Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

End of the 2019-2021 Parliamentary Session: legislative and other outcomes

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It feels as though the 2019-2021 Parliamentary session, which started immediately after the election of the Boris Johnson Government and has just come to an end has gone on for ever. The dramas of Brexit were anticipated; those of the Covid-19 pandemic were certainly not. This note looks at some of the key outcomes from this session, in particular those that impact on my book, Introduction to the English Legal System, the 15th edition of which will be published soon.

As I have written before, despite all the attention and time that needed to be spent on dealing with the pandemic, four important pieces of legislation managed to get through the Parliamentary process.

The Divorce, Dissolution and Separation Act 2020 and the Sentencing Act passed in 2020. Both have been considered in these notes and are included in the new edition of the Book.

Two other important pieces of legislation completed their parliamentary journey in the dying days of the 2019-2021 session.

First is the Domestic Abuse Act 2021 which should have a major impact on how domestic abuse is dealt with by the police, social authorities and the courts. I have written about this legislation before (see 15 March 2019, 21 May 2020, and 23 July 2020). A Press Release summarizing the key features of the new Act – which has taken a long time to reach the statute book – is at https://www.gov.uk/government/news/landmark-domestic-abuse-bill-receives-royalassent .

The other Act which should be noted here is the Counter-Terrorism and Sentencing Act 2021, about which I have also written before (on 22 July 2020). This is designed to strengthen provisions relating to the detention and monitoring of those convicted of terrorist offences. See the press release at https://www.gov.uk/government/news/longer-jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent for a brief overview of this Act.

This Act needs to be kept distinct from the quite separate Police, Crime, Sentencing and Courts Bill. This was not introduced into Parliament until March 2021. It has already attracted considerable public attention, with demonstrations against the Bill being held in many cities throughout the country.

The Bill picks up proposals in the Smarter Approach to Sentencing White Paper, about which I wrote here on 9 October 2020. But it also reflects earlier Conservative Party manifesto pledges. An extremely helpful background note, setting out both the origins of the Bill and it principal features can be found in the House of Commons Library Research Briefing at https://commonslibrary.parliament.uk/research-briefings/cbp-9158/ which was published in March 2021.

Media headlines are focused on issues relating to powers to limit the right to protest peacefully, but there is a great deal more in this wide-ranging Bill. This Bill will be brought back to Parliament once the new 2021-2022 session gets under way.

Also worth mentioning in this context is the Parliamentary Constituencies Act 2020. This provides for major changes to the boundaries of parliamentary constituencies, to try to ensure that there is approximately the same number of voters in each constituency. This is an idea that has been around for some time – originally linked with proposals to reduce the number of MPs in the House of Commons. This aspect of the changes has been abandoned. The work of redrawing the boundaries will be undertaken by the Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland. Final reports are due by 1 July 2023. See further https://www.gov.uk/government/news/new-law-passed-will-make-voting-in-uk-general-election-fairer

What the legislative landscape for the next 12 months will look like will become clearer after the Queen’s Speech, which will be delivered on 11 May 2021. This will be the subject of a separate note.

Independent Human Rights Act Review: an update

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The review of the Human Rights Act, chaired by Sir Peter Gross, has completed the first stage of its work, namely the receipt of written evidence, addressing the issues raised for consultation by the review team. Over 150 papers were received in total/

The submissions have recently been made publicly available.

The review is in the process of holding a number of public roadshows – to be hosted by six different law schools around the country. These are scheduled to take place during May 2021.

For links to the submissions and information about the roadshows go to https://www.gov.uk/guidance/independent-human-rights-act-review

Written by lwtmp

April 27, 2021 at 4:08 pm

Criminal Injuries Compensation scheme: updated guidance

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Government guidance on the Criminal Injuries Compensation scheme was updated in April 2021.

The guidance in available at https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide

Written by lwtmp

April 27, 2021 at 3:53 pm

Whiplash reform programme: implementation

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Way back in March 2019 I noted the enactment of the Civil Liability Act 2018. One of its principal objectives was to introduce a new way of dealing with claims for ‘whiplash injuries’ suffered when a car is hit from behind, causing those in the front car to suffer whiplash. It had been planned that the new scheme would come into operation in April 2020. The Government has now announced that it will commence on 31 May 2021.

