Martin Partington: Spotlight on the Justice System

On Tuesday 16 November the Faculty of Laws at University College London launched a new Judicial Institute. The opening event  was a panel discussion on ‘The Future of Judging’. At a time when the judiciary is at an important crossroads, this event explored the changing roles of judges and the challenges facing the modern judiciary as a result of developments in politics and society, science and technology, law, litigation and globalisation.

This is an extremely important research initiative that should throw considerable light on a part of the legal system that has not hitherto been the subject of a great deal of empirical research.

At present, an individual pays a fee when they apply for leave to enter or remain in the United Kingdom. There is currently no fee for any appeal against a decision to refuse leave. The Coalition Government is  seeking views on proposals to introduce a fee for the majority of individuals who wish to bring an appeal against:

• a decision to refuse them leave to enter the UK;
• leave to remain in the UK; or
• permission to vary their current leave to remain in the UK.

There is no intention that an individual who is bringing an appeal against a decision refusing to grant them asylum and who is in receipt of asylum support or who qualifies for Legal Aid will  pay a fee.

The Consultation Paper summarises the proposals as follows:
The Lord Chancellor has the power, under section 42(1)(c) of the Tribunals, Courts and Enforcement Act 2007, to introduce fees in both the First-tier Tribunal Immigration and Asylum Chamber (FTTIAC) and Upper Tribunal Immigration and Asylum Chamber (UTIAC). The underlying policy of recovering costs through introducing fees is therefore not in question in this consultation. However, the Government believes that there is a sound policy reason to introduce fee charges at the initial level, and that with the proposed exclusions, this will ensure that access to justice is properly available.

In more detail: there are proposals to charge a higher fee for oral hearings (when the relevant parties attend a hearing with a judge) than paper hearings (when a judge considers the merits of an appeal based on papers submitted to him or her) as the costs of an oral hearing are more than those of a paper hearing;

Appeals from individuals who are facing action initiated by the State (e.g. deportation; revocation of indefinite leave to remain; or deprivation of citizenship) will not have a fee charged;

Overseas appellants should generally be liable to pay a fee;

There should be a special power, to be used at the discretion of the Lord Chancellor, to waive fees in exceptional or compelling circumstances;

Payment of the fee can be made by someone other than the person bringing the appeal;

There sh0uld be no refund of the fee if an appeal is successful, withdrawn, invalid or out of time (as the Tribunal incurs costs in processing the appeal irrespective of the outcome);

Charging a two stage fee for some appeals to the Upper Tribunal;

Moving to a system where all appeals will be lodged at the Tribunal in the UK, with payment made shortly after the time the appeal is lodged;

All individuals bringing an appeal (unless exempt), including dependents and children, must pay a fee.

It is not suggested that the fee should cover all the cost of the tribunal – but it is likely to be set at a percentage of the cost of the average case, perhaps 25%. The Consultation period on these proposals runs until 21  Jan 2011

The significance of these proposals – which have not been widely publicised – should not be underestimated. It seems quite possible that consideration will be given to charging fees in other tribunal contexts – Employment Tribunals would seem a possible candidate.

The consultation may be found at

http://www.justice.gov.uk/consultations/docs/tribs-fees-consultation-paper-cp10-10a.pdf

In addition to the Consultation Paper on changes to legal aid, the Coalition Government has also published a consultation on changes to the system of costs in civil litigation, which take forward some of the proposals made by Lord Justice Jackson in his review of Civil Litigation costs published in January 2010.

Again the proposals in the Consultation are quite hard to summarise. The following is adapted from the MoJ Press release:

The central objective is “to reduce the spiralling costs payable by people who have been sued in ‘no win no fee’ cases. Defendants are currently liable for substantial additional costs while the claimant has no interest in restraining legal costs when deciding to bring a case. The consultation proposes that the claimant should have a financial interest in controlling costs incurred on their behalf, which would also lead to lawyers having to keep costs down in order to compete for business.”

In order to achieve this objective:

• “The key proposal is to abolish recoverability of success fees and associated costs in no win no fee conditional fee agreements. Under the current regime, defendants must pay these additional costs (which can be substantial) if they lose. The proposal would mean that claimants (emphasis added) have to pay their lawyer’s success fee and will therefore take an interest in controlling the costs being incurred on their behalf.

• “It is also proposed to allow damages-based agreements (also known as contingency fees) in litigation before the courts. These are another form of no win no fee agreement, under which lawyers can take a proportion of the claimants’ damages in fees.  This would increase the funding options available to claimants.

• “The consultation also seeks views on some of Lord Justice Jackson’s other recommendations, which are designed to balance the impact of these major changes, in particular to assist claimants. These recommendations include a 10% increase in general damages, and introducing a mechanism to protect the vast majority of personal injury claimants from paying a winning defendant’s costs (through qualified one way costs shifting).

• “Other proposals would further encourage parties to make and accept reasonable offers, as well as introducing a new test to ensure that overall costs are proportionate.  It is also proposed to increase the costs which can be recovered by people who win their cases without representation by lawyers.”

