Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Exceptional case funding for legal aid

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For an interesting research report go to this note published by the UK Administrative Justice Institute:

Extending access to Exceptional Case Funding (ECF) through the work of university law clinics

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Written by lwtmp

May 16, 2018 at 11:35 am

Transforming the Justice system – case studies

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It is quite hard for those outside the justice system to know exactly what is going on with the overall transformation programme. But a source of really interesting material is Tribunals Journal published 3 times a year by the Judicial College. (I declare an interest – I have just been appointed to its editorial Board.)

The latest edition, published in December 2017, contains a number of interesting case studies on developments which are relevant to the transformation programme. The following items are particularly worth noting.

Lorna Findlay, who is an Employment Judge, was an early volunteer to receive training to entitle her to sit as a judge in the county court. ) One of the transformation programme’s central goals is the creation of ‘one judiciary’ whereby judges can be deployed to different areas of work.. The author describes the basic training she received and the shadowing she undertook before she started sitting as a District Judge on civil matters. Her overall impression was that the essential features of the judicial role were the same whether in the ET or in the county court.

She felt that her experience in the ET gave her more confidence in handling litigants in person, who appear more often in the tribunal, than some of her civil judicial colleagues. At the same time, she thought that procedural rules in the county court, which enable judges to give only brief summaries of key facts and grounds for decision, should be brought into the Employment Tribunal rules – ET decisions are currently notoriously and unnecessarily long in her view.

Sian Davies, another ET judge based in Wales, described a pioneering initiative to assist litigants in person. The aim was to find a way for the ET itself to be able to signpost litigants in person to sources of assistance that might help them frame and argue their cases. The obvious challenge is that the ET must not appear to be taking sides. But with the reduction in the availability of legal aid, the tribunal argued that new ways of trying to assist should be developed. One outcome has been the creation of an ET Litigants in Person Scheme, in which volunteers – acting pro bono – offer advice and assistance to parties before the tribunal. These are based in the London Central ET and Cardiff.

Meleri Tudur writes about the use of registrars and now tribunal case workers to undertake some of the more routine paperwork that historically had been undertaken by the judiciary. In some cases this had led to a significant reduction in the amount of time taken by judges on what is known as ‘box work’.

To me, these are all examples of initiatives designed to make the existing courts and tribunals service more responsive to the needs of users. Tribunals Journal should be essential reading, not just for the tribunal judiciary, but for those involved in the reform of the justice system.

The Winter 2017 number of Tribunals Journal can be found at https://www.judiciary.gov.uk/wp-content/uploads/2013/07/tribunals-journal-winter-2017.pdf

 

 

 

 

 

 

Money claims on line

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For many years it has been possible to start a small money claim by completing forms on-line and submitting them to the court.

In April 2018, following a pilot launched in July 2017, a new on-line process for making a money claim with a value of up to £10,000 (the current small claims limit)  has been launched, designed to be easier to use by potential claimants. Rather than having to fill in and post a paper form, or use the original on-line system which dated from 2002, the new pilot allows people to issue their County Court claim more easily, settle the dispute online and also recommends mediation services  (which can save time, stress, and money).

According to the Press Release announcing this decision “Early evidence [from the original pilot] suggests that the online system has improved access to justice as engagement from defendants has improved.”

At present, it seems that the only way that one can see how the new process works in practice is to go on-line and submit the details of a potential claim – this includes setting up a special account. What I think is urgently required is one of those ‘how to’ videos that are available on You Tube. (There are videos with this or similar titles but they don’t specifically refer to the new MoJ scheme.)

The press release announcing the development is at https://www.gov.uk/government/news/quicker-way-to-resolve-claim-disputes-launched-online.

If you would like to explore the money claim website more fully, it can be found at https://www.gov.uk/make-money-claim

 

Reform of the Parole Board

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The Warboys affair, in which the Parole Board recommended the release from jail of a London taxi driver who had been convicted of a number of rapes and who was suspected of involvement in other offences, caused public outcry in January 2018. It lead to the resignation of the Chair of the Parole Board, Prof Nick Hardwick. And the Secretary of State for Justice, David Gauke, was clearly anxious that there should be changes to the ways in which the Parole Board worked (somewhat disingenuously, as the Parole Board itself had  for sometime been arguing for change).

