As part of the programme of reform of the Family Justice system, the Government has just announced a consultation on how professional standards of those giving expert testimony in family cases might be improved.
The Consultation Paper states:
‘Experts play an important role in assisting the court by providing advice on matters requiring specialist expertise outside the knowledge of the court. In family proceedings relating to children, they may come from many different professions and disciplines including doctors, nurses, psychologists and independent social workers.
‘The standards in this paper are a response to a recommendation made by the Family Justice Review that standards should be developed for expert witnesses in the family courts.’
What the paper proposes are ‘high level’ standards to which those called as experts in family cases would have to agree to. As the paper says:
‘The Ministry of Justice proposes that, in publicly funded family proceedings relating to children, solicitors may only instruct experts who meet the relevant standards. In both publicly and privately funded cases, the expectation is that parties will provide sufficient information to satisfy the court not only that an expert is needed, but also that the proposed expert meets the standards.’
The standards, which have been drawn up by the Family Justice Council, cover areas including:
- the expert’s area of competence and its relevance to the particular case;
- maintaining expertise through Continuing Professional Development activities;
- statutory registration or membership of an appropriate professional body;
- applying the standards to overseas experts;
- compliance with the Family Procedure Rules and Practice Directions;
- seeking feedback from solicitors and the courts; and
- good practice in relation to fees in publicly funded cases
The Consultation runs until 18 July 2013. The Government hopes they will become effective later in 2013.
For more detail go to https://consult.justice.gov.uk/digital-communications/expert-witnesses/consult_view
The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:
1. Offender Rehabilitation Bill
This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.
For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.
The main benefits of the Bill would be to:
- Reduce re-offending rates for the most prolific offenders.
- Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers
The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.
The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.
2. Anti-social Behaviour, Crime and Policing Bill which contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.
3. Immigration Bill will have some impact on rights of appeal in immigration disputes/
In addition there are two draft Bill which will have some impact on the English Legal system, when enacted.
1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:
- · Reduce or remove burdens on businesses and Civil Society and facilitate growth
- · Reduce or remove burdens on public bodies, the taxpayer or individuals
- · Tidying up the statute book by repealing legislation that is no longer of anypractical use.
2 Draft Consumer Rights Bill, designed to
- Give consumers clearer rights in law and to make sure that consumer rightskeep pace with technological advances.
- Provide important new protections for consumers alongside measures to reduce regulation for business, all with the aim of making markets work better.
In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.
2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.
It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.
One of the policy features which underpin the civil court system is that the civil courts should as far as possible be self-funding. (This aim does not currently include judicial salaries and pensions.)
The current position is that in 2011/12 the cost of running the non-criminal business administered by Her Majesty’s Courts and Tribunals Service (HMCTS) was around £713m. Of this amount 67% was funded through fees (£480m) with the remaining 33% funded by the taxpayer (£233m) as part of the Ministry of Justice’s spending settlement.
The tax-payer subsidy is made up of two elements:
- Fees set below full-cost levels, i.e. the fee charged does not cover the actual cost to the court or tribunal of processing the work being charged.
- Fee income foregone under a system of fee remissions (waivers). In 2011/12 approximately 171,000 fee remissions were granted at a total value of £27.8m.
The Government’s overall aim is to reduce the taxpayer subsidy for the civil business by ensuring that fee income covers 100% of the cost of providing services, minus the income foregone to the remission system. For tribunals the aim is to maximise cost recovery and separate targets below full cost recovery have been agreed by the Ministry of with Her Majesty’s Treasury.
To achieve this objective, basic fees will need to rise – to address the first point.
This blog refers to a consultation on the second issue – fee remission – designed to introduce great uniformity of approach and better targetting of the remission regime to the very poor. In effect, the remission system relies on a means-test, and the consultation paper indicates that the means-test will become tougher for all but the very poor.
