Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for December 2020

Seeking legal help online: the challenge of design

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In December 2020 Roger Smith, who runs the excellent Law, Technology and Access to Justice website (at https://law-tech-a2j.org/,) posted an item about an important report from Australia.

Written by Jo Szczepanska and Emma Blomkamp, and published by Justice Connect (a not-for-profit Law Charity, see https://justiceconnect.org.au/) their recently published report Seeking Legal Help Online –
Understanding the ‘missing majority’
offers a range of practical ideas on how to design self-help resources that can actually be used by those seeking help. In Smith’s words: “It puts Australian experience front and centre of global discussion of a key topic.”

The phrase ‘missing majority’ in the title refers to the fact that the majority of people will not or cannot afford to use the services of legal practitioners to assist in the resolution of disputes or other problems. However, in the words of the report “as the missing majority progressively adopts technology, there are increasing opportunities to find new models of providing cost-efficient and effective free legal assistance at scale”. The report aims to find a better understanding of the opportunities to assist the missing majority through online resources, recognising their limits as well as their potential.

The report sought to answer the following 5 questions:

  1. How do people search for legal help online? The first set of insights describes the variety and mixed results of searching techniques used by participants in this research.
  2. What is the self-help journey like? This looks at the difficulties of trying to solve problems on your own. For example legal jargon is confusing for most people who haven’t studied law; the rules and procedures of the legal system can be opaque; and the process to understand and resolve an issue can be incredibly time-consuming. Indeed the whole process can be highly stressful.
  3. How can different resources help and how are resources used? The report draws on participants’ own analyses and explanations of why they would select certain tools, when they would use them, and what combinations of resources would work best for them and their issue. Where self-help became overwhelming, participants would start looking for a professional to help them.
  4. How can resources be improved? This considered the shortcomings of existing legal resources and the behaviour exhibited by people as they try to decipher and then apply new knowledge. These insights highlight issues of access, trust, accessibility, appropriateness and usefulness.
    Unfortunately, many online legal resources remain limited in their design, simply putting online existing forms and leaflets. Some people with disabilities cannot access or use online legal resources at all because the resources have not been designed with their needs in mind. Resources often also contain overly technical and complex language.
  5. How do help-seekers define a legal problem? This part of the study draws attention to the question of how a diverse range of people who find themselves in need of legal information or assistance try to find that information. Overall, the stories from participants and examples from live searches and testing of resources highlight the differences and commonalities of searching for legal help and information online.

In the light of the findings from the empirical part of the study, the final section of the report presents a series of recommendations and design principles, offering guidelines for improving online legal self-help resources. The recommendations focus on how to involve people with lived experience of trying to use existing resources together with relevant professionals in funding, researching, designing, testing, implementing, promoting, and evaluating online self-help resources.

Suggestions in the report are tailored for a range of different target audiences: users, funders, service providers, and resource makers. They are grouped under five main headings:

  1. Invest in information design and user experience;
  2. Involve people with lived experience in making online resources
  3. Break down silos between sectors, organisations, communities, and self-help
  4. Establish communities of practice to support makers of online self-help resources
  5. Invest in consumer outreach, search engine optimisation, communications, and marketing.

This blog does not reflect the detailed ideas contained in the report. Anyone wanting to develop new online resources should read this report for its ideas about how this might be done in ways that would actually help. The scope for innovations seems almost limitless. Policy on access to justice needs to take self-help seriously.

(This entry has been adapted from the report’s Executive Summary.)

It can be downloaded at https://justiceconnect.org.au/about/digital-innovation/missing-majority-report/

The state of legal services in England and Wales: new report from the Legal Services Board, 2020

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A second report on legal services which was published towards the end of 2020 is that by The Legal Services Board. Entitled The State of Legal Services 2020, the Board reflects on some of the Board’s achievements over the past 10 years sinceit began its work, which it argues have contributed improvements in the provision of legal services. The Board cites, in particular, the creation of new forms of legal service arising from the use of Alternative Business Structures; users of legal services reporting greater satisfaction with the services they receive; and providers coming to see that professional regulation does not create the barriers to innovation in the provision of legal services that was sometimes though to be the case.

However, the Board is clear that there is still much to be done. Their Report notes that::

  • 3.6 million adults in England and Wales have an unmet legal need involving a dispute every year
  • More than 1 in 3 adults (36%) have low confidence that they could achieve a fair and positive outcome when faced with a legal problem
  • Nearly nine in ten people say that “law is a game in which the skilful and resourceful are more likely to get what they want”

While many are concerned about reductions in the scale and scope of legal aid and increased pressure on third sector advice agencies, other factors also contribute.

