by the Open Justice Court of Protection project include: Anxious scrutiny or boilerplate? Evidence on Transparency Orders   “Private” Hearings: An Audit by Celia Kitzinger; A review of transparency and open justice in the Court of Protection by Daniel Clark. We have also, in response to a previous consultation exercise back in September 2023, created a set of 20 Key Performance Indicators (KPIs) for the Court of Protection to be used in assessing to what extent the court is delivering on open justice and transparency (see: Evidence for Ministry of Justice Consultation on “Open Justice: The way forward”. I think it’s fair to say there’s been little or no enthusiasm from HMCTS or the court for engaging collaboratively with us in relation to these KPIs.

^[2] The High Court also never includes information what  “the principal subject matter”, which speaks to 1(1)(a) of the Board’s proposal. Curiously, this is so despite the fact that the Transparency Orders for cases heard in the High Court often include explicit orders from the judges as  to how the case should be listed – and this regularly includes listing what the Board refers to as ‘the principle subject matter” (i.e. the issues to be decided by the court).

^[3] We are aware that these access problems also often affect the protected person and their family, and can also affect lawyers and judges with disabilities (see the Disabled Solicitors’ Network, Bringing Disability to the Bar.  The judiciary’s  Equal Treatment Bench Book does specify that considerations relating to disability access “…  apply to everybody who is participating in, or may attend at, a hearing. A physical impairment/disability can impact upon the parties, the representatives of the parties, witnesses, observers, members of the jury, tribunal lay members, clerks and ushers, amongst others. It is important that focus is not on the parties alone. Consideration of adjustment ought to take place where a physical disability impairs any potential participant’s engagement with the court/tribunal process” (my emphasis).  In practice, we’ve not seen much attention paid to disability access for observers.

^[4] There are ongoing discrepancies between the way transparency matters are understood and approached by HMCTS staff, the judiciary, and members of the public.  We are trying to communicate across the divides and explore the different perspectives, e.g. via consultation with senior HMCTS staff, representation at COP User Group meetings and by publishing what we hope might be helpful guidance for judges (see  Fifteen Top Transparency Tips for Judges)