As with the Consultation Paper on legal aid, these proposals will be subject to a great deal of scrutiny, particularly by the legal profession. Their arguments may, as with legal aid reform, lead to changes in Government thinking. However, there is a good deal of consensus that the costs of civil litigation do need reform.

One of the issues not mentioned directly in the Press Release is the extent to which there should be greater promotion of ‘before the event’ insurance to cover potential costs in legal cases. Reductions in publicly funded legal aid may to an extent be replaced by increases in private funding. The problem with this outcome is that the very poorest cannot afford such insurance.

The Consultation Paper is at http://www.justice.gov.uk/consultations/jackson-review-151110.htm

The consultation is open until 14 February 2011.

At last some detailed policy proposals which will directly impact on the English Legal system are starting to emerge from the Coalition Government. The first, considered here, is a consultation paper on the reform of legal aid. This is accompanied by another consultation paper on costs in civil cases.

The legal aid consultation is actually quite dense and difficult to summarise. The following has been adapted from the MoJ Press Release. It should be noted that, because of the need for legislation to make many of the changes, they are unlikely to come into effect before April 2012. Further, policy on legal aid always attracts detailed attention from lobby groups – in particular the lawyers and the advice sector. It is likely that there will be changes of detail before the final package is introduced. The MoJ estimates savings of around £350m if the changes were introduced without modification. The main changes proposed are:

• Criminal Legal Aid. Retaining legal aid for those criminal cases where it is currently available, in order to ensure fair trials for those accused of more serious criminal offences can access the representation required to provide a fair trial.

• But: Changes will be made to the way that lawyers are paid in criminal cases in order to promote an efficient system of justice and to ensure that the taxpayer is receiving the best possible value for money. The intention is to move towards a competitive market to replace the current system of administratively set fee rates.  In the meantime, there is a series of proposals designed to promote swift and efficient justice as well as to achieve savings.  These include proposals to pay the same fee in respect of a guilty plea in the Crown Court regardless of the stage at which the plea is entered.  In Crown Court cases that could realistically have been dealt with in the magistrates’ courts, it is proposed to pay a single fixed fee for a guilty plea based on fee rates in the magistrates’ court.  This complements other reforms to the justice system designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and the justice system significant but avoidable costs; and

• To contain the growth in costs of the most expensive (Very High Cost Criminal Cases – VHCCCs) we propose to bring the arrangements for solicitors in VHCCCs into line with those the last Government introduced for advocates. This will mean that more of these cases will be paid within a graduated fee scheme where costs are more easily controlled.

• Civil Legal Aid. Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.  For example, legal aid will be retained for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases.  It will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage.  It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.

• But: Clear choices are proposed in order to introduce a more targeted scheme which directs limited resources to serious issues in civil and family cases which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.
• Thus, some types of cases will no longer routinely qualify for legal aid funding.
  • This  include private family law cases, for example, divorce and child contact, where long-drawn out and acrimonious cases going through the courts can often have a negative impact on the well-being of any children and not necessarily achieve the most effective result.  Funding for cases where domestic violence is involved will, however, continue to receive funding.  And funding will also continue to be provided for mediation as a better alternative to family disputes going to court in most cases.
  • Other civil cases which will no longer routinely qualify for legal aid funding include clinical negligence, where in many cases alternative sources of funding are available, such as “no win no fee” arrangements (Conditional Fee Agreements).
  • Other issues proposed for removal from the scope of the legal aid scheme include debt, education, employment, housing, immigration and welfare benefits (except where there is a risk to anyone’s safety or liberty or a risk of homelessness), where in many cases the issues at stake are not necessarily of a legal nature but require other forms of expert advice to resolve.

• Legal aid funding may still exceptionally be provided for individual cases through a new funding scheme for excluded cases, generally only where it is necessary to meet our domestic and international legal obligations, for example, in a particularly complex clinical negligence case involving a disabled claimant who cannot represent themselves where access to the court could not otherwise be secured.

• In addition, changes will be made to means testing for non-criminal legal aid.  These seek to ensure that those who, on the basis of their disposable capital or income, can pay or contribute towards the costs of their case should be asked to do so.  The proposals include ensuring that all civil legal aid applicants undergo an assessment of their available capital, including those on benefits.  Greater account will also be taken in future of equity in people’s homes when assessing their capital means.  A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees.

• In order to strike a better balance between using tax payers money efficiently, and ensuring that people can access legal aided services where necessary, fees paid in civil and family cases will be reduced by 10% across the board.  It is also proposed to extend lower legal aid ‘risk rates’ in civil cases where costs are likely to be paid by the opponent, pending the introduction of competition once any proposed changes to the scope of civil and family legal aid have bedded in.   Similar levels of reductions are envisaged in experts’ fees to exert greater control over costs.

• Legal advice: Telephone services will be extended to help people find the easiest and most effective ways to resolve problems.

• The paper also consults on suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements.  These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients’ money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made.
• Views are also sought on how to make the administration of legal aid more efficient and less bureaucratic for solicitors and barristers doing legal aid work.

So – the proposals combine suggestions for taking cases out of the legal aid altogether, getting clients to pay more, and reducing the money lawyers receive.

