It is, to me, one of the curiosities of public life that U-turns are usually portrayed in the mass media as a sign of official/political incompetence. To me the idea that someone might change their mind because they had had second thoughts is a sign of maturity and intelligence.
Whether you regard the Secretary of State for Justice as incompetent or intelligent and mature, there is no doubt that his recent written statement to the House of Commons on the change of direction on Criminal Legal Aid reform is important.
The issues are:
1 Reductions in fees paid to legal aid applicants. They had been reduced in March 2014 by 8.5%. A similar sized reduction was planned for July 2015, but this was put on hold while the MoJ did not work to ensure that such a cut would be unlikely to reduce the quality of criminal advocacy. In his January 2016, Michael Gove has announced that there will be a further postponement of the proposed cut. “I have also decided to suspend, for a period of 12 months from 1 April 2016, the second fee cut which was introduced in July last year.” Whether or not that fee cut will be brought back into effect in April 2017 will depend on how the market for the provision of criminal legal aid services has developed in the meantime.
2 Consolidation of provision of criminal legal aid. There has long been a view in Government that there are too many soicitors’ firms offering criminal legal aid services. Various proposals have been made to reduce their number. The most draconian proposal was that existing criminal legal aid contract should be replaced by new contracts that would be awarded, following a tendering process, in which contracts would be awarded to those firms who submitted the lowest bids for legal aid work.
Unsurprisingly this was fiercely resisted by solicitors on the basis that, if implemented, this would be a ‘race to the bottom’ – standards would fall because services would only be offered by those charging the least.
Mr Gove’s predecessor, Chris Grayling, came up with an alternative plan, known as ‘dual contracting’. Under the dual contracting system, two types of contract were to be awarded to criminal legal aid firms.
- An unlimited number of contracts for ‘own client’ work based on basic financial and fitness to practise checks – in others words continued payment for representing existing and known clients.
- And a total of 527 ‘duty’ contracts awarded by competition, giving firms the right to be on the duty legal aid rota in 85 geographical procurement areas around the country, with between 4 and 17 contracts awarded in each. In other words, these contracts would allow a limited number of firms the chance to represent new entrants to the criminal justice system.
The dual contracting model was designed to meet concerns expressed by the legal profession about price competition.
A tender process under this proposed scheme did go ahead, but ended very badly with a lot of adverse publicity about both process and outcome.
The primary arguments against these alternative proposals were
- Many solicitors firms feared that the award of a limited number of “dual” contracts – with a restriction therefore on who could participate in the duty legal aid rota would lead to a less diverse and competitive market.
- Many barristers feared that the commercial model being designed by some solicitors’ firms would lead to a diminution in choice and potentially quality.
- And, possibly the most compelling argument, many also pointed out that a process of natural consolidation was taking place in the criminal legal aid market, as crime reduced and natural competition took place.
In the face of considerable potential litigation (99 cases in the pipeline, plus a judicial review challenging the whole process), the Government has announced that this exercise will also be set aside. There will be a further review of the process towards consolidation early in 2017.
3 Quality of criminal advocacy. In the midst of all this, the report from Sir William Jeffrey on how to enhance the quality of criminal advocay has not been forgotten. Mr Gove stated:
I will also bring forward proposals to ensure the Legal Aid Agency can better support high quality advocacy. Furthermore, I intend to appoint an advisory council of solicitors and barristers to help me explore how we can reduce unnecessary bureaucratic costs, eliminate waste and end continuing abuses within the current legal aid system. More details will follow in due course.
I don’t think that criminal legal aid practitioners are completely off the hook as regards potential changes to how they work. But for the immediate future, things are clearer.
For Mr Gove’s written statement, go to https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting.
For further information on the Jeffrey Review, see this blog at http://martinpartington.com/2015/11/05/enhancing-the-quality-of-criminal-advocacy/
Stephen Lawrence was a Black British man from Eltham, south east London, who was murdered in a racially motivated attack while waiting for a bus on the evening of 22 April 1993. This shocking incident was the subject of an inquiry, led by Sir William Macpherson, which, when it reported in 1999, found among other things that there was ‘institutional racism’ in parts of the criminal justice system.
This in turn led the Judicial Studies Board to establish a programme of ethnic awareness training as part of its programme.
Notwithstanding the concerns raised by the Lawrence case, the present position is that:
- BAME individuals currently make up over a quarter of prisoners – compared to 14% of the wider population of England and Wales.
- BAME people make up a disproportionate amount of Crown Court defendants (24%).
- Those who are found guilty are more likely to receive custodial sentences than white offenders (61% compared to 56%).
In light of these findings the Government has asked (January 2016) David Lammy MP to lead a review of the Criminal Justice System in England and Wales to investigate evidence of possible bias against black defendants and other ethnic minorities. With significant overrepresentation of black, Asian and minority ethnic (BAME) individuals in the criminal justice system, the review will consider their treatment and outcomes to identify and help tackle potential bias or prejudice.
He has been asked to report by early 2017.
As I note in my book Introduction to the English Legal System, the Youth Justice system has undergone enormous change in the last 20 years.
The current Government has, however, launched a review of the system and in February 2016 published the interim findings of the Review.
The review is led by Charlie Taylor, the former Chief Executive of the National College of Teaching and Leadership, the former head teacher of a school for children with complex behavioural, emotional and social difficulties, and an expert in managing young people’s behaviour.
The report finds that:
since 2006/07 the number of children in custody has declined by 64% to its lowest recorded level
of those children who remain in custody, almost two thirds reoffend within a year of release
around 40% of young people in under-18 Young Offender Institutions (YOIs) have not been to school since they were aged 14, and nearly nine out of 10 have been excluded from school at some point
children in YOIs are only receiving 17 hours of education every week against an expectation of 30 hours
The interim proposals from the review include:
re-designing the youth estate so that it can cater for a smaller, but more challenging, group of children in custody
placing education at the centre of youth custody, by drawing on the culture of aspiration and discipline which is evident in the best alternative provision schools
replacing youth prisons with smaller secure schools which help children master the basics in English and maths as well as providing high quality vocational education in a more therapeutic environment
giving local areas greater say in the way children are managed by devolving responsibility, control and money from Whitehall.
In addition, the review is also examining the way young offenders are dealt with in court and the sentences available, how to prevent offending in the first place and how to reintegrate children back into the community following custody.
A final report is expected in July 2016.
For further details of this important policy review go to https://www.gov.uk/government/news/review-of-the-youth-justice-system
I have already noted the adoption by the UK Parliament of a procedure whereby Bills, or parts of Bills, which are certified by the Speaker of the House of Commons as applying to England alone will be voted on solely by MPs for English constiuencies. (See this blog 25 October 2015. The entry sets out in diagrammatic form the additional stages that a Bill to which these rules apply will have to go.)
We now have had the first example of a Bill being subject to the new Rules. When the Housing and Planning Bill 2015 was introduced in the House of Commons in October 2015, it was the subject of a Speaker’s Certificate that certain clauses did apply to England only. The original certificate has been replaced by a new certificate reflecting changes that have been made to the bill.
A key part of the process involves the referring of the Bill to a Legislative Grand Committee. In January 2016, there was a short debate on this issue which revealed in particular the complaints of Scottich MPs that they were being treated as second class citizens.
To see the Speaker’s Certificates on the Bill, go to http://services.parliament.uk/bills/2015-16/housingandplanning/documents.html.
For the debate on the referral to the Legislative Grand Committee go to http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160112/debtext/160112-0003.htm#16011280004400
On 29th January 2016, a pilot scheme was launched designed to give greater publicity to the work of the Court of Protection.
This is a specialist Court which makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test. The Court of Protection’s main base is in London but it also sits throughout England and Wales.
The Court of Protection was established by the Mental Capacity Act 2005. It is responsible for:
- deciding whether someone has the mental capacity to make a particular decision for themselves
- appointing deputies to make ongoing decisions for people who lack mental capacity
- giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
- handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
- making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
- considering applications to make statutory wills or gifts
- making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.
It deals with about 25,000 applications under the Act each year. A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.
A new Pilot Practice Direction will apply to new proceedings issued from 29 January 2016. The Practice Direction effectively changes the default position from one where hearing are held in private to one where hearings are held in public with reporting restrictions to protect identities. This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them.
The work of the Court has not been totally hidden from public view.
