Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for August 2013

Who is going to run the courts?

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In July 2013, the Ministry of Justice issues an interesting press notice, comprising a letter from the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals. Although written in emollient tone, it raises some interesting questions about how the judicial estate – the buildings in which courts and tribunals sit – is to be managed in future.
The letter does not imply that any changes are imminent. But there is clearly a process going on within the MoJ which could result in big change.
The letter makes clear that “The provision of justice is and will remain a core function of the State. The Lord Chancellor is, and will continue to be, responsible by statute for the provision of an efficient and effective system to support the administration of justice. We are all committed to ensuring that vital constitutional safeguards (including access to justice, the rule of law, the independence of the judiciary, and the preservation of the position of the Lord Chief Justice) are maintained.

“There will be no erosion of the constitutional position of courts and tribunals or the constitutional principles which underpin the independent administration of justice.”

Nonetheless, the letter also states: “Our courts are not always where they need to be and not always used to the full. Our buildings do not always offer modern, high quality facilities. Some are not properly accessible to all users. They should be better equipped to enable the business of the courts and tribunals to be conducted more efficiently. A variety of difficult decisions will be required as to the appropriate level at which fees are set and about how best to deliver access to justice and value for money for the taxpayer.”

The inference I draw from this is that the programme of court closures currently being implemented will not be the end of the story.

The authors of the letter are clear that they want more investment in IT – achieved for criminal courts but not universal. Thus, while rejecting the idea of the court service becoming a profit-making body,: “We have been reflecting on whether it would be possible to ensure adequate investment and where consistent with the administration of justice, options to generate and retain additional income and capital for investment.”

The inference I draw from this is that there is a strong likelihood that one of the options for change will be increased fees to be paid by litigants for using the courts and tribunals service – with consequent implications for access to justice.

They also ask “whether an alternative structure, such as a more independent public interest corporation, would better ensure a sustainable future”.

A wider implication that arises is that if access to courts does become increasingly expensive, there is likely to be greater recourse to dispute resolution procedures that fall outside the court system.

To read the letter, go to: https://www.gov.uk/government/news/letter-to-judges

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Written by lwtmp

August 20, 2013 at 9:53 am

Posted in Chapter 4

Streamlining procedures for personal injury claims

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Since 2010, there has been a special procedure for dealing with claims for personal injuries arising out of Road Traffic accidents, where the amount of damages sought is under £10,000.

From 31 July 2013, the financial limit for the use of the procedure has been lifted to £25,000. At the same time, the procedure has been extended to claims arising from personal injuries at work (Employer’s Liability cases) and from personal injuries suffered by members of the public as the result of a company or its employees failing to take reasonable care (Public Liability cases).

A new electronic portal, the Claims Portal, has been developed to ensure that all such claims are processed speedily, incurring only fixed costs, and in a way that is compliant with the relevant pre-action protocols. The Claims Portal is run by a not-for-profit company, with 8 directors representing both potential claimants (e.g. the Trades Union Congress) and potential compensators (Insurance companies).

Of course, if liability for an accident is not admitted, or agreement cannot be reached about the amount to damages to be paid, the claim will not be finally resolved through this process. It is however anticipated that for straightforward cases, the portal will speed the process and reduce the costs.

The changes have been brought about by amendment to the Civil Procedure Rules.

For a government press release on the changes go to https://www.gov.uk/government/news/action-on-compensation-claims-for-slips-and-trips.

For the Civil Procedure Rules go to http://www.justice.gov.uk/courts/procedure-rules/civil (scroll down to Release 65).

For more information about the Claims Portal go to http://www.claimsportal.org.uk/en/about/about-claims-portal-ltd/

For a useful summary of the changes – written by an insurance company, go to http://www.allianz.co.uk/home/search-results.html?searchQuery=claims+portal and click on MOJ Reforms

This blog up-dates my book at Box 8.3 para 4

Written by lwtmp

August 20, 2013 at 9:25 am

Posted in Chapter 8

The Legal Education and Training Review, 2013: Report

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The report from the Legal Education and Training Review, Setting Standards: The future of legal services education and training regulation in England and Wales, was published in late June 2013. I have been mulling over how I should treat it in this blog for some time. It is long – over 370 pages. It contains 26 recommendations. To be honest it is not an easy read.

For those readers of this blog who those coming new to the study of law – who as you know are my ‘target audience’ – you can rest assured that there are no immediate changes to Legal Education that will be made.

The reason for this is that the Review did not have any remit to direct what changes should be made to the system of legal services education and training (LSET) that exists in England and Wales. It merely sets out its views on factors that should be taken into account by the professional regulatory bodies that established the review in the first place: the Solicitors Regulatory Authority, the Bar Standards Board and ILEX Professional Standards. These bodies will have to decide what they are going to do with the report and this will take some time. Any changes to legal education and training arising from this report will not occur for a number of years.

That said, there are recommendations in the review which will be introduced and which will affect both law students and qualified professionals in the years ahead. I set out here a summary of what I regard as the main recommendations

1. Competence

The review recommends that there should be a more detailed definition of what it means to say that a person has the competence to be a lawyer. To achieve this, there needs to be a robust and systematised range of outcomes and standards, coordinated between the professions, which would demonstrate that initial competence is achieved.

  • Learning outcomes should be prescribed for the knowledge, skills and attributes expected of a competent member of each of the regulated professions.
  • Such guidance should require education and training providers to have appropriate methods in place for setting standards in assessment to ensure that students or trainees have achieved the outcomes prescribed.
  • Learning outcomes for prescribed qualification routes into the regulated professions should be based on occupational analysis of the range of knowledge, skills and attributes required. They should begin with a set of ‘day one’ learning outcomes that must be achieved before trainees can receive authorisation to practise.

Introduction of the idea of ‘day one’ learning outcomes is probably the most innovative aspect of the report. It would enable those who had demonstrated that they had acquired the skills determined to be needed on ‘day one’ of a person starting to practice should be able to achieve the authority to practise from that date. This could mean, for example, the end of 2 year training contracts for solicitors. New solicitors could be authorised to practice once they demonstrated their core competence.

2. Content

As regards the content of courses,

  • LSET schemes should include appropriate learning outcomes in respect of professional ethics, legal research, and the demonstration of a range of written and oral communication skills.
  • The learning outcomes at initial stages of LSET should include reference (as appropriate to the individual practitioner’s role) to an understanding of the relationship between morality and law, the values underpinning the legal system, and the role of lawyers in relation to those values.
  • Advocacy training across the sector should pay greater attention to preparing trainees and practitioners in their role and duties as advocates when appearing against self-represented litigants.
  • Learning outcomes should be developed for post-qualification continuing learning in the specific areas of professional conduct and governance, management skills and equality and diversity (not necessarily as a cyclical obligation).
  • There should be a distinct assessment of legal research, writing and critical thinking skills  in the Qualifying Law Degree and in the Graduate Diploma in Law.

There are also more detailed recommendations about the need for better training in will writing and advocacy (for solicitors) and the use of mediation (for barristers)

3 Supervised practice

The Review regards periods of supervised practice as important. Thus

  • LSET structures which allow different levels or stages (in particular formal education and periods of supervised practice) to take place concurrently should be encouraged where they do not already exist.

I strongly agree with this idea; the understanding of law is enhanced by seeing its application in practice. But the review does not recommend that this be a mandatory feature of LSET.

  • Supervisors of periods of supervised practice should receive suitable support and education/training in the role. This should include initial training and periodic refresher or recertification requirements.

4 Continuing professional development

The review is most unhappy about current arrangements for undertaking CPD. It says, bluntly, that “The majority of CPD schemes in the legal services sector are out-of-line with recognised best practice in professions generally and by comparison with ‘leading edge’ schemes for lawyers in other jurisdictions… The potential importance of CPD to ensuring continuing competence highlights the need to create schemes that are effective at supporting useful learning and reflection, and provide appropriate quality assurance.” It recommends a series of changes to make CPD more effective. I am sure that these recommendations will be taken forward.

5 Apprentices, paralegals and work experience

The Review makes a number of interesting comments on the importance of developing apprenticeship schemes (similar to those already offered by CILEX) to permit a non-graduate route of entry to the legal profession. At least part of the motivation for these recommendations is that such routes to entry may be more affordable than the current norm of a three year degree followed by a further year of professional study

It also notes that law firms are increasingly using para legal staff to provide legal services; it does not at this stage think there is any need to regulate paralegals, It makes a further interesting suggestion. ” In the context of the significant and substantial changes to both the private and public funding of legal services, there may be a role for independent paralegals in delivering well-priced quality services outside the currently regulated market. Further work should be undertaken to explore the potential of licensed paralegal schemes.” This could well create a context for the development of new forms of legal practice.