  • Many people and businesses lack the capability and confidence to recognise legal problems and get help.
  • Comparison websites and customer review sites are not well established.
  • Only 30% of consumers shop around, and only 2% use a comparison service before choosing a law firm.

The Covid-19 pandemic has created challenges for both the profession and people who need legal services. Many are concerned that it has made existing social inequality starker. The pandemic has made the need for services that meet the needs of society more urgent.

To meet these challenges, the Legal Services Board has started a consultative process to develop a strategy – to be published in 2021 – for the next 5 years to address these concerns. The Board has decided that this strategy should be based on the following principles

  • Fairer outcomes – widening public access to advice and support and ensuring that no one has a worse outcome or quality of service due to their background or life circumstances. The sector must also build a more inclusive culture which enables anyone to enter the law and achieve their full career potential.
  • Stronger confidence – resolving long-standing questions around the scope of regulation and broadening access to redress. It also requires regulators to put the right mechanisms in place so that legal professionals deliver consistently competent and ethical legal services.
  • Better services giving consumers the information and tools they need to drive stronger competition, creating the right conditions for providers – including those yet to enter the market – to redesign legal services that respond to their needs. It also entails regulators fostering responsible innovation that commands the trust of both the public and legal professionals.

The LSB has also commented on the Competition and Markets Authority report published in December as follows:

“The CMA’s findings echo the conclusions of our recently published State of Legal Services 2020 report. Although pricing information given to people who need legal services is more transparent, price competition is still weaker than we would wish to see. The range of prices offered by different providers for the same legal service hasn’t yet narrowed in the way we would have expected. There hasn’t been any progress on developing indicators that would enable consumers to assess the quality of providers. Although more people are shopping around for legal services, this trend has not accelerated since the CMA’s study in 2016.

“Regulators and providers can do much more to improve competition in the legal services sector and to make it easier for people who need legal advice to find and compare services that meet their needs and make informed decisions.”

As I have noted in other contexts, the challenge for the regulatory bodies is to know how to transform these aspirations for improvements in the provision and delivery of legal services into practical effect. One thing that it may be necessary for the regulators to do is to indicate more clearly how they see current business models, used by those providing legal services, being developed so that practitioners can continue to be both commercially successful and the providers of legal services needed by the public. Without assistance, busy practitioners may not have the time or energy to think about doing things differently – especially those who are finding the current demands of practice overwhelming.

The LSB Report is available at https://www.legalservicesboard.org.uk/state-of-legal-services-report-2020. This links to the full report and evidence taken from those consulted by the Board.

The LSB comments on the CMA report are at https://www.legalservicesboard.org.uk/news/lsb-response-to-the-cmas-market-study-review.

Regulating the legal profession in England and Wales – new report from the Competition and Markets Authority

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Just before Christmas 2020, two important reports were published about how the legal professions in England and Wales should become more competitive and do more to meet unmet legal need.

I consider first a report from the Competition and Markets Authority which, on Dec 17 2020, published findings from its assessment of the impact of its earlier legal services market study in England and Wales. The CMA’s assessment of changes so far made in the legal services sector found some positive developments but concludes that further progress is needed.

The CMA recommends that the Legal Services Board, working with other regulators in the sector, continues to build on the reforms made so far to improve transparency of information that can help consumers make informed choices. It also states that the LSB must address some aspects of the market study recommendations that still require progression, such as providing more information on quality.

Alongside this, the CMA repeats its call for the Ministry of Justice to undertake a review of the Legal Services Act 2007. This seems unlikely to be progressed in the short term. The CMA is broadly supportive of Professor Mayson’s Review of Legal Profession regulation which was published earlier in 2020.

In the meantime, the CMA advocates that the Ministry of Justice and the Legal Services Board take some shorter-term steps which will deliver regulatory reform in stages.

These are that:

• The MoJ should create, or empower the creation of, a mandatory public register for unauthorised providers of legal services.
• The LSB should carry out a review of the reserved activities.
• The LSB should evaluate the impact of the revised Internal Governance Rules (designed to ensure adequate separation of the regulators’ representative and regulatory functions) before deciding on further action.

While the legal profession as a whole may not regard this report as an entirely welcome Christmas present, it seems clear that the CMA intends to keep up the pressure on the legal profession. More forward-thinking practitioners may however feel that a positive response to the report’s recommendations could create opportunities for developing new ways of working that will benefit both their bottom lines and society more broadly.

