Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 4’ Category

Mandatory retirement age for judges

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For a number of years, concern has grown about the ability of the courts’ system to recruit judges, particular to the most senior positions in the High Court. One obvious idea, which gained considerable traction in 2020, was that the mandatory retirement age (MRA) for judges, set some years ago at 70, should be increased.

In July 2020, the Government launched a consultation on whether this would be a good idea, and if so what any new age limit should be. The results of this consultation are now in and were published in March 2021.

The Government has now decided that it will increase the MRA to 75, thereby putting the MRA back to the level it was some 20 years ago when the present MRA was introduced.

It might have been thought that this change could be made relatively straightforwardly, but in fact statutory amendment is required. In the familiar phrase used on these occasions, this will happen ‘when parliamentary time allows’.

This is often seen as pushing the required change into some indeterminate future date. My hunch is that, in this context, there is a degree of urgency. I doubt whether there will be a separate Act of Parliament on the point. But it would not surprise me if a clause was inserted in an appropriate Bill going through Parliament in the near future.

The consultation and the Government’s response are available at https://www.gov.uk/government/consultations/consultation-on-judicial-mandatory-retirement-age

Written by lwtmp

April 12, 2021 at 12:46 pm

What do judges think about their job?

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The UK Judicial Attitude Survey is a longitudinal survey conducted by Prof Cheryl Thomas of the University College London Judicial Institute. It covers all serving salaried judges in England & Wales, Scotland and Northern Ireland. It assesses judges’ views and experiences of their working lives over time. The results of the 3rd JAS were published in February 2021; earlier surveys were published in 2016 and 2014. With close to 100% participation over 6 years, this report provides a reliable assessment of judicial attitudes to their working lives and how they may have changed over this time period. The following note, which I have adapted from the Executive Summary, sets out the headline findings.

1 General feelings

Virtually all judges feel they provide an important service to society and have a strong personal attachment to being a member of the judiciary. They have a deep commitment to their job.

While judges feel most valued by their judicial colleagues at court, court staff, the legal profession and parties in cases, only two thirds feel valued by the public. Very few judges feel valued by the Government (9%) or the media (12%), and no judges feel greatly valued by the Government or media.

2 Working conditions

A majority of judges said that working conditions were worse than they were two years ago,

The courts judiciary feels working conditions have deteriorated more in the last two years than do judges in UK tribunals.

A majority of judges rated the following as Good or Excellent: security at court, quality of administrative support and physical quality of judges’ personal work space. One working condition rated Poor by a majority of judges was the morale of court and tribunal staff.

Over a third of judges continue to have concerns about their safety out of court.

Almost half of all judges said they would like more guidance on how to deal with internet and social media coverage of their work as a judge.

3. Salary and pensions

Most judges were paid more before they became a judge than they are paid in post. Two-thirds of all salaried judges feel that their pay and pension entitlement combined does not adequately reflect the work they have done and will do before retirement.

4. IT Resources and the New Digital Programme

A majority of judges said that the standard of IT equipment provided to them personally to use in 2020 had improved from 2014 and 2016, and that internet access and IT support in 2020 had also both improved from 2014 and 2016. But they felt that the standard of IT equipment used in courts and tribunals in 2020 had continued to decline since 2014 and 2016.

By 2020 virtually all salaried judges were on e-Judiciary (the internal web-based communications system), and most judges rated it as either Excellent to Good or Adequate.

By 2020 wifi was available in nearly all court/hearing rooms. Most judges rated its quality as Excellent/Good or Adequate.

5. Working during the Covid-19 emergency

During May-June 2020, a majority of judges  said that the judiciary was managing change well during the Covid-19 emergency. The extent to which judges were working in their court or tribunal varied substantially by judicial post during the first lockdown in May-June 2020.

6 Future planning

A large proportion of the salaried judiciary say they might consider leaving the judiciary early over the next 5 years. In 2020, a new factor, “lack of respect for the judiciary by government”, was more significant in prompting judges to leave early than any other factor identified in 2016. There was also a substantial increase from 2016 in judges who said that stressful working conditions, increases in workload and further demands for out of hours work would make them more likely to leave the judiciary early.

A majority of judges said the same 3 factors would make them more likely to remain in the judiciary: higher remuneration, better administrative support and restoration of previous pension entitlements.

