Martin Partington: Spotlight on the Justice System

In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:

Dropped
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.

Incomplete
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.

2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.

Completed
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.

Comment

It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.

Just as legal aid lawyers might have thought that they had suffered their cuts, along comes another Consultation Paper setting out more ideas for reform – designed, of course, to further reduce public expenditure on legal aid.

The Consultation Paper, Transforming Legal Aid: Delivering a more credible and efficient system, published on April 9th 2013, contains a rather complex mix of ideas that the Government is seeking to pursue.

The headline changes that are under consideration include:

• Removing criminal legal aid in prison law cases that do not justify the use of public money – such as complaints about the category of prison or correspondence a prisoner is allowed.  The Government argues that many such cases can be addressed by the prisoner complaint system.
• Introducing a threshold on Crown Court legal aid to stop wealthy defendants with an annual household disposable income of £37,500 or more being automatically granted legal aid, which would avoid having to fight to get the money back after their trial.
• Introducing a residency test so that only those with a strong connection to the UK are able to receive civil legal aid.
• Discouraging so-called ‘weak’ judicial review cases by tightening up the payment mechanism, only paying providers for work done on bringing a claim once a judge has agreed the case is strong enough to proceed.
• Making it harder for claimants to use civil legal aid to bring speculative cases by tightening the test so that all cases must have at least a 50% chance of success to be funded.
• Introducing competition for legally-aided advice and representation (not including Crown Court advocacy).
• Restructuring the Crown Court advocacy fee scheme by paying the same rates to advocates irrespective of whether there is an early or a late guilty plea or a short trial. This proposal provides more incentive to complete cases as early as possible.
• Reducing certain legal aid fees paid in civil cases and to experts.

These new proposals will be hard fought by the legal professions, in particular the proposal to introduce competitive tendering for the supply of criminal defence services – an issue that has been around a long time but which successive Lord Chancellors have – until now – fought shy of pursuing.

Further information, including links to the consultation paper are at https://www.gov.uk/government/news/making-legal-aid-fairer-for-taxpayers–2
See also https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

The Consultation runs until June 4th 2013

So the Legal Services Commission has finally closed to be replaced by the Legal Aid Agency. At present, little information about the new agency is available. Its website currently sets out its priorities and its senior management team.

Readers will be kept in touch with developments as they arise.

To find the current offering from the agency, visit http://www.justice.gov.uk/about/laa

The Solicitors Regulatory Authority published a report in January 2013 on progress with ABS during its first year. This shows that the pace of applications for and approvals of ABS licences has quickened. Of the 70 or so approvals granted by January 2013, 40 were approved over the months before that date.

Evidence that the approval rate is not slackening can be seen in the announcement at the beginning of March 2013 of the licence granted to BT Law Ltd. This is stated to bring the total of approvals to over 100.

Information from the SRA is at http://www.sra.org.uk/sra/news/press/abs-one-year-on.page

Information about BT Law Ltd is at http://www.btplc.com/news/articles/showarticle.cfm?articleid={2a29c4bb-5c5b-4ef3-861f-7c00a0c6653b}

The full register of ABS approvals is at http://www.sra.org.uk/absregister/

When the Legal Services Commission was created, legal aid was technically replaced by the Community Legal Service and the Criminal Defence Service. The abolition of the LSC, from 1 April 2013, is leading to some significant ‘rebranding’. This note summarises the changes, and updates the text in my book which is now out of date.

1. The Legal Services Commission becomes the Legal Aid Agency on 1 April 2013 .
2. Community Legal Service (CLS) will be referred to as civil legal aid from 1 April 2013.
3. Criminal Defence Service (CDS) will be referred to as criminal legal aid from 1 April 2013.
4. Community Legal Advice will be renamed as Civil Legal Advice from 1 April 2013. It will have the strapline: ‘Civil Legal Advice, a national adviceline for England & Wales, paid for by Legal Aid’.
5. CDS Direct will be renamed as Criminal Defence Direct (CDD) from 1 April 2013.

See http://www.justice.gov.uk/legal-aid/newslatest-updates/crime-news/what-happens-to-lsc-logos-in-april-2013

Since 2008, when section 194 of the Legal Services Act 2007 came into force, it has been possible for litigants who are assisted on a pro bono (for free) basis to ask for some costs from the losing side.
They do not get the money for themselves since, by definition, their case has been argued for nothing. But any pro bono costs that are awarded are paid to a nominated charity – the Access to Justice Foundation – which can then use the funds to promote other legal service activities.
The sums involved in no way compensate for the cuts the legal aid that will start to bite in April 2013. But it is a development which, while still in an embryonic stage, may help to create new ways of providing at least some access to justice.
More detail of the work of the Access to Justice Foundation is at http://www.accesstojusticefoundation.org.uk/

In an earlier blog entry, I noted the preliminary work of the Legal Education and Training Review. They have now published an essay by one of their consultants, Professor Richard Susskind on the future of legal education.
In my view, anyone engaged in legal education should read this – students, lecturers, professional trainers, practitioners.
His principal argument is that the business and technological environment within which law is developing is changing so rapidly that the review must try to anticipate what the shape of legal education should be for meeting legal services that will be developed in the future. He fears that too many of those engaged in legal education neither know nor care about how the practice of law is developing, with the result that there may be more attention paid to the past and the present rather than the future.
He urges law teachers and legal practitioners to develop much better interactions – practitioners coming into the law schools to bring academic subjects alive; law teachers sitting in legal practices to see how client demand and technological change is reshaping practice.
He also wants law teachers to understand better the new types of paralegal practice which will be an important feature of the new legal services world.
The lecture can be downloaded and read at http://letr.org.uk/wp-content/uploads/2012/10/Susskind-LETR-final-Oct-2012.pdf

In October, the outgoing director of JUSTICE delivered an extremely thoughtful lecture on how legal services for the poor should develop, following the enormous cuts that will result from the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

In it he argues that there is no point in simply hoping that a future government will restore the cuts now being made; that is not going to happen.

Instead, we have to think much more creatively about how legal advice and support services are delivered – more imaginative use of Information Technologies, for example; and also more more thought about how we may law more understandable – so that people can understand more of their rights and obligations without the need for lawyer interpreters.

My own beef is that recommendations the Law Commission made relating to clarifying the terms and conditions on which landlords and tenants rent property – which affect a third of the population – could have re-engineered this very important and practical area of law, were not taken forward by government. The more general point is that if governments continue to enact protective legislation – which is an important past of their work – it must be done in a way that is meaningful to the people directly affected, not just to the lawyers who will no longer be on hand to assist.

The lecture is extremely stimulating. Not everyone will agree with what it says. But it is worth reading. You can download the text at http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf