Archive for October 2017
Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012
In 2008, the then Labour Government announced its support for the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”
The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission, and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.
Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,
- the changes to the Legal Aid scheme, and
- the changes to rules on the funding of litigation.
This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low and Bach Commissions’ reports.
It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).
The text of the memorandum is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
UKAJI New Voices Workshop: Report
Interesting collections of papers by younger researchers in administrative justice
Employment Tribunals fees: payback scheme
In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 (noted in this blog on 1 October 2017) the Supreme Court held that the fees being charged for taking cases to Employment Tribunals were so high that they were effectively barring access to justice. In consequence the Court ruled that the fee scheme was unlawful. The Government has now announced arrangements for the refunding of those fees. Stage 1 of the refund scheme became operative on 20 October 2017.
It is clear that the Government plan to introduce a revised scheme which they hope will meet the Supreme Court’s objections.
For the announcement see https://www.gov.uk/government/news/opening-stage-of-employment-tribunal-fee-refund-scheme-launched
Redrawing Parliamentary constituency boundaries?
The Parliamentary Voting System and Constituencies Act 2011 had two objectives. The first was to authorise the holding of a referendum on whether the ‘first part the post’ voting system used in general elections should change to one that offered some proportional representation. The idea was rejected.
The second was that the number of MPs in the House of Commons should be reduced from 650 to 600, and that the population size of constituencies should be made more equal.
It was originally intended that these measures should be introduced for the 2015 General Election, but the Lib Dem members of the Coalition Government scuppered the idea, as they could not persuade the Conservative partners in the Coalition Government to take House of Lords reform seriously.
Meanwhile the Boundary Commissions of England, Wales, Scotland and Northern Ireland have been beavering away, developing proposals for realigning parliamentary boundaries. They have just (October 2017) published a second round of consultations on their latest proposals. Final report reports are due in 2018.
The unknown question at the moment is whether the present Government will in fact go ahead with the proposed reduction in the numbers of seats. Many have argued that the fact that Mrs May does not have an overall majority in the present Parliament will mean that she cannot afford to run the risk of defeat on any proposal to fully implement the Boundary Commissions’ proposals.
Each Boundary Commission has its own website. The one for England is at https://boundarycommissionforengland.independent.gov.uk/2018-review/
The Right to Justice: Final Report of the Bach Commission
In September 2017, the Bach Commission (chaired by Lord Willy Bach) published its report on the Right to Justice. The Commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement.
The commission found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.
Covering many of the same issues as the Low Commission (which reported in 2014) this report makes the following specific recommendations.
The commission has concluded that the problems in the justice system are so wide-spread that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This Act would:
- codify existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford;
- establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation;
- establish a new body – the Justice Commission – to monitor and enforce this new right.
The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice.
In addition, early government action is also required.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice.
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. In particular, all matters concerning children should be brought back into the scope of legal aid.
- An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers.
- Public legal capability must be improved through a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community.
My own view is that there is a growing consensus that the cuts to legal aid have gone too far. I have doubts whether there will be a wholesale return to the legal aid system that existed before the programme of cuts that has been going on for the best part of a decade.
This is potentially an important area of policy making. However, when considering new policies:
- more attention should be given to new ways of delivering legal services, embracing new technologies that would allow more to be provided for less;
- greater consideration of alternative sources of funding for the provision of legal advice and assistance, especially through different forms of insurance;
- the legal needs of small and medium size business should be treated as seriously as the legal needs of individuals, and
- there should be a recognition that there is scope for ‘do-it-yourself’ lawyering.
The Bach report may be downloaded from http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf
The Report of the Low Commission is at https://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf together with a follow up report, published in 2015 at https://www.lowcommission.org.uk/dyn/1435772523695/Getting_it_Right_Report_web.pdf
Research into Alternative Business Structures: the Legal Services Board
Since licensing began in 2011 there have been 950 ABS licences issued. As of March 2017 there were 892 active licences. In April 2017, the Legal Services Board published a significant report into ABS. It sought to address 4 questions, which I have adapted from the report and which I try to summarise here:
1.What kind of investment activity has there been in ABS?
These businesses are predominantly existing legal service businesses converting to ABS status, with one in five respondents to our survey being new firms. Three fifths of ABS have less than 50% non-lawyer ownership. Just under one in five ABS are wholly owned by non-lawyers, with a similar proportion being fully owned by lawyers but having some proportion of non-lawyer managers….
The research shows that the majority of ABS firms (66%) either have already invested or are planning to do so, since they gained their ABS licence. These investments have mainly been made to hire more staff, increase marketing activity or to purchase IT. The LSB sees this as evidence of the increased scale that allowing non-lawyer ownership was designed to enable.
2.Is the market attractive to all sources of finance?
