Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Changing the Court and Tribunal estate – revised principles 2019

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Introduction

The court and tribunal estate has changed significantly since 2010. In making its changes, the Ministry of Justice applied a number of key principles: maintaining access to justice, delivering value for money, and ensuring operational efficiency. Savings achieved are being used to finance reform of the Courts and Tribunals service. The reform programme will change the ways court and tribunal services are delivered. In particular, improved technology will be designed to enable people to access justice in simpler, easier and swifter ways. Provision for hearings in courtrooms will remain essential for the delivery of justice, but fewer interactions with the court and tribunals system are likely to happen in a courtroom.

Nonetheless, court closures are controversial. Many involve much-loved local historic buildings. Many complain about the time needed to get to an alternative court/tribunal building if an existing venue is shut. In 2018, the Ministry of Justice launched a consultation on the principles in should adopt in relation to any further closures it might argue are necessary. In ‘Fit for the Future: Transforming the Court and Tribunal Estate’, published in May 2019, the Government set out its response to this consultation.

The Government has stated “We need to consider further court closures in the context of our modernisation approach, which will ensure that we provide fair and proportionate access to justice. We expect an increase in the number of people using remote access to the courts which will reduce the use of court and tribunal buildings in the future. We make a commitment that we will not act on that assumption by proposing to close courts unless we have sound evidence that the reforms are actually reducing the use of those buildings.”

Travel time

The issue that worried respondents most was how the time of travel to and from court was being assessed. The Ministry had proposed that the benchmark should be an ability to get there and return home within a day. Respondents argued this was too vague. The Ministry of Justice has responded: “ We have therefore enhanced our principles to make it clear that we expect journeys to court to be reasonable, and set out that for the overwhelming majority of users a reasonable journey would be one that allowed them to leave home no earlier than 7.30am, attend their hearing, and return home by 7.30pm the same day, and by public transport where necessary. We have also set out in much greater detail how we will measure this, what other factors we will consider – for example, the circumstances of users including those that are vulnerable, and the mitigations we can apply when users have difficulty attending court.”

Court/tribunal buildings design

While people were broadly positive about proposals regarding the design of court and tribunal buildings, there was a clear message that the security of those who use and work in our courts and tribunals needs to be paramount, along with ensuring suitable facilities for vulnerable users. The Court and Tribunal Design Guide (published at www.gov.uk/government/publications/court-and-tribunal-design-guide) provides a flexible room design which includes enhanced security standards and provides for the needs of vulnerable victims and witnesses.

Digital support officers

Digital Support Officers will support the introduction and longer-term support for digital services in local courts, as well as support which will assist users who do not wish or are unable to access online services. This development was broadly welcomed. There were concerns regarding the resourcing of these services. The Ministry has stated that it “will ensure that the right number of staff support these activities.”

Future closures

The Ministry expects that increased use of digital services will mean that fewer court and tribunals hearings will be needed in a traditional courtroom setting, and therefore fewer buildings will be needed. However, “we are committed to having clear evidence that these reductions are happening before we decide to close any further sites.”

Revised estates principles

“• Everyone who needs to access the court and tribunal estate should be able to do so. Journey times to court should be reasonable and take into account the different needs and circumstances of those using the courts. Mitigations are available for those who experience difficulty attending court.

  • We want to make sure that our buildings are in the best condition possible for those that use them and that they can be maintained at a reasonable cost to the taxpayer.
  • We will focus on the provision of multijurisdictional centres which are able to provide flexible access for the people who use our courts and tribunals. We will harness the power of technology to offer enhanced access and greater flexibility.”

Comment

Revised statements of principle will not prevent future controversy. Indeed, at the end of October 2019, the Justice Select Committee issued a very critical report on the whole court reform programme in general and the court closure programme in particular. There have been many critical comments in the professional legal press.

My own view is that the court/tribunal reform programme will, in time, be an improvement on the present system. However as all those who come into contact with courts and tribunals will have to adapt to the new system, there will be nervousness ahead of proposed changes that have not yet been implemented.

