Archive for November 2011
Appointments and Diversity: ‘A Judiciary for the 21st Century’
On 21 November, 2011, the Lord Chancellor launched a consultation on changes to the ways in which judicial appointments are made. The consultation deals with four main issues:
1. How to achieve the proper balance between executive, judicial and independent responsibilities in the appointment of judges;
2. How to improve clarity, transparency and openness in the appointment process;
3. How to create a more diverse judiciary that is reflective of society and appointed on merit; and
4. How to deliver speed and quality of service to applicants, the courts and tribunals and value for money to the taxpayer.
In relation to 1, the paper suggests that there should be some redrawing of the responsibilities of Lord Chancellor and Lord Chief Justice, with more decision making power going to the latter.
In relation to 2, there are proposals for opening up more of the most senior judicial positions to open competition.
In relation to 4, detailed changes to the size of the Commission and its procedures are suggested.
As regards the diversity issues, to which the Lord Chancellor seems particularly committed, a number of quite radical changes are suggested. For example, while part-time working is possible for the lower judiciary, this is not currently an option for judges in the High Court and above; the paper asks whether this should change. Another question asks whether the JAC should be able to apply the Equality Act 2010’s positive action provisions when two candidates are essentially indistinguishable.
The consultation ends in February 2012.
The paper is at http://www.justice.gov.uk/downloads/consultations/judicial-appointments-consultation-1911.pdf
Surveillance in the digital age
In 2000, Parliament enacted the Regulation of Investigatory Powers Act. At the time, it was acclaimed by government ministers as Human Rights Act compliant, and was presented as forward-looking legislation. The Protection of Freedoms Bill, currently before Parliament contains provisions to tighten up the use of covert investigatory techniques. And a recent report from JUSTICE makes a strongly argued case for fundamental reform of the regulation of surveillance.
The principal findings in the report are:
• Since RIPA came into force in 2000, there have been:
– more than 20,000 warrants for the interception of phone calls, emails, and Internet use;
– at least 2.7 million requests for communications data, including phone bills and location data;
– more than 4,000 authorisations for intrusive surveillance, eg, planting bugs in someone’s house
or car;
– at least 30,000 authorisations for directed surveillance, eg, following someone’s movements in
public, or watching their house.
• In total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.
• This does not include the number of warrants and authorisations on behalf of MI5, MI6 and GCHQ, which have never been made public.
• Of the decisions we do know about, fewer than 5,000 (about 0.16 per cent) were approved by a judge.
• The main complaints body under RIPA, the Investigatory Powers Tribunal, has dealt with only 1,100 cases in the last decade and upheld only ten complaints.
• Surveillance is a necessary activity in the fight against serious crime. It is a vital part of our national
security. It has saved countless lives and helped convict hundreds of thousands of criminals.
• But unnecessary and excessive surveillance, however, destroys privacy and blights our freedoms.
• RIPA has not only failed to check a great deal of plainly excessive surveillance by public bodies over the last decade but, in many cases, inadvertently encouraged it. Its poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread. It is also badly out of date.
• The conclusion is that RIPA is neither forward-looking nor human rights compliant. Piecemeal amendments are no longer
enough for what is already a piecemeal Act. Root-and-branch reform of the law on surveillance is needed to provide freedom from unreasonable suspicion, and put in place truly effective safeguards against the abuse of what are necessary powers.
• This report sets out a series of recommendations to serve as the basis for a draft Surveillance Reform Bill.
The full report is at http://www.justice.org.uk/resources.php/305/freedom-from-suspicion
Removing the MP Filter
One of the curiosities of the Ombudsman in this country is that members of the public are not permitted to take complaints about government maladministration direct to her. They have to start by going to their Member of Parliament; only if the MP agrees to refer the case will the Ombudsman be able to take it on. (The ‘filter’ does not apply to her health service complaints.)
For many years, it has been argued that the filter is unnecessary and this summer the Ombudsman consulted on whether the time had come to remove the filter. Today, she reports that the overwhelming consensus of opinion is that this time has come.
Following a recent report from the Law Commission, calling for a more general review of public service ombudsmen, it seems as though there might be an opportunity to make the requsite changes to the law. It won’t happen overnight – but would be a sensible reform that would improve access to the Ombudsman.
For access to the Ombudsman report go to http://www.ombudsman.org.uk/about-us/media-centre/press-releases/2011/new-report-from-parliamentary-ombudsman-says-reform-of-the-mp-filter-is-long-overdue
For the Law Commission report see http://www.justice.gov.uk/lawcommission/publications/ombudsmen.htm
What legal services should be regulated?
In the book, in Chapter 9, I draw a distinction between legal services and lawyers’ services. Under the Legal Services Act 2007 there are a certain number of functions which are called ‘reserved legal activities’, which must only be undertaken by professionally qualified lawyers or by people who are members of other groups who are authorised to provide such services. These include the conduct of litigation and probate activities.
During the summer of 2011, the Legal Services Board launched a consultation on whether other legal services provided by people not members of the legal profession should also be regulated.