The survey shows ABS firms accessing a wide range of sources of finance, and only a small proportion of ABS indicating difficulties in accessing finance. The most frequent source of funding for investments was business profits or cash reserves which were used by 49% of those who had invested in their business. Just over a quarter of investments were solely funded us ing a loan from a bank, and a quarter were solely funded using the business’ overdraft facility.
External sources of equity finance accounted for only a minority of investment funding sources either as the sole or joint source of investment funds, and only 12% of ABS had used any form of external finance. Partnerships are more likely to use debt funding for finance, with 55% using loans or overdrafts, but none had used external investment. Companies limited by guarantee had the highest proportionate use of any form of external funding, with 24% issuing shares, investment from private equity, or becoming a subsidiary of another company.
3. What do investors think of the legal services market?
According to the investors interviewed, the legal sector is seen as a ‘sleepy’ market with opportunities for investors to grow their investment capital by improving efficiency within the business itself. They appear to have concerns about the ability to exit the legal sector once their investment has matured, although there are some examples of private equity investors having sold on their investment and exited the sector.
Except perhaps in the personal injury sector, it would appear that bank lending is a substitute for external capital. For the firm this means they do not have to cede ownership control of part of their business. In addition, there is a view that many firms do not present financial information in the ways investors expect and/or have a weak grasp of the value of their businesses.
This might explain the investor’s perspective of the legal sector as being reluctant to seek investment from private equity firms, and reports of investors struggling to find appropriate firms in which to invest. While the overall size of the market and the scale of businesses operating may limit opportunities for some investors, the LSB thinks that cultural norms, governance, and non-commercial financial management practices in some businesses are likely to be more important factors.
4. Are there any regulatory barriers to investment?
Only 6% of ABS identified some aspect of legal services regulation that prevented them accessing finance. Nor does the cost of legal services regulation appear to be a barrier… However there is anecdotal evidence of some areas of regulation causing concern to investors. These includes restrictions on ownership and picking up liabilities for historic complaints and insurance claims.
Only 1.5% of ABS identified some aspect of wider regulation that prevented them accessing finance. The regulatory barriers to investment cited by the investor and investment consultant we spoke to relate mainly to wider regulatory and governmental activity, particularly in relation to personal injury reforms
Conclusion:
The potential link between investment and enabling better access to legal services is well–rehearsed elsewhere. However, investment remains an under-explored area of research and generally licensing authorities have not used their data to understand trends in investment and financing. [Overall it may be concluded that] levels of innovation are not increasing.
The dynamics of competition create incentives for suppliers to increase productivity through innovation, which lowers costs and hence prices through time. This is likely to involve taking a different approach to delivering a service, or developing new services completely. In the absence of strong competition, there is insufficient impetus for law firms to take the greater risks (and rewards) involved with using external capital.
Until these incentives change the LSB thinks there is unlikely to be significant growth in the use of external capital by ABS firms.
The report can bee seen at http://www.legalservicesboard.org.uk/news_publications/LSB_News/PDF/2017/20170613_LSB_publishes_investment_in_legal_services_research.html
Next steps for ADR?
In October 2017, the Civil Justice Council published an important consultation paper on the future of ADR.
The paper noted:
The stage has been reached where in various categories of dispute in England and Wales (notably family and employment) the parties are actually required to take steps directed solely to exploring settlement. Nobody in these systems is required to settle, but they are required to commit time and often money to exploring the possibility.
The Courts and rule makers in the non‐family civil justice system in England and Wales have been less forceful. The encouragement of ADR is currently achieved by:(a) exhortations to try to settle and to use ADR in Court forms and documents;(b) links and signposts to sources of information about ADR(c) tick‐box requirements that clients have, for example, been advised of the need to settle if possible and of the availability at ADR(d) costs sanctions being imposed after judgment in the relatively rare cases in which one party can establish that his opponent has unreasonably refused or failed to mediate.(e) the Courts’ acknowledgement that litigation lawyers are now under a professional obligation to advise their clients of the availability and advantages of ADR.Almost all of these measures are well crafted and well thought out. But in our view the system as a whole is not working….
the Court should promote the use of ADR more actively at and around the allocation and directions stage. We think that the threat of costs sanctions at the end of the day is helpful but that the court should be more interventionist at an earlier stage when the decisions about ADR are actually being taken. We think there should be a presumption that in most cases if parties have not been able to settle a case by the directions stage they should be required to bring forward proposals for engaging in some form of ADR.
Some of us, a minority, would go further and introduce ADR either as a condition of access to the Court in the first place or later as a condition of progress beyond the Case Management Conference…
Overall we draw attention to the fundamental problem of the failure so far to makeADR familiar to the public and culturally normal. Meeting this wider challenge willultimately be more important than any tuning of the rules of civil procedure.
The Consultation runs until mid-December 2017. The Interim Paper is at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/interim-report-future-role-of-adr-in-civil-justice-20171017.pdf
Martin Partington: An Introduction to the English Legal System 2018-2019
Online Resources