Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

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Changing the Court and Tribunal estate – revised principles 2019

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Introduction

The court and tribunal estate has changed significantly since 2010. In making its changes, the Ministry of Justice applied a number of key principles: maintaining access to justice, delivering value for money, and ensuring operational efficiency. Savings achieved are being used to finance reform of the Courts and Tribunals service. The reform programme will change the ways court and tribunal services are delivered. In particular, improved technology will be designed to enable people to access justice in simpler, easier and swifter ways. Provision for hearings in courtrooms will remain essential for the delivery of justice, but fewer interactions with the court and tribunals system are likely to happen in a courtroom.

Nonetheless, court closures are controversial. Many involve much-loved local historic buildings. Many complain about the time needed to get to an alternative court/tribunal building if an existing venue is shut. In 2018, the Ministry of Justice launched a consultation on the principles in should adopt in relation to any further closures it might argue are necessary. In ‘Fit for the Future: Transforming the Court and Tribunal Estate’, published in May 2019, the Government set out its response to this consultation.

The Government has stated “We need to consider further court closures in the context of our modernisation approach, which will ensure that we provide fair and proportionate access to justice. We expect an increase in the number of people using remote access to the courts which will reduce the use of court and tribunal buildings in the future. We make a commitment that we will not act on that assumption by proposing to close courts unless we have sound evidence that the reforms are actually reducing the use of those buildings.”

Travel time

The issue that worried respondents most was how the time of travel to and from court was being assessed. The Ministry had proposed that the benchmark should be an ability to get there and return home within a day. Respondents argued this was too vague. The Ministry of Justice has responded: “ We have therefore enhanced our principles to make it clear that we expect journeys to court to be reasonable, and set out that for the overwhelming majority of users a reasonable journey would be one that allowed them to leave home no earlier than 7.30am, attend their hearing, and return home by 7.30pm the same day, and by public transport where necessary. We have also set out in much greater detail how we will measure this, what other factors we will consider – for example, the circumstances of users including those that are vulnerable, and the mitigations we can apply when users have difficulty attending court.”

Court/tribunal buildings design

While people were broadly positive about proposals regarding the design of court and tribunal buildings, there was a clear message that the security of those who use and work in our courts and tribunals needs to be paramount, along with ensuring suitable facilities for vulnerable users. The Court and Tribunal Design Guide (published at www.gov.uk/government/publications/court-and-tribunal-design-guide) provides a flexible room design which includes enhanced security standards and provides for the needs of vulnerable victims and witnesses.

Digital support officers

Digital Support Officers will support the introduction and longer-term support for digital services in local courts, as well as support which will assist users who do not wish or are unable to access online services. This development was broadly welcomed. There were concerns regarding the resourcing of these services. The Ministry has stated that it “will ensure that the right number of staff support these activities.”

Future closures

The Ministry expects that increased use of digital services will mean that fewer court and tribunals hearings will be needed in a traditional courtroom setting, and therefore fewer buildings will be needed. However, “we are committed to having clear evidence that these reductions are happening before we decide to close any further sites.”

Revised estates principles

“• Everyone who needs to access the court and tribunal estate should be able to do so. Journey times to court should be reasonable and take into account the different needs and circumstances of those using the courts. Mitigations are available for those who experience difficulty attending court.

  • We want to make sure that our buildings are in the best condition possible for those that use them and that they can be maintained at a reasonable cost to the taxpayer.
  • We will focus on the provision of multijurisdictional centres which are able to provide flexible access for the people who use our courts and tribunals. We will harness the power of technology to offer enhanced access and greater flexibility.”

Comment

Revised statements of principle will not prevent future controversy. Indeed, at the end of October 2019, the Justice Select Committee issued a very critical report on the whole court reform programme in general and the court closure programme in particular. There have been many critical comments in the professional legal press.

My own view is that the court/tribunal reform programme will, in time, be an improvement on the present system. However as all those who come into contact with courts and tribunals will have to adapt to the new system, there will be nervousness ahead of proposed changes that have not yet been implemented.

The item is adapted from https://www.gov.uk/government/consultations/fit-for-the-future-transforming-the-court-and-tribunal-estate which sets out both the original consultation paper and the Government’s response.

The Justice Committee critique is at https://publications.parliament.uk/pa/cm201920/cmselect/cmjust/190/19003.htm

Justice in Wales – a developing picture

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Until relative recently it was possible to state that, for all practical purposes, the justice system in Wales was the same as the justice system in England.

Since devolution began, following enactment of the Government of Wales Act 2006, this statement needs qualification. Following the passing of the Wales Act 2017, the pace of change has quickened.

Two major initiatives are in progress. First, an Independent Expert Advisory Committee has been looking at the operation of Justice in Wales. Second, the former Lord Chief Justice, Lord Thomas, has been commissioned by the Welsh Government, to undertake a review of justice arrangements in Wales.

Lord Thomas’s review is expected in Autumn 2019. This note reports on the first report from the Independent Expert Advisory Committee.

The Committee’s terms of reference are to:

  • review the operation of the justice system in Wales on an ongoing, periodic basis.
  • make recommendations that ensure that the justice system in Wales keeps pace with both Assembly and Parliamentary law making within the single jurisdiction.
  • monitor the effectiveness of administrative arrangements on justice in Wales and make recommendations to deliver efficient and effective justice services across the devolution boundary, building on examples of good practice and co-operation.

The report states:

The Committee is considering the effects of laws passed by the National Assembly for Wales and the UK Parliament on the operation of the justice system within the single legal jurisdiction in England and Wales and is working strategically to identify key challenges in the justice landscape in Wales, how they can be overcome and wider opportunities for better administration of justice.

These challenges and opportunities cover all areas of the single legal jurisdiction, including criminal justice arrangements; courts and tribunals; prisons and probation; legal practice and the judiciary.

The Committee is also monitoring any issues relating to the relationship between reserved and devolved tribunals.

The Committee is also considering the wider implications of policy developments in UK government on the operation of justice in Wales, in order to recommend sustainable long-term solutions that would improve delivery. This work provides opportunity for a structured approach to tackling challenges identified in this first report on the operation of justice in Wales.

The report also states:

The key issues the Committee are currently focusing on are divergence in laws and accessibility of Welsh laws. The main priorities are to ensure that the impacts on the justice system of diverging laws and legislation are properly identified, accessibility of Welsh laws is improved and that there is continually improving collaboration between the MoJ and Welsh Government officials.

This is therefore work in progress, the outcomes from which are not yet clear. But what is clear that over coming years the justice system in Wales will increasinly diverge from that in England – an issue on which lawyers both in England and Wales will need to take note.

The first report of the Independent Expert Advisory Committee is at https://www.gov.uk/government/publications/justice-in-wales-first-report-of-the-independent-advisory-committee-on-justice-in-wales

 

Written by lwtmp

September 20, 2019 at 9:51 am

Re-thinking legal services regulation

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I have reposted this excellent blog by Stephen Mayson, who is undertaking very important work on the need to further reform the regulatory structures for the legal professions.

StephenMayson

My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here).  This post is extracted from it.

While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.

For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure.  These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.

This lack of follow-through has led to increasing challenges to the integrity…

View original post 1,603 more words

Written by lwtmp

September 19, 2019 at 11:19 am

On-line courts come a stage closer: Bill to establish new On-line Procedure Committee

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May 1st 2019 saw an important stage reached in the process of creating more on-line procedures to deal with family, civil justice and tribunals proceedings. The Courts and Tribunals (Online Procedure) Bill was introduced to House of Lords where it had its first reading.

The Bill, when enacted, will provide for the creation of a new judicially led procedure committee. It will develop special rules to ensure that on-line procedures are easy to use and accessible to the public.

This builds on new processes already introduced such as divorce online and money claims online.

A press announcement is at https://www.gov.uk/government/news/even-more-people-set-to-benefit-from-online-court-reform

 

 

 

Encouraging Judicial Diversity

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In April 2019, the Judicial Diversity Forum launched a new initiative designed to encourage talented lawyers from the Black and Ethnic Minority community to think about applying to become a judge. The first part of this programme is a series of YouTube videos – which can be watched by anyone interest. A further part of the programme – judge-led discussion group courses – will launch later in 2019.

This is the first joint initiative of the Judicial Diversity Forum, which is made up of the Judiciary, Ministry of Justice (MoJ), Judicial Appointments Commission (JAC), The Bar Council, The Law Society of England and Wales and the Chartered Institute of Legal Executives (CILEx). Forum members are committed to delivering actions that attract applicants for judicial roles from all backgrounds to achieve a more diverse judiciary.