To ensure that those seeking work experience get a fair chance of getting an internship or other work experience, the Review recommends:

  • In the light of the Milburn Reports on social mobility, conduct standards and guidance governing the offering and conduct of internships and work placements should be put in place.

6 Next steps

Given that this review is the start of a process, it also recommends:

  • A body, the ‘Legal Education Council’, should be established to provide a forum for the coordination of the continuing review of LSET and to advise the approved regulators on LSET regulation and effective practice.
  • In the light of the regulatory objectives and the limited engagement by consumers and consumer organisations in the research phase of the LETR, it is recommended that the regulators ensure that appropriate consumer input and representation are integrated into the consultation and implementation activities planned for the next phase of the LETR.

My question is whether these recommendations will in fact match a world in which increasing numbers of Alternative Business Structures are being created, and in which the cost of legal education is so high. What do you think?

To read the report go to http://letr.org.uk/the-report/index.html

Written by lwtmp

August 17, 2013 at 10:26 am

Posted in Chapter 9

Doing away with prison?

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No one in their right mind would suggest this would they? Of course not. But a recent pamphlet written by Professor Andrew Ashworth and published by the Howard League for Penal Reform argues that in most cases involving what he calls ‘pure property offences’ such as theft, handling of stolen goods, criminal damage and fraud, use of imprisonment should be stopped.
He uses three principal arguments to support this apparently startling proposition.

  • First, he argues that there would be more chance of getting compensation paid to the victims of such crimes if the perpetrators were not banged up in jail, unable to continue to earn the money to pay the compensation.
  • Second, he argues that the community sentences that are now available to courts are much more stringent than they used to be, requiring those convicted to undertake work in the community, be subject to curfews and so on.
  • Third, such a policy would have a profound effect on prisons. At the moment, 20,000 people go to prison each year for theft or handling stolen goods (more than for any other crime), 5,000 for fraud and 1,000 for criminal damage. Giving people who commit these crimes financial penalties to compensate victims and community sentences rather than custody would reduce the sentenced male prison population by 8 per cent (5,000 men) and sentenced female prison population by 21 per cent (700 women). This would save approximately £230 million each year.

Initial Government reaction has been to state that there is no current intention to change the law. But this does not mean that these ideas are not worth considering seriously. Professor Ashworth is no ivory tower academic; he was for a number of years a member of the Sentencing Advisory Panel, latterly its Chair, before its functions were taken over by the Sentencing Guidance Council. He understands the practicalities and the political realities of making such proposals.

However, I think it is unlikely that they will be taken seriously until there is much more general public information about how community sentences work and why they are not just a ‘soft option’. As I argue in the book, it is hard to find a truly informed, rational debate on sentencing policy in the public media.

To read Professor Ashworth’s Pamphlet in full, go to http://www.howardleague.org/online-publications/It is a free download, but you need to register first.

For more information about the Howard League and its work go to http://www.howardleague.org/

Written by lwtmp

August 16, 2013 at 9:31 am

Posted in Chapter 5

Welcome to the Class of 2013

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Publication of the A level results is an occasion of high emotion. For those now in a position to be able to go on to the university and course of your choice, congratulations! For those who have not achieved as expected/hoped, commiserations. But don’t despair, there are plenty of alternative routes to your final career choice!
Those planning to study law are about to embark on a subject that is of central importance to your lives – just think of the importance of the concept of the rule of law in the modern world, and the difficulties of living in places where there is no rule of law.
The study of law is a hard discipline, requiring the development of acute analytical skills, but these days also other skills such as written and oral communication.
Those thinking of becoming lawyers will find a world that is in rapid transition, that will be quite different from what it was even 10 years ago.
Not only are rules of law subject to change – with new law being made all the time. But the institutions of the law are undergoing great change. New ways of doing legal work, new competitive challenges, new court procedures, new ways of resolving disputes.
My book Introduction to the English Legal System seeks to introduce you to think new world that is changing so rapidly. This blog is designed to enable you to keep up to date as you work your way through your course with what is happening in the wider legal world.
Oxford University Press have just published a short video in which I introduce a few of the main themes. Go to http://www.youtube.com/watch?v=_jyo3QldQDo.
For a bit more detail go to the ‘about this book’ and the ‘about this blog’ pages – you can find links at the right hand side of the screen.
Good luck with your studies, and if you have comments you’d like to share, please get in touch by making a comment on this blog. (No spam or trash please!)

Written by lwtmp

August 15, 2013 at 10:53 am

Posted in Chapter 1