The Whiplash Reform Programme provides, among other things that:

  • A fixed tariff of compensation will determine the personal injury damages claimants will receive for whiplash injuries. Until now, most whiplash claims are determined by negotiation rather than by a ruling from a judge. The tariff – set by the Lord Chancellor – will in future decide the issue. The levels of compensation will be reviewed by officials every three years.
  • There will be a ban on settling whiplash claims without medical evidence. It was argued that, in the past, insurance companies paid out on small claims which had been made without any supporting medical evidence because it was not financially worth their while to resist them. The effect of paying out on unmeritorious claims was to increase the costs of motor insurance, to the detriment of motorists who did not make unwarranted claims.
  • A new online official Injury Claim Service will be established which will enable claimants to source medical reports to ensure claims are supported by medical evidence before settlement.
  • The Small Claims Track (SCT) limit for Road Traffic Accident related Personal Injury claims will be raised from £1,000 to £5,000. This means that the majority of such claims (which are for sums under £5,000) will no longer be subject to fast track rules, where the recovery of legal costs operates on the ‘loser pays’ principle but will be allocated to the SCT, where parties are responsible for paying their own legal costs.

It is hoped that the introduction of the Official Injury Claim Service which has been designed to provide claimants with a user-friendly digital system, supported by guidance, will enable all claimants, particularly those without legal representation, to make and settle their own claim pre-court. It is also hoped that the new system will stop unmeritorious claims from being made.

Since these changes are expected to result in insurance companies being able to reduce their overhead expenditure on motor insurance, insurers are required to provide to demonstrate that they have passed any savings on to customers.

Further information on the new scheme is at https://www.gov.uk/government/publications/whiplash-reform-programme-information-and-faq

Written by lwtmp

April 27, 2021 at 3:48 pm

Misperceptions of ‘deregulation’

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Another excellent thought piece from Stephen Mayson, highlighting the challenge of ensuring that professional regulators can drive effective change and innovation in the delivery of legal services.

StephenMayson

Last month, Boston Consulting Group published a report that claimed to assess the effects of deregulating legal services in England & Wales, as driven by the Legal Services Act 2007. The analysis and conclusions are, to put it at its best, disappointing. I am grateful to have been spared the need to offer a detailed review, thanks to this informed critique of the report by Alison Hook.

In the interests of full disclosure, I should note that the report’s authors based some of their work on my independent review (Legal Services Reform: Regulation Beyond the Echo Chambers, published last year). However, having done so, their report could encourage others to take my principal conclusion – that further reform is needed – and, contrary to my intention, use it to amplify the echo within the chambers of my title.

These, therefore, are my summary observations:

First, I have…

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Written by lwtmp

April 13, 2021 at 2:51 pm

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Mandatory retirement age for judges

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For a number of years, concern has grown about the ability of the courts’ system to recruit judges, particular to the most senior positions in the High Court. One obvious idea, which gained considerable traction in 2020, was that the mandatory retirement age (MRA) for judges, set some years ago at 70, should be increased.

In July 2020, the Government launched a consultation on whether this would be a good idea, and if so what any new age limit should be. The results of this consultation are now in and were published in March 2021.

The Government has now decided that it will increase the MRA to 75, thereby putting the MRA back to the level it was some 20 years ago when the present MRA was introduced.

It might have been thought that this change could be made relatively straightforwardly, but in fact statutory amendment is required. In the familiar phrase used on these occasions, this will happen ‘when parliamentary time allows’.

This is often seen as pushing the required change into some indeterminate future date. My hunch is that, in this context, there is a degree of urgency. I doubt whether there will be a separate Act of Parliament on the point. But it would not surprise me if a clause was inserted in an appropriate Bill going through Parliament in the near future.

The consultation and the Government’s response are available at https://www.gov.uk/government/consultations/consultation-on-judicial-mandatory-retirement-age

Written by lwtmp

April 12, 2021 at 12:46 pm

What do judges think about their job?

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The UK Judicial Attitude Survey is a longitudinal survey conducted by Prof Cheryl Thomas of the University College London Judicial Institute. It covers all serving salaried judges in England & Wales, Scotland and Northern Ireland. It assesses judges’ views and experiences of their working lives over time. The results of the 3rd JAS were published in February 2021; earlier surveys were published in 2016 and 2014. With close to 100% participation over 6 years, this report provides a reliable assessment of judicial attitudes to their working lives and how they may have changed over this time period. The following note, which I have adapted from the Executive Summary, sets out the headline findings.

1 General feelings

Virtually all judges feel they provide an important service to society and have a strong personal attachment to being a member of the judiciary. They have a deep commitment to their job.