Details of what the Government is proposing are set out in https://consult.justice.gov.uk/digital-communications/fee-remissions-court-tribunals/consult_view
One point should be noted. In the good old days, it was a principle of government that any consultation should last for at least 3 months – to enable those who might wish to comment find the time to assemble their thoughts, and draft their responses. There is a notable current trend that consultation periods should be much briefer. The consultation period for the current exercise is only a month. The consultation on the judicial review changes, noted before, was similarly attenuated.
Last December 2012 I drew attention to the consultation on judicial review announced by the Lord Chancellor, Chris Grayling. Despite my prediction that these proposals would draw a lot of criticism, the Government has announced that they will go ahead broadly as planned. On 9 May 2013 it was announced that they would:
- Introduce a £215 court fee for anyone seeking a hearing in person after their initial written judicial review application has been turned down.
- Ban people from seeking a hearing in person if their initial written application has been ruled as totally without merit.
- Halve the time limit for applying for a judicial review of a planning decision from three months to six weeks.
- Reducing the time limit for applying for a judicial review of a procurement decision from three months to four week.
In addition that Government is still contemplating separate proposals which would see the fee for a Judicial Review application increase from £60 to £235.
Two consultation proposals are not being taken forward. They were:
- For cases based on a continuing issue or multiple decisions, clarifying the point when the time limit starts, to avoid long delays.
- Scrapping oral renewals for any case which has already had a hearing before a judge on substantially the same matter, for example, at a court, tribunal or statutory inquiry.
These changes do not require legislation, but only changes to court rule
For the full text of the Government’s response see: https://consult.justice.gov.uk/digital-communications/judicial-review-reform
Given the fact that the bulk of delay arises from the huge number of applications in immigration and asylum cases, it is in my view unlikely that these changes will have a significant impact, though the imposition of higher and new fees may deter some applicants. We shall see.
I always thought that one of the important aspects of the National Curriculum was the introduction of citizenship education. When done well, it teaches young people to understand, challenge and engage with the main pillars of our democracy: politics, the economy and the law. It has also led to some quite brilliant and inspiring project work. Citizenship education is central to how young people can be given the confidence to engage and navigate the law and legal processes.
However, the Department for Education is now conducting a review of the National Curriculum and has issued a consultation document for public comment. Of most interest are the proposals for citizenship education in key stages 3 and 4.
The proposed new curriculum removes the explicit reference to ‘political, legal and human rights, and the responsibilities of citizens’, present in the current curriculum leaving only a vaguer reference to the ‘precious liberties of the citizens of the United Kingdom’.
Other references to ‘influencing decisions affecting communities…’ and ‘strategies for dealing with disagreement and conflict’ have also been removed; although there is now an explicit reference to the ‘importance of personal budgeting, money management and a range of financial products and services’.
The consultation closes on April 16 2013, so if you are moved to comment you’ll need to act fast. You can get further information from the Citizenship Foundation, who have provided a handy critique and guide to proposed changes.
In addition, campaign group Democratic Life has an online response form that you can use. It is pre-filled with thoughts about the citizenship curriculum, which you can leave in or edit as you see fit. It is sent automatically to the Department for Education’s consultation team, and a copy is sent to you.
The April Newsletter from Law for Life: the Foundation for Public Legal Education contains a link to a really excellent study on the development of Public Legal Education in Canada – a country far in advance of experience here. Written by Clare Shirtcliff, who works for Advicenow, an independent, not-for-profit website providing good quality information on rights and legal issues for the general public in England and Wales, it reports on a number of extremely interesting initiatives that have been taken in a number of Canadian provinces.
The paper considers a number of issues:
1 how to support self-representing litigants;
2 doing public legal education and out reach work;
3 examining how social media can be used for PLE; and
4 considering where the funds for PLE can come from.
It is a really interesting and clearly written paper which should provide a lot of thought for those in the UK who accept the importance of PLE as a part of the English Legal System landscape.
Find out more about Law for Life at http://www.lawforlife.org.uk/