Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for February 2016

English Votes for English Laws

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I have already noted the adoption by the UK Parliament of a procedure whereby Bills, or parts of Bills, which are certified by the Speaker of the House of Commons as applying to England alone will be voted on solely by MPs for English constiuencies. (See this blog 25 October 2015. The entry sets out in diagrammatic form the additional stages that a Bill to which these rules apply will have to go.)

We now have had the first example of a Bill being subject to the new Rules. When the Housing and Planning Bill 2015 was introduced in the House of Commons in October 2015, it was the subject of a Speaker’s Certificate that certain clauses did apply to England only. The original certificate has been replaced by a  new certificate reflecting changes that have been made to the bill.

A key part of the process involves the referring of the Bill to a Legislative Grand Committee. In January 2016, there was a short debate on this issue which revealed in particular the complaints of Scottich MPs that they were being treated as second class citizens.

To see the Speaker’s Certificates on the Bill, go to http://services.parliament.uk/bills/2015-16/housingandplanning/documents.html.

For the debate on the referral to the Legislative Grand Committee go to http://www.publications.parliament.uk/pa/cm201516/cmhansrd/cm160112/debtext/160112-0003.htm#16011280004400

 

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Written by lwtmp

February 10, 2016 at 10:55 am

Opening up the Court of Protection

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On 29th January 2016, a pilot scheme was launched designed to give greater publicity to the work of the Court of Protection.

This is a specialist Court which makes decisions about the personal welfare (e.g. medical treatment) and the property and affairs of persons who lack capacity to make them themselves, applying a best interests test. The Court of Protection’s main base is in London but it also sits throughout England and Wales.

The Court of Protection was established by the Mental Capacity Act 2005. It is responsible for:

  • deciding whether someone has the mental capacity to make a particular decision for themselves
  • appointing deputies to make ongoing decisions for people who lack mental capacity
  • giving people permission to make one-off decisions on behalf of someone else who lacks mental capacity
  • handling urgent or emergency applications where a decision must be made on behalf of someone else without delay
  • making decisions about a lasting power of attorney or enduring power of attorney and considering any objections to their registration.
  • considering applications to make statutory wills or gifts
  • making decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

It deals with about 25,000 applications under the Act each year. A high percentage of applications relating to property and affairs are not disputed and they are dealt with on paper without a hearing.

A new Pilot Practice Direction will apply to new proceedings issued from 29 January 2016. The Practice Direction effectively changes the default position from one where hearing are held in private to one where hearings are held in public with reporting restrictions to protect identities. This means that when an order has been made under the pilot, both the media and the public will be able to attend, unless a further order has been made which excludes them.

The work of the Court has not been totally hidden from public view.

  • Court of Protection judgments have been routinely published since 2010.
  • Serious medical cases (such as a decision to stop life support) are held in public, with the identities of those concerned kept anonymous.
  • Committal hearings where a custodial sentence is imposed are also held in public.

Her Majesty’s Courts and Tribunals Service (HMCTS) is also amending the way in which court lists are displayed, so that they provide a short descriptor of what the case is about, allowing the media and members of the public to make an informed decision on whether to attend the hearing. Lists will be published on a weekly basis in court buildings and online at www.courtserve.net.

This follows on from the development of practice in the Family Court where, for the last 6 years, accredited media have been able to report on proceedings. It is accepted that many will want these proceedings to be private; the pilot is designed to provide evidence about how the balance between publicity and privacy might be improved.

For further information see https://www.judiciary.gov.uk/announcements/court-of-protection-prepares-to-open-up/

Written by lwtmp

February 3, 2016 at 11:47 am

Posted in chapter 7, Chapter 8

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The Future of the Legal profession – a view from the Law Society

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I argue in my book that change is the key to understanding what is currently happening to the English legal system, and within that the legal profession.

In January 2016 the Law Society published its own challenge to the legal profession, looking at current trends and how they may have developed by 2020.

The press release accompanying publication of The Future of Legal Services states:

Changes to legal services will have an inevitable impact on the solicitor profession. We have identified the key drivers for change in the current landscape of legal services, and attempted to predict how solicitors’ and lawyers’ interests may change in the future, where they will face competition and what opportunities may present themselves in a changing market.

This report presents findings drawn from a range of sources: a literature review, round table discussions and interviews with a range of practitioners across different practice types, firm visit reports, and the outcomes from a series of three futures panels.

The key drivers of change in the legal services market can be clustered into five groups:

  • global and national economic business environments
  • how clients buy legal services (including in-house lawyer buyers, as well as small and medium-sized businesses and the public)
  • technological and process innovation
  • new entrants and types of competition
  • wider political agendas around funding, regulation and the principles of access to justice

It seems inevitable that solicitors and lawyers face a future of change on a varied scale, depending on area of practice and client types. Business as usual is not an option for many, indeed for any, traditional legal service providers. Innovation in services and service delivery will become a key differentiating factor.

Two particular points stood out to me from an initial reading of what the Law Society has to say:

  1. They clearly take the view that the current model for the small ‘high-street’ practice has little future, particular as current practitioners retire. It is not a sustainable model for the future.
  2. The Law Society notes that 25% of practitioners now work as in-house counsel, so the amount of reliance of the corporate sector on firms of solicitors in private practice would seem to be reducing.

At the same time, the Law Society is convinced that imaginative and innovative lawyers will be able to develop new forms of legal service which will both offer them a living and provide a needed service to the public.

The report reinforces the view that students coming new to the study of law will have a lot to keep up with if they are to understand the professional world they may hope to enter in just 5 – 6 years’ time.

To see the report, go to http://www.lawsociety.org.uk/news/stories/future-of-legal-services/

Written by lwtmp

February 2, 2016 at 6:25 pm