While judges feel most valued by their judicial colleagues at court, court staff, the legal profession and parties in cases, only two thirds feel valued by the public. Very few judges feel valued by the Government (9%) or the media (12%), and no judges feel greatly valued by the Government or media.

2 Working conditions

A majority of judges said that working conditions were worse than they were two years ago,

The courts judiciary feels working conditions have deteriorated more in the last two years than do judges in UK tribunals.

A majority of judges rated the following as Good or Excellent: security at court, quality of administrative support and physical quality of judges’ personal work space. One working condition rated Poor by a majority of judges was the morale of court and tribunal staff.

Over a third of judges continue to have concerns about their safety out of court.

Almost half of all judges said they would like more guidance on how to deal with internet and social media coverage of their work as a judge.

3. Salary and pensions

Most judges were paid more before they became a judge than they are paid in post. Two-thirds of all salaried judges feel that their pay and pension entitlement combined does not adequately reflect the work they have done and will do before retirement.

4. IT Resources and the New Digital Programme

A majority of judges said that the standard of IT equipment provided to them personally to use in 2020 had improved from 2014 and 2016, and that internet access and IT support in 2020 had also both improved from 2014 and 2016. But they felt that the standard of IT equipment used in courts and tribunals in 2020 had continued to decline since 2014 and 2016.

By 2020 virtually all salaried judges were on e-Judiciary (the internal web-based communications system), and most judges rated it as either Excellent to Good or Adequate.

By 2020 wifi was available in nearly all court/hearing rooms. Most judges rated its quality as Excellent/Good or Adequate.

5. Working during the Covid-19 emergency

During May-June 2020, a majority of judges  said that the judiciary was managing change well during the Covid-19 emergency. The extent to which judges were working in their court or tribunal varied substantially by judicial post during the first lockdown in May-June 2020.

6 Future planning

A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years. In 2020, a new factor, “lack of respect for the judiciary by government”, was more significant in prompting judges to leave early than any other factor identified in 2016. There was also a substantial increase from 2016 in judges who said that stressful working conditions, increases in workload and further demands for out of hours work would make them more likely to leave the judiciary early.

A majority of judges said the same 3 factors would make them more likely to remain in the judiciary: higher remuneration, better administrative support and restoration of previous pension entitlements.

7. Recruitment

In 2020, almost two-thirds of all judges said they would encourage suitable people to apply to the judiciary. The main reasons for this were: the chance to contribute to justice being done , the challenge of the work,  public service and intellectual satisfaction

The full report is available at https://www.judiciary.uk/announcements/judicial-attitudes-survey/

Written by lwtmp

April 12, 2021 at 12:25 pm

Responding to Covid-19: the work of tribunals

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All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.

By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.

In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.

The outcome is truly impressive and shows how much can be done. Highly recommended read.

Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.

See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.

The latest edition of Tribunals

Equal Treatment Bench Book – 2021 revision

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The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..

The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals.  It is designed to enable effective communication and suggests steps which should increase participation by all parties.

This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.

There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.

There is new and expanded content on:

  • The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
  • Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
  • Reducing jargon and legalese
  • Assisting a litigant who has difficulty reading or writing
  • Extended guidance in relation to litigants-in-person (ie people representing themselves)
  • New entries in the disability glossary
  • Confidence in the courts of minority ethnic communities
  • Sensitivity if a witness is experiencing menopausal symptoms

Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.

The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/

Written by lwtmp

April 7, 2021 at 11:08 am

Legal services regulation: turning point, or point of no return?

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This is a really challenging analysis of how the legal profession should engage much more effectively with regulatory reform. Prof Mayson fears that if they do not, they have much to lose.

StephenMayson

Earlier this month, I was invited to give the Wickwire Memorial Lecture at the Schulich School of Law at Dalhousie University in Canada. Frederick B. (Ted) Wickwire QC, a graduate of the School, was the President of the Nova Scotia Barristers’ Society. He died in office at the age of 52 in 1991.

Ted Wickwire was noted for his commitment to public service and to uncompromising professionalism. Each year, a lecture is held in his memory, focusing on an aspect of professional ethics.

It was a great honour to deliver this year’s Lecture, albeit with the constraints of virtual presence. The full text of the Lecture is available for download here.

The Lecture presented an opportunity for me to reflect on some of the underlying themes of my independent review of legal services regulation in England & Wales. In particular, I explored the emerging and increasingly uncomfortable tension between…

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Written by lwtmp

March 30, 2021 at 11:25 am

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