The item is adapted from https://www.gov.uk/government/consultations/fit-for-the-future-transforming-the-court-and-tribunal-estate which sets out both the original consultation paper and the Government’s response.

The Justice Committee critique is at https://publications.parliament.uk/pa/cm201920/cmselect/cmjust/190/19003.htm

The Administrative Justice Council’s first Annual Report

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Interesting report on the first year’s work of the Administrative Justice Council
It is taking forward many of the issues identified by its predecessor bodies, but the work on the interfaces between tribunals and ombudsmen is new.

UKAJI

The Administrative Justice Council’s first Annual Report

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On 6th November, the Administrative Justice Council published its first annual report for 2018-19.

The Administrative Justice Council (AJC) was set up in March 2018 and is the successor body to the Administrative Justice Forum. It provides oversight and advice on administrative justice across the UK.  Chaired by the Rt Hon Sir Ernest Ryder, Senior President of Tribunals, the Council seeks to make the administrative justice system more efficient, fair and accessible.

The scale of administrative justice is vast, often called the ‘cinderella’ of the justice system.   It covers all government decisions, including complaints and appeals on immigration and asylum, social security, housing, education, health care, planning, and tax.

Over the year, the AJC has identified four key areas of focus: improving first instance government decision-making; the impact of the courts and tribunals modernisation programme; ombudsman reform and improving the relationship between…

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Written by lwtmp

November 8, 2019 at 11:53 am

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A big day in the Supreme Court

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Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.

For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.

The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.

That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar.  It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.

However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days.  That was the average amount of time needed to sort out the Queen’s Speech.

The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods|) but other Parliamentary business does continue.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

Justice in Wales – a developing picture

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Until relative recently it was possible to state that, for all practical purposes, the justice system in Wales was the same as the justice system in England.

Since devolution began, following enactment of the Government of Wales Act 2006, this statement needs qualification. Following the passing of the Wales Act 2017, the pace of change has quickened.

Two major initiatives are in progress. First, an Independent Expert Advisory Committee has been looking at the operation of Justice in Wales. Second, the former Lord Chief Justice, Lord Thomas, has been commissioned by the Welsh Government, to undertake a review of justice arrangements in Wales.

Lord Thomas’s review is expected in Autumn 2019. This note reports on the first report from the Independent Expert Advisory Committee.

The Committee’s terms of reference are to:

  • review the operation of the justice system in Wales on an ongoing, periodic basis.
  • make recommendations that ensure that the justice system in Wales keeps pace with both Assembly and Parliamentary law making within the single jurisdiction.
  • monitor the effectiveness of administrative arrangements on justice in Wales and make recommendations to deliver efficient and effective justice services across the devolution boundary, building on examples of good practice and co-operation.

The report states:

The Committee is considering the effects of laws passed by the National Assembly for Wales and the UK Parliament on the operation of the justice system within the single legal jurisdiction in England and Wales and is working strategically to identify key challenges in the justice landscape in Wales, how they can be overcome and wider opportunities for better administration of justice.

These challenges and opportunities cover all areas of the single legal jurisdiction, including criminal justice arrangements; courts and tribunals; prisons and probation; legal practice and the judiciary.

The Committee is also monitoring any issues relating to the relationship between reserved and devolved tribunals.

The Committee is also considering the wider implications of policy developments in UK government on the operation of justice in Wales, in order to recommend sustainable long-term solutions that would improve delivery. This work provides opportunity for a structured approach to tackling challenges identified in this first report on the operation of justice in Wales.

The report also states:

The key issues the Committee are currently focusing on are divergence in laws and accessibility of Welsh laws. The main priorities are to ensure that the impacts on the justice system of diverging laws and legislation are properly identified, accessibility of Welsh laws is improved and that there is continually improving collaboration between the MoJ and Welsh Government officials.

This is therefore work in progress, the outcomes from which are not yet clear. But what is clear that over coming years the justice system in Wales will increasinly diverge from that in England – an issue on which lawyers both in England and Wales will need to take note.