- Court of Protection judgments have been routinely published since 2010.
- Serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous.
- Committal hearings where a custodial sentence is imposed are also held in public.
Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing. Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.
This follows on from the development of practice in the Family Court where, for the last 6 years, accredited media have been able to report on proceedings. It is accepted that many will want these proceedings to be private; the pilot is designed to provide evidence about how the balance between publicity and privacy might be improved.
For further information see https://www.judiciary.gov.uk/announcements/court-of-protection-prepares-to-open-up/
I argue in my book that change is the key to understanding what is currently happening to the English legal system, and within that the legal profession.
In January 2016 the Law Society published its own challenge to the legal profession, looking at current trends and how they may have developed by 2020.
The press release accompanying publication of The Future of Legal Services states:
Changes to legal services will have an inevitable impact on the solicitor profession. We have identified the key drivers for change in the current landscape of legal services, and attempted to predict how solicitors’ and lawyers’ interests may change in the future, where they will face competition and what opportunities may present themselves in a changing market.
This report presents findings drawn from a range of sources: a literature review, round table discussions and interviews with a range of practitioners across different practice types, firm visit reports, and the outcomes from a series of three futures panels.
The key drivers of change in the legal services market can be clustered into five groups:
- global and national economic business environments
- how clients buy legal services (including in-house lawyer buyers, as well as small and medium-sized businesses and the public)
- technological and process innovation
- new entrants and types of competition
- wider political agendas around funding, regulation and the principles of access to justice
It seems inevitable that solicitors and lawyers face a future of change on a varied scale, depending on area of practice and client types. Business as usual is not an option for many, indeed for any, traditional legal service providers. Innovation in services and service delivery will become a key differentiating factor.
Two particular points stood out to me from an initial reading of what the Law Society has to say:
- They clearly take the view that the current model for the small ‘high-street’ practice has little future, particular as current practitioners retire. It is not a sustainable model for the future.
- The Law Society notes that 25% of practitioners now work as in-house counsel, so the amount of reliance of the corporate sector on firms of solicitors in private practice would seem to be reducing.
At the same time, the Law Society is convinced that imaginative and innovative lawyers will be able to develop new forms of legal service which will both offer them a living and provide a needed service to the public.
The report reinforces the view that students coming new to the study of law will have a lot to keep up with if they are to understand the professional world they may hope to enter in just 5 – 6 years’ time.
To see the report, go to http://www.lawsociety.org.uk/news/stories/future-of-legal-services/
Business problems decline but are costly
- The number of legal problems faced by small firms reduced significantly over the last two years reflecting better trading conditions. The most common problems related to trading, employment and taxation. Other businesses were the main source of problems.
- Half of firms reporting a legal issue said it had a negative impact; one-quarter of them reported loss of income and one-fifth reported health related problems. Total annual losses to small firms due to legal problems is estimated at £9.79bn.
- Larger small businesses, and businesses with BME and disabled business owners-managers, were most likely to experience problems.Limited engagement with legal service providers
- The large majority of firms had little contact with legal advisers. Less than one in 10 either employed in-house lawyers or had a retainer with an external provider. Over half of firms experiencing a problem tried to resolve it by themselves. When advice was sought, accountants were consulted more often than lawyers.
- There was a marked decline in the use of external support providers between 2013 and 2015, reflecting the decline in problems. Use of solicitors in the previous 12 months fell from almost 20% to almost 10%; and accountants from over 60% to just over 49%.Mixed attitudes to legal service providers
- Only 13% of firms viewed lawyers as cost effective – little improved since the LSB’s 2013 survey. Microenterprises were the least likely to view lawyers as affordable.
- Almost 50% of respondents strongly agreed or agreed with the statement that they use legal service providers as a last resort to solve business problems compared with 12% who disagreed strongly or disagreed.
- Satisfaction that law and regulation provide a fair trading environment increased from 30% in 2013 to 45% in 2015 – improving economic conditions as well as improvements in the regulatory environment may explain this change.
This report was one of the items used by the Competition and Markets Authority in deciding to undertake a Market Review of legal services.
To read the research report in full go to https://research.legalservicesboard.org.uk/wp-content/media/PUBLISH-The-legal-needs-of-small-businesses-19-October-2015.pdf