7. Recruitment

In 2020, almost two-thirds of all judges said they would encourage suitable people to apply to the judiciary. The main reasons for this were: the chance to contribute to justice being done , the challenge of the work,  public service and intellectual satisfaction

The full report is available at https://www.judiciary.uk/announcements/judicial-attitudes-survey/

Written by lwtmp

April 12, 2021 at 12:25 pm

Responding to Covid-19: the work of tribunals

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All parts of the English Legal System have been affected by Covid 19 – some more adversely than others. The criminal justice system in particular is under severe pressure – not all the result of covid.

By contrast, one sector of the justice system that has risen to the challenge of Covid particularly well is the Tribunals system. It has taken full advantage of new technologies, new ways of working, flexible approaches by judges, support staff and members of the public to ensure that its work has continued – in some cases more successfully than before Covid 19 struck.

In the latest edition of Tribunals Journal, which was published towards the end of March 2021, gives a first hand account, by different tribunal heads, of how they have coped with Covid over the past 12 months.

The outcome is truly impressive and shows how much can be done. Highly recommended read.

Of course, it is not yet clear how far the practices adopted over the past 12 months will continue after the pandemic has subsided. However, my view is that simply going back to the old ways of working, without careful analysis of the experience of the last 12 months, would be a seriously retrograde step.

See https://www.judiciary.uk/publications/tribunals-journal/ and click on the link for the Special Edition for 2021.

The latest edition of Tribunals

Equal Treatment Bench Book – 2021 revision

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The Equal Treatment Bench Book (ETBB) is the subject of frequent amendment. A Comprehensive revision was released in February, 2021..

The aim of the ETBB to increase judicial awareness and understanding of the different circumstances of people appearing in courts and tribunals.  It is designed to enable effective communication and suggests steps which should increase participation by all parties.

This new revision of the ETBB cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate.

There are practical tips on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.

There is new and expanded content on:

  • The impact of the COVID-19 pandemic on different groups and how to conduct remote hearings (on audio or video platforms) fairly
  • Welsh/English bilingualism and the right to speak Welsh in courts and tribunals in Wales
  • Reducing jargon and legalese
  • Assisting a litigant who has difficulty reading or writing
  • Extended guidance in relation to litigants-in-person (ie people representing themselves)
  • New entries in the disability glossary
  • Confidence in the courts of minority ethnic communities
  • Sensitivity if a witness is experiencing menopausal symptoms

Although intended primarily for use by judges in courts and tribunals, its contents deserve to be widely known appearing in a court or tribunal or with an interest in how the legal system works. It is of particular relevance to those who may be seeking a judicial appointment.

The full text of the 2021 revision is at https://www.judiciary.uk/announcements/equal-treatment-bench-book-new-edition/

Written by lwtmp

April 7, 2021 at 11:08 am

Reform of the justice system: update on progress

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Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.

Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.

Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/

This links to the principal speeches which are on YouTube.

Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history

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.

Reviewing the mandatory retirement age for judges

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The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:

  1. promotes and preserves judicial independence by avoiding individual decisions in each case (albeit with limited provision for extension which enables retired judges to continue to sit post-retirement);
  2. preserves judicial dignity by avoiding the need for individual health and capacity assessments;
  3. maintains public confidence in the capacity and health of the judiciary;
  4. supports workforce planning and allows for greater career progression/ diversity;
  5. shares opportunity between the generations by balancing the need for experienced judges to continue in office for a reasonable time against career progression opportunities for newer appointees (and thereby also promoting diversity in the judiciary).

There have, however, been practical problems associated with the policy. In particular, the recruitment picture for many judicial offices in England and Wales has changed significantly in recent years. There have been more frequent and higher volume recruitment for most types of judges while a greater proportion of recruitment exercises have resulted in shortfalls. Not all available posts have been filled. This has affected appointments all levels in the judiciary including the lay magistracy.

Additionally, life expectancy in the UK has improved since the mandatory retirement age for most judges was legislated to be 70 in 1993. Many individuals now tend to live and work for longer.

In recent years, the MRA has become a subject for debate. In November 2017 the House of Commons Constitution Committee’s Follow-up Report on Judicial Appointments gave further consideration to changing the retirement age and the Committee asked the Lord Chancellor and senior members of the judiciary to reflect on whether the current MRA of 70 continued to be appropriate given the demands on judicial resource.

In the 2018 Major Review of the Judicial Salary Structure, the Senior Salaries Review Body (SSRB) commented that some judges would stay in post for longer were the MRA raised. They also suggested that the current MRA may dissuade some people from joining the judiciary as they felt that they would be unable to serve for a sufficiently long time once appointed.