It is worth noting that the effect of the proposals relating to legal aid in family cases appear rather to preempt the conclusions that the current inquiry into the family justice system might come up with when in reports in 2011.

The proposals for devising supplementary sources of funds for legal aid could result in some further significant changes. What is not clear from the paper is the extent to which new models for the delivery of legal aid, which have been promoted by the Legal Services Commission, will be sustained.

The consultation paper is at http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

The consultation runs until 14 February 2011

The main review of public bodies (see ‘Bonfire of the Quangos’) left open the question whether the judicial appointments system put in place by the former Labour Government would be retained. The Lord Chancellor announced on 10 November 2010 that it would be kept, though it would be expected to make savings. Further proposals will be announced in early 2011 on how the whole process of judicial appointment may be sharpened up.

Slowly the shape of the reforms to the justice system that will be introduced over the life of the Coalition Government are beginning to emerge. On 8 November, the Ministry of Justice published its first business plan. The principles it contains are:

“1. Introduce a rehabilitation revolution by  creating a system introducing greater involvement of the private and voluntary sectors in the rehabilitation of offenders, including use of payment by results, to cut reoffending

2. Reform sentencing and penalties to ensure that the justice system reduces reoffending by introducing more effective sentencing policies and considering the use of restorative justice for adult and youth crimes

3. Reform courts, tribunals and legal aid, and work with others to reform delivery of criminal justice. This includes reforming the legal aid system to make it work more efficiently, while ensuring that government provides necessary support for those who need it most and for those cases that require it. Develop court reforms to improve the resolution of disputes, maximise efficiency and improve services and work with others to make delivery of criminal justice more effective and efficient

4. Assure better law by making law-making  transparent and accountable, safeguarding civil liberties and enabling citizens to receive the proper protection of the law

5. Reform how we deliver our services by reassessing the Department’s ways of working to develop more efficient shared services, matching provision ever more closely to demand, reducing duplication and streamlining functions wherever possible.

The Department will no longer  provide rehabilitation services directly without testing where voluntary or private sectors can provide it more effectively and efficiently nor run underutilised and inefficient court buildings.”

There is more detail in the accompanying document (see link below). What is immediately striking is, first, that the timetable for many of these important developments is already slipping – a number of tasks due for completion by the end of October are still awaited.

Secondly, the programme is very aspirational. Re-offending will not fall just because government wants to see it fall. There must be doubts about whether the investment in resources to prevent re-offending will be available.

Third, cuts in legal aid will be a real challenge if those who need help are to get it.

Fourth, increased use of ADR is unlikely without compulsion, something the ADR community has resisted till now.

However, as with the targets set by the previous Government, there is a statement of outcomes which can be reviewed as time passes. There is certainly a very challenging programme of work implied in the plan which – if all implemented – will reflect great determination by both Ministers and officials.  One of the biggest challenges will be to ensure that cross government issues are properly and efficiently addressed.

I will keep you up-to-date!

The details are available at

http://www.justice.gov.uk/business-plan-2011-15.htm

Although it is for the chop, the Administrative Justice and Tribunals Council is not going quietly. It has just produced a report setting out seven principle of administrative justice that all those delivering services to the public should bear in mind.

The Council says that a good administrative justice system should:

• make users and their needs central, treating them with fairness and respect at all times;

• enable people to challenge decisions and seek redress using procedures that are independent, open and appropriate for the matter involved;

• keep people fully informed and empower them to resolve their problems as quickly and comprehensively as possible;

• lead to well-reasoned, lawful and timely outcomes;

• be coherent and consistent;

• work proportionately and efficiently;

• adopt the highest standards of behaviour, seek to learn from experience and continuously improve.

While these may seem in many ways obvious, it is surprising how often these basic messages are forgotten. Their report also contains a self-assessment toolkit, which administrators can use as a template against which they can measure their organisation. This is the sort of valuable work that will be lost once the Council finally disappears.

For more detail, see:
http://www.ajtc.gov.uk/docs/principles_web.pdf

Louise Casey, the Government’s Commissioner for Victims, has just delivered a controversial lecture on changes she thinks are needed in the criminal justice system. She makes two proposals:

• removing the right to trial by jury for what she calls petty crimes; and

• stopping ‘cracked trials’ which waste a lot of public money.

As I discuss in chapter 5 of the book, the first proposal is not new; but it always runs up against the ‘thin end of the wedge’ argument – that if you start to take away the right to jury trial, this will be the start of a process that will abolish jury trials. What is interesting about Casey’s intervention is that she wants money save to be diverted to better victim support.

The second proposal – trying to stop cracked trials – seems to me to be quite hard to achieve in practice. Her proposal that lawyers should receive no more than a fixed fee, whenever a guilty plea is entered, seems to me likely to encourage more people to continue to plead not guilty and therefore ultimately add to the cost of criminal justice.

However the Director of Public Prosecutions has also recently fingered cracked trials as an issue that needs addressing because of the waste of resources cracked trials involve.

It may be that between them, the Commissioner and the DPP will discover a workable way to cut down cracked trials and make sensible savings.

For further info, including a link to a youtube version of the Commissioner’s speech, see:
http://www.justice.gov.uk/about/victims-commissioner-news.htm