The first report of the Independent Expert Advisory Committee is at https://www.gov.uk/government/publications/justice-in-wales-first-report-of-the-independent-advisory-committee-on-justice-in-wales

 

Written by lwtmp

September 20, 2019 at 9:51 am

Reviewing the Criminal Legal Aid fee schemes

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There is increasing recognition that the criminal legal aid scheme is not delivering an adequate service for the Criminal Justice system. Practitioners have long argued that cuts have gone too far; there have been strikes, threats of strikes and last minute deals cobbled together to try to stop the wheels falling off the bus completely.

In December 2018 the Government announced that there would be a more fundamental review of the criminal legal aid scheme.

More detail about the scope of the review was announced in March 2019. Thus the review will consider criminal legal aid throughout the life cycle of a criminal case, including:

  • pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
  • advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
  • advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
  • litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme

The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to:

  • Her Majesty’s Court and Tribunals Service (HMCTS) reform, including the digitisation of the criminal trial process;
  • the Attorney General’s review of disclosure of evidence, and the need to prevent trials collapsing because of failure to disclose evidence; and
  • wider modernisation work being pursued by the Home Office and the police.

The Government has stated that the overall objectives of the review are:

(1) To reform the criminal legal aid fee schemes so that they:

  • fairly reflect, and pay for, work done
  • support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
  • support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
  • are consistent with and, where appropriate enable, wider reforms
  • are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
  • ensure cases are dealt with by practitioners with the right skills and experience

(2) To reform the wider criminal legal aid market to ensure that the provider market:

  • responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
  • operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
  • operates to ensure the right level of legal aid provision and to encourage a diverse workforce.

The plan is to produce a report by the end of Summer 2020.

As part of this peogramme the Crown Prosecution Service has  been undertaking work to develop proposals for the remuneration of prosecution lawyers. It plans to finish this work by the end of September 2019.

As interim measures, the CPS has proposed changes to fees payable to prosecutors to be implmented from 1 Sept 2019. In addition, the Ministry of Justiice has agreed with the Criminal Bar Association and the Bar Council that the elements of the review will be accelerated:

  • consideration of the issue of unused material;
  • fees paid for cracked trials; and
  • uplifts in paper-heavy cases.

The intention is for interim proposals to be made by the end of September. The impact of the prorogation of Parliament and the possibility of a General Election may alter these timings.

Details about these developments may be found at:

For the overall review https://www.gov.uk/guidance/criminal-legal-aid-review#history

For the CPS work see https://www.cps.gov.uk/cps/news/proposal-between-crown-prosecution-service-ministry-justice-attorney-general-criminal-bar

 

 

Written by lwtmp

September 19, 2019 at 12:09 pm

Re-thinking legal services regulation

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I have reposted this excellent blog by Stephen Mayson, who is undertaking very important work on the need to further reform the regulatory structures for the legal professions.

StephenMayson

My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here).  This post is extracted from it.

While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.

For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure.  These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.

This lack of follow-through has led to increasing challenges to the integrity…

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Written by lwtmp

September 19, 2019 at 11:19 am

Unduly lenient sentences: scheme extension

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For many years, the victims of a number of serious crimes have been able to make an application to the Solicitor General that the sentence imposed in their case was too lenient. Crimes such as murder, robbery, and a range of terror offences were covered by the scheme.

If the Solicitor General agrees he/she may refer the case to the Court of Appeal for a reconsideration of the sentence. In 2018, around 100 convicted criminals had their sentences increased under this scheme.

In its Victims Strategy, published in November 2018, the Government stated that it would review the scheme to see whether it should be extended to more offences.

The Government has announced (September 2019) that there should be an extension of the scheme to 14 further offences, including offences of controlling and coercive behaviour, as well as child sexual abuse offences, such as those involving the taking, distributing and publishing of indecent images of children and abusing a position of trust with a child.

Implementation of these decisions requires the approval of secondary legislation which is expected in the autumn 2019.

Further details of the changes is at https://www.gov.uk/government/news/more-victims-able-to-challenge-unduly-lenient-prison-sentences.

The Victims Strategy 2018 was noted in this blog on 29 November 2018

Written by lwtmp

September 19, 2019 at 9:58 am