A review of the Parole Board was announced in January 2018 (see this blog for 24 January 2018). The review was asked to look at the following issues:

  1. the law, policy, guidance and practice relating to challenges to Parole Board decision-making
  2. the transparency of Parole Board decision-making
  3. victim involvement in Parole Board hearings
  4. arrangements for communicating with victims

The result of this review was published on April 28 2018. It can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/703534/review-of-the-law_policy-and-procedure-relating-to-parole-board-decisions.pdf

The Government has made a number of important announcements which will affect the ways in which the Parole Board undertakes its work going forward.

In particular, Rule 25 of the Parole Board Rules – which currently prohibits publication of details of parole board decisions – will be amended in favour of much greater transparency.

In addition, the Government has announced that it will make immediate changes to how it communicates with victims, as well as looking at how more victims can be offered the Victim Contact Scheme (VCS).

A more fundamental change proposed is that there should be created, within the Parole Board itself, a mechanism for the reconsideration of decisions taken by the Board, that would remove the necessity of parties having to launch expensive proceedings in the Courts for judicial review. The precise ways in which the reconsideration process should work have not  yet been finalised, but  a Consultation Paper setting out various options and suggestions has been published with views sought by the end of July 2018. It is anticipated that reconsiderations would in general be chaired by judges who are members of the Parole Board.

See https://consult.justice.gov.uk/digital-communications/reconsideration-of-parole-board-decisions/

There has also been published the terms of reference for a full review of the Parole Board Rules, with the specific object of trying to improve the transparency of the work of the Board.

See https://www.gov.uk/government/publications/review-of-the-parole-board-rules

The speed with which these first decisions have been taken is an indication of the political pressure to respond to the outcry created by the Warboys case. Further details, in particular on the proposed reconsideration process, will be considered here in due course. It is worth observing that the Secretary of State’s strategy can be delivered entirely through changes to regulations, which will not require parliamentary time.

 

 

 

Written by lwtmp

April 30, 2018 at 4:25 pm

Posted in Chapter 5

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RESOLVING CONSUMER DISPUTES: Alternative Dispute Resolution and the Court System

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Lawyers might think that a government research report with the above heading would/should have been published by the Ministry of Justice (MoJ). Would this not be a central theme in the Transforming the Justice System programme that is currently underway?

It may therefore come as a surprise that this is the title of a report commissioned and published by the Department for Business, Energy and Industrial Strategy (BEIS). In it consultants have looked at a number of contexts in which consumers may seek to obtain redress for problems they have with traders or other service providers.

The report seems to have been written with no account taken of the not inconsiderable body of work already done on the use of ADR in England and Wales (e.g. the reports by Professor Dame Hazel Genn). There is no reference to the court transformation programme. There is one reference to the Civil Justice Council (though not to its relatively recent paper on ADR). It is as though BEIS and MoJ are living in separate if not parallel universes, with no communication between them.

This may of course be deliberate. It is possible to imagine that BEIS – who have responsibility for promoting business and protecting consumers – have become fed up with the slow place of change in the use of ADR in the court system and want to charge ahead with their own initiatives.

What is interesting, however, is to see just how pervasive the use of ADR mechanisms are in the UK. The report sets out a list of 95 bodies who offer differing forms of ADR for the resolution of complaints and disputes. And there is an intriguing footnote citing more recent research, undertaken by Citizen’s Advice, which reveals that the total number of such scheme is approaching 150.

From the data they collected, the researchers suggest that ADR is quicker and cheaper than the courts; that those who use either the courts or ADR are in general, older, better off and better educated than consumers taken as a whole; and that these groups are in general better informed about the existence of different forms of ADR.

It is not the function of this report to argue that either use of ADR or use of the courts is to be the preferred method for resolving consumer disputes. But the researchers do, at the end, list a number of ‘indicators’ that could be used for ongoing monitoring of the use of ADR. This suggests to me that BEIS might hope to find over the years greater consumer awareness of and use of ADR schemes for the resolution of consumer disputes.