I noted Professor Mayson’s report (and his summary of it) at https://martinpartington.com/2020/06/11/legal-services-regulation-the-final-report/

The CMA report is available at https://www.gov.uk/cma-cases/review-of-the-legal-services-market-study-in-england-and-wales#review-report

I will comment on a new report from the Legal Services Board in a separate item.

Independent Review of Criminal Legal Aid – announcement

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Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced

The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:

  1. To reform the Criminal Legal Aid fee schemes so that they:
    • fairly reflect, and pay for, work done.
    • support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce.
    • support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer.
    • are consistent with and, where appropriate, enable wider reforms.
    • are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and
    • ensure cases are dealt with by practitioners with the right skills and experience.
  2. To reform the wider Criminal Legal Aid market to ensure that the provider market:
    • responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer.
    • operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience.
    • operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.

The document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,

“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:

a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”

Furthermore “in order to conduct this analysis, the review will consider the following themes:

  • resilience
  • transparency
  • competition,
  • efficiency; and
  • diversity.

For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.

The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.

Responding to Human Rights Judgments: 2019 to 2020 – new report

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Just a few days ago (18 December 2020) I noted the establishment of the Independent Review of the Human Rights Act 1998, to be chaired by Sir Peter Gross. One of the documents the review will, have to consider is the latest report by the Government to the Joint Committee (of the House of Lords and the House of Commons) on how it has been responding to judgements of the European Court of Human Rights (ECtHR). Despite its title, it covers a longer period than 2019-2020. Indeed, it provides important background on how the European Convention on Human Rights impacts on the UK.

What strikes me is, that while there have undoubtedly been a small number of controversial cases that have gone to the ECtHR over the last 20 years, the overall impact has been much more limited than many of the stories in the print media might suggest.

It is striking to see that the numbers of cases against the UK Government is actually very small – and many of the cases started are dismissed as disclosing no cause of action.

In the small number of cases which go against the UK Government, the outcomes of the Court seem to me sensible and balanced. (The low numbers may reflect the fact that, as a result of the enactment of the Human Rights Act 1998, it is easier to argue Convention issues in the UK courts than it used to be.)

Even where cases are taken in the UK Courts, the numbers of declarations of incompatibility made by the UK courts are also very small, and most being dealt with by changes to regulations rather than major legislative changes.

The report is available at https://www.gov.uk/government/publications/responding-to-human-rights-judgments-2019-to-2020

Written by lwtmp

December 22, 2020 at 4:08 pm

Review of the Human Rights Act 1998

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In its Election Manifesto for 2019 the Conservative Party announced that it wished to review the operation of the Human Rights Act 1998.

For a number of years, some politicians had been argung for a repeal of the act and its possible replacement with a ‘British Bill of Rights’. That idea never gained broad political support and seems to have fallen away. Certainly the announcement, on December 7 2020, of the current review states, in terms, that the Government remains committed to the European Convention on Human Rights.

According to the official announcement, the new review – chaired by retired Court of Appeal judge, Sir Peter Gross – has the following tasks. It will consider:

  • The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
  • The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
  • The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

The review is stated to be limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.

The announcement of the review also says that the new review ‘runs alongside’ the independent review of Judicial Review and ‘is part of the government’s work to deliver the commitment in the Manifesto to look at the broader aspects of the constitution and the relationship between the Government, Parliament and the courts’.

It seems that these 2 reviews, taken with ‘others to be announced in due course’ will deliver the ‘Commission on Constitution, Democracy, and Rights’ which the Government said it wished to establish. It is not at all clear whether there will be a separate Commission, or whether these separate reviews will, in some way, be welded together into some kind of final statement of policy. I would have thought that a distinct Commission would be essential to ensure that the outcomes from specific reviews were coherent.

The announcement of the HRA review is at https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act

I noted the review of judicial review at https://martinpartington.com/2020/08/07/independent-review-of-administrative-law/. See also https://martinpartington.com/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/

Written by lwtmp

December 18, 2020 at 11:17 am

The Fixed-term Parliaments Act: should it be amended or repealed?

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A really interesting discussion about the proposed repeal of the Fixed Term Parliament Act, noting that there are more issues involved than might at first appear.

The Constitution Unit Blog

A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.

On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:

The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once…

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Written by lwtmp

December 16, 2020 at 1:30 pm