PAJE offers participants from all legal backgrounds the opportunity to develop their understanding of the role and skills required of a judge, through a series of digital resources including 10 short online videos and four podcasts, developed by the Judicial College, which show judges talking about their work and the Judiciary.

These digital resources cover a number of topics such as judgecraft, decision-making, judicial ethics, resilience and equality and diversity.

For further information see https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/pre-application-judicial-education-programme-paje/

The YouTube videos may be viewed at https://www.youtube.com/channel/UCi3XytDJY8a3I9_vL7A_5SQ
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Judicial decision making – tackling the problem of ‘cognitive bias’

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When coming to decisions, we all have a tendency to reach decisions that are not entirely logical or free from bias. We should all aim to limit the effects of such biases. This is particularly important for those reaching decisions in a judicial setting. However, this is hard to do unless we know about the biasses that may exist and how they may be countered.

In a recent edition of Tribunals Journal (2018 No 2) Simon Ward – a medic who also sits as medical member of the First Tier Tribunal – discusses five major types of cognitive bias that exist when we are required to weigh evidence before reaching a decisions. He also considers techniques for countering these biasses.

  1. Representativeness. Similarity or resemblance to a group is used to imply representativeness of that group rather than using the real probability of membership. Applying the actual base rate rather than the perceived occurrence rate of the factor being considered, is recommended so the correct likelihood is utilised.

  2. Availability. Easily recalled or available memories or experiences are used to predict or estimate an outcome rather than the actual objective occurrence. Using measures to reduce reliance on memory such as reminders, prompts and checklists, is advocated so that accuracy is maintained.

  3. Anchoring. Salient or prominent features are preferred and given undue influence or anchored onto before evaluation is completed. Slowing down decision making to allow time to evaluate matters fully is advised so the correct weight or apportionment is applied.

  4. Confirmation. Information that confirms our own pre-existing expectations or beliefs is filtered and selected in preference to opposing or contradictory aspects. Actively seeking out alternative possibilities or positions is suggested so as to challenge and counter subjective, partisan or partial viewpoints.

  5. Optimism. Overconfident or optimistic evaluations are made of how much we know and how reliably we know it, whilst our own knowledge limits are undervalued. Comparing the current evaluation to a reference group of similar membership is recommended so as to allow calibration of the current decision

The article gives further examples of the applications of these principles and how they may be applied in practice. The lessons are, of course, important for all decision-takers, not only judges. It is an issue to which, historically, little attention has been paid in judicial training. It is very interesting that a practicing tribunal member should be seeking to share his expertise on this often misundertood issue.

The full article is at https://www.judiciary.uk/wp-content/uploads/2018/03/tribunals-journal-edition2-2018.pdf pages 2-9.

 

 

 

 

 

Written by lwtmp

March 4, 2019 at 12:58 pm

Public Legal Education: the Solicitor General’s vision

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In the past, the Attorney-General tried to promote the cause of Public Legal Education. This role seems now to have been delegated to the Solicitor-General.

In October 2018, the current post-holder, Robert Buckland MP launched a new ‘vision’ to which he hoped interested organisations would sign up.

The Press Release stated:

The statement creates a shared vision for the PLE community to aspire to which will help drive forward legal education initiatives. The statement reveals 7 goals for where PLE might be in 10 years’ time.

The goals are:

  1. PLE will be supported by a robust evidence base, showing what the need is and what works best.

  2. PLE will be of high quality, maintained to ensure that it remains accurate and accessible and useful for the people who need it.

  3. PLE will be universal and reach across all demographics, prioritising children, young adults and vulnerable groups

  4. PLE will be scaled up through delivery by the legal community

  5. PLE will harness technology and be delivered through innovative methods, both on and offline

  6. PLE will be embeded into public services and government departments

  7. PLE will be understood as beneficial and utlised by other sectors

Whether much can be achieved without additional investment in the development of PLE must be a moot point, but I suppose that a statement such as this is better than nothing. The statement was launched at an event organised by the All Party Parliamentary Group on Public Legal Education and Pro Bono legal work.

See https://www.gov.uk/government/news/our-vision-for-legal-education

Written by lwtmp

November 21, 2018 at 3:51 pm