In 2019 the Justice Select Committee’s report on The Role of the Magistracy, acknowledged the proposals of the Magistrates Association to allow magistrates to sit beyond the MRA if demand could not be met by recruitment alone. However, it was noted that any such provision would require legislation.

Spurred on by these comments, the Government has now published a Consultation Paper on whether the MRA should be amended. 2 Options are identified: a rise to the age of 72; or a rise to the age of 75. In addition, the consultation also asks whether magistrates should be able to be asked to continue sitting even after retirement.

The Lord Chancellor notes that “The retirement age for most judges was last legislated for 27 years ago, and the time is now right to consider whether the age of 70 continues to achieve its objective of balancing the requirement for sufficient judicial expertise to meet the demands on our courts and tribunals whilst safeguarding improvements in judicial diversity and protecting the independence of and confidence in our judiciary.”

The Consultation opened in July 2020 and runs until mid-October 2020.

Documents on the review are at https://consult.justice.gov.uk/digital-communications/judicial-mandatory-retirement-age/

Written by lwtmp

August 24, 2020 at 4:26 pm

Equal Treatment Bench Book: revised edition

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A revised edition of the Equal Treatment Bench Book was published in March 2020. It aims to increase awareness and understanding of the different circumstances of people appearing in courts and tribunals.  It is designed to enable effective communication and suggests steps which should increase participation by all parties. (I wrote about the first edition of the revised bench book in this blog in April 2018.)

This latest edition of the Equal Treatment Bench Book cites recent evidence regarding the experiences of different communities living in Britain today. It contains practical guidance aimed at helping make the court experience more accessible for parties and witnesses who might be uncertain, fearful or feel unable to participate. It includes new and expanded sections on litigants in person, refugees, modern slavery, Islamophobia and anti-Semitism.

There are practical suggestions on communicating with those speaking English as a second language or through interpreters, communicating with people with mental disabilities, a guide to different naming systems, and latest views on acceptable terminology.

The Equal Treatment Bench Book has also issued guidance on the conduct of remote hearings.

See https://www.judiciary.uk/publications/new-edition-of-the-equal-treatment-bench-book-launched/

Written by lwtmp

August 20, 2020 at 11:40 am

Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession

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I have noted before that a number of Parliamentary Committees are examining aspects of the impact of Covid 19. The Justice Committee is in the middle of publishing a series of reports on this question. The first two of these, on Courts and on the Legal Profession have been published (30 July 2020 and 3 Aug 2020).

Both reports are, inevitably, in the nature of interim reports – given that we are still in the middle of a crisis, the outcome of which is far from clear.

The first report, on the Courts, takes up the widespread criticism that there were already considerable backlogs and unacceptable delays in the criminal justice system which have been exacerbated by the arrival of Covid 19.

The Committee notes that measures being put in place to improve the performance of the Crown Courts include a possible increase in the number of sitting days and the opening of the (temporary) Nightingale Courts – specially adapted spaces in which criminal trials can be dealt with.

As regards Magistrates’ Courts,  the Committee found that the end of May 2020, there were 416,600 outstanding cases in the magistrates’ courts, which is the highest backlog in recent years. (The backlog previously peaked at 327,000 outstanding cases in 2015.) By mid-June, the figure was even higher. HMCTS has promised a ‘recovery plan’; the Committee states that it looks forward to seeing it.

By contrast with the criminal justice system, the civil, administrative and family systems have fared relatively better. Much of this has been the result of the ability of the courts and tribunals service to move hearings online. The Committee repeats concerns raised elsewhere, for example about enabling those who find it hard to use IT to participate, and that some types of family dispute are hard to deal with online.

The Committee stresses the importance of HMCTS undertaking proper evaluations of the impact of these new procedures on users of the system. It also emphasises that changes in practice arising out of the need to respond to the pandemic should not be adopted on a permanent basis, without more evaluation and consultation.

The Justice Committee report on the impact on the legal profession is not as general as its title might suggest. It focusses primarily on the impact on legal aid practitioners and other advice agencies, arguing that they continue to need financial support if the provision of services – particularly in criminal cases – is not to be lost.

The Committee’s report on the impact of Covid 19 on the Courts is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/519/51905.htm

Their report on the impact of the pandemic on the legal profession is at https://publications.parliament.uk/pa/cm5801/cmselect/cmjust/520/52003.htm