What the policy outcomes of this study will be are hard to discern from the present document. One may guess that, for modest-value disputes, use of different forms of ADR will steadily grow. What is surprising is the apparent lack of contact with others working on the reform of civil justice.

The report can be found at https://www.gov.uk/government/publications/resolving-consumer-disputes-alternative-dispute-resolution-and-the-court-system

(I am grateful to Walter Merricks, CBE, for drawing the existence of this report to my attention.)

 

 

 

 

 

 

The law-making process: consultation over-load?

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In Chapter 3 of the book, I suggest that the legislative process passes through a number of stages:

  • ideas set out in the party election manifesto of the winning political party;
  • (sometimes) publication of a Green paper – setting out ideas for law reform;
  • (more frequently) publication of a White paper – setting out firmer proposals for changing the law
  • publication of a Bill – putting the proposed changes into draft legislative form.

Of course, real life is not as clear-cut as that.

I was struck, however, by an article that recently appeared in The Times (30 March 2018) under the heading “Hundreds of government pledges the Tories have quietly forgotten”. Investigators from the newspaper stated that, since 2015, 1,661 consultations that have been launched by the present government. In most cases, there is little sign that the results of the consultations are either being analysed or acted upon. And given that consultations cost, on average, £40,000, this represents a waste of cash resources as well.

The authors state “Whitehall guidelines say there should be an official response within three months outlining steps for new policy or legislation. However, the government website shows that almost a third of the Tories’ consultations have had no such response and 202 out of 898 that started before the end of 2016 remain incomplete.”

Thus what might seem to be an important source of ideas for legislative change turns out to be somewhat underwhelming. Sorting out legislative priorities is a challenge for any government, but it is important that, when the public is asked for its views on possible reform ideas, it should feel that its views are taken into account, even if not acted upon in the way respondents might hope for. If the public starts to think that ‘consultation’ – which might imply some action – is being used, instead, as an excuse for inaction, this does not seem to me to be a sensible use of the consultation process – which should encourage engagement in the policy/law-making process.

The Times article is at https://www.thetimes.co.uk/article/hundreds-of-government-pledges-the-tories-have-quietly-forgotten-6kwt879bg 

(This may be behind a paywall).

 

 

 

Written by lwtmp

April 23, 2018 at 3:40 pm

Slimming down the size of Parliament: the turn of the House of Lords

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I have commented before on current plans to reduce the size of the House of Commons from 650 to 600 MPs. The process, taking place under the Parliamentary Voting System and Constituencies Act 2011, has already been subject to delay. And, there is much speculation that the revised date for implementation (sometime in 2018) will either be further delayed or even abandoned. (See this blog October 30 2017.)

A somewhat similar exercise has been launched in relation to the House of Lords. As the House of Lords is not an elected body, a reduction in size cannot be achieved simply by reducing the number of Parliamentary Constituencies. Instead, other steps have to be adopted if its numbers are to reduce.

In 2017, Lord Burns was asked by the Lord Speaker to chair a Committee on how this might be achieved. The Burns report, which was published in October 2017, sets out a programme for size reduction over the next ten years. Among the recommendations are that membership of the House of Lords should be limited to 15 years (currently appointments are for life); and that until the target number of reached only 1 new member should be appointed for every two members whose appointments end.

To date the report has been debated in the House of Lords (December 2017) and is now being examined by the Public Administration and Constitutional Affairs Committee of the House of Commons. Final decisions have not yet been taken.

Lord Burn’s Report can be read at https://www.parliament.uk/size-of-house-committee. 

The Lords’ Debate is at https://www.parliament.uk/business/news/2017/december/lords-debates-size-of-the-house-report/.

The Select Committee on Public Administration and Constitutional affairs is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/inquiries/parliament-2017/lord-speakers-committee-size-house-17-19/

Written by lwtmp

April 4, 2018 at 3:43 pm

Posted in Chapter 3

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