The Board noted that ‘there are two main types of legal service regulation. Some lawyers are regulated in respect of all their legal work by virtue of their professional membership and accompanying title – the best known of which are solicitors and barristers. Others are authorised by a legal services regulator to undertake one or more of the six specific “reserved legal activities” which brings them within the scope of legal services regulation’.
They also noted that one consequence of this is that ‘there is no specific legal services regulation of people who neither have a protected title nor offer any of the reserved activities. Will-writing is perhaps the best known of the services frequently undertaken by unregulated providers, but there are many others including many forms of general legal advice. In such cases, consumer protection arises only from general consumer law and voluntary schemes of regulation, rather than any other statutory requirements: importantly, consumers have no automatic right of redress from the Legal Ombudsman’.
The reason for this is that regulation of legal services has grown up in a piecemeal fashion. There have been no overarching guiding principles.
The Board sought views on whether and to what extent there needed to be a further raltionalisation of the scope of the regulatory framework for legal services to enhance consumer protection, particular as the arrival of alternative business structures may result in the emergence of rather different forms of legal service delivery.
The Consultation exercise has just closed and no doubt it will be some time before the Board comes to a final view. To read their Consultation Paper go to http://www.legalservicesboard.org.uk/what_we_do/consultations/open/pdf/enhancing_consumer_protection_reducing_restrictions_final_28072011x.pdf
For the comments of the Solicitors Regulatory Authority go to http://www.sra.org.uk/sra/news/press/SRA-calls-for-all-legal-services-to-be-regulated.page
Reporting the law: interview with Joshua Rozenberg
Joshua Rozenberg is one of a very small number of specialist journalists who cover legal issues in a serious and thoughtful way. He has worked in a wide variety of media, including the BBC – he was their legal correspondent for 15 years. He still makes the Law in Action series. He was also legal of the Daily Telegraph for a number of years. He now works freelance; much of his current work is published by The Guardian on-line
In the interview, he describes how he decided to become a journalist rather than a practising lawyer and comments on the challenges of devising ways to enable legal issues to be raised in the mass media.
To see his website with links to his blogs and other material, go to http://www.rozenberg.net/.
For law in action, go to http://www.bbc.co.uk/programmes/b006tgy1
To hear my interview with Joshua Rozenberg go to http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Rozenberg.mp3
Reform of Family Justice: radical proposals
Major proposals for the reform of the family justice system are recommended in a detailed report of the panel chaired by David Norgrove. It was particularly shocked by the current delays in the system. It argues that everyone involved in the family justice system should consider how their own functioning might be improved.
In summary, the review recommends:
Changes to the system
- The creation of a new Family Justice Service to make sure agencies and professionals work together to make positive improvements in the system for children and families.
- More judges who are specialists in family law to hear cases from start to finish to ensure consistency and confidence in the system
- A simplified court structure making it easier for people using the courts to know where to go
- More child focus and better training for professionals to make sure children’s views are heard.
Changes to public law ( which deals with the protection of children and taking them into care) to deliver more quickly for children:
- A six month time limit for all cases, save in exceptional circumstances
- Less reliance on unnecessary expert witnesses and reports
- Refocusing the courts on the core issue of determining whether the child should go into care.
Changes to private law (arrangements about children and money following separation and divorce), to create a simpler service for families who are separating, aimed at helping them and their children focus on reaching a safe, joint agreement, if possible, without going to court:
- A single online and phone help service to make it simpler for people to decide the most appropriate way forward and increase clarity of understanding
- Use of Parenting Agreements and a new ‘child arrangements order’ to bring together arrangements for children’s care after separation, focusing on the child rather than ‘contact’ and ‘residence’
- Increased provision of mediation to prevent cases going to court unnecessarily.
The report also recommended significant investment in IT to improve the efficiency of court processes.
One controversial issue which the review does not pursue was the idea that there should be a legal presumption in favour of ‘shared parenting’. Evidence from countries where this had been introduced suggested that such a legal presumption did not ensure that the best interests of the child – the fundamental legal test in all children’s cases – were always taken into account as fully as they should be.
The Government’s detailed response to the report will be available in due course. There are significant tensions between what is recommended here and the changes proposed to the legal aid scheme which may affect the extent to which the Government will actually adopt the recommendations.
For further information: see http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease031111a.htm
The full report is available at http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-final-report.pdf
Public legal education: new initiatives
One of the consequences of government funding cuts was the elimination of financial support for the Public Legal Education Network – a group that was doing important and innovative work to promote better public understanding of law.
Frankly I was not sure where this initiative had got to. However in the last couple of days I received a newsletter telling me that the network has reconstituted itself as Law for Life: the Foundation for Public Legal Education and that there will be a relaunch of this work in early 2012.
Among other recent activity, they have secured funding for participating in research into adult legal education in Europe; they are about to publish the results of work they have done with Bristol University; and they continue to promote the Street Law programme.
Full details are still on their old website: http://www.plenet.org.uk/
but you can sign up to their newsletter to keep in touch with developments as they unfurl.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 