Martin Partington: Spotlight on the Justice System

One of the first new Bills to be introduced into Parliament, following the Queens Speech, is the Crime and Courts Bill. In relation to judicial appointments it includes measures to:

• Have an independent lay person as chair of the selection panels for both the Lord Chief Justice and President of the UK Supreme Court, rather than a judge
• Increase Judicial Appointments Commission (JAC) involvement in the selection and appointment of the judges who are authorised to sit as Deputy High Court Judges
• Provide the Lord Chancellor with an increased and more effective role in appointing the most senior judges – through the use of pre-selection consultation in appointments to the Court of Appeal and Heads of Division and sitting on the selection commission for the appointment of the Lord Chief Justice and President of the UK Supreme Court
• Reduce the role of the Lord Chancellor in the appointment of less senior judges, by transferring his powers for judicial appointments below the High Court and Court of Appeal to the Lord Chief Justice
• Introduce flexible deployment so judges can move between working in the courts and tribunals systems, to help judicial career development. (This was seen as a key step in the report published by the Advisory Panel on Judicial Diversity.)

Obviously these changes will not come into effect until the Bill has become law. Developments will be jept under review here.

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed 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).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

The Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) has after a long passage through Parliament finally received the Royal Assent and is now an Act of Parliament.

This means that changes to the scope, eligibility and other aspects of the legal aid scheme – many of which have been outlined in earlier comments in this blog – are now law. The Legal Services Commission’s website notes that these reforms are due to be implemented on 1 April 2013.

The Act also means that a new Agency will be created. The LSC will be replaced by the Legal Aid Agency, which will be an Executive Agency of the Ministry of Justice. The Legal Aid Agency will also start to operate formally on 1 April 2013.

Independence of legal decision-making is to be preserved with the creation of a Director of Legal Aid Casework. The Director of Legal Aid Casework will have independence from the Lord Chancellor in applying directions and guidance to individual funding decisions. This is protected under the new statutory framework.

As Chief Executive Designate of the new Agency, it is expected that Matthew Coats will also be appointed the Director of Legal Aid Casework.

According to the Ministry of Justice Press release:

“The Act:

• Ensures that legal aid is available for those who require formal legal advice and assistance and provides access to a range of alternative sources of dispute resolution in appropriate cases

• Increases mediation funding to £25 million a year and provide an additional £20 million a year for the next three years for third sector advice and assistance organisations

• Reforms civil litigation procedures by dealing with disproportionate legal costs, and by capping the amount that lawyers can take in success fees

• Makes referral fees illegal in personal injury cases.

It remains to be seen whether the outcomes indicated above are achieved in practice. Certainly there is widespread concern throughout the legal world that great damage will be done to the provision of legal advice and assistance to the poor.

Further news will be noted in these columns over the coming months.

The demise of the Administrative Justice and Tribunals Council (AJTC) has been sought by the Government for some time. It is one of the bodies destined for abolition in the ‘bonfire of the quangos’ – which has been the subject of a number of comments in the blog. But the AJTC has strong supporters, particularly in the House of Lords. And before the final rites are completed – the making of an order under the Public Bodies Act 2011 – the House of Commons Public Administration Select Committee decided to take one final look at the arguments for and against abolition.
Their report, published on 8 March 2012, regards the arguments used by Government in favour of abolition as pretty thin. As their press release notes: “The Committee found that the Government’s rationale for winding up the AJTC was questionable, and that the Ministry of Justice may not have either the resources or the expertise to take on its functions.” It also thought the claimed financial savings were unlikely to materialise.
The Committee also noted that the Government itself had proposed “to establish a “group of administrative justice experts and key stakeholders—particularly those who represent the views of users” to “provide a valuable forum for sharing information and best practice, and […] to test policy ideas”. We understand that this user group is likely to include some former members of the AJTC.” The Committee recommends that the Government provide further information on its proposals for the membership and operation of this group of experts and key stakeholders.
To me this looks to have the potential for the creation of a new body with arguably some of the AJTC functions. Perhaps the main difference will be that members of the new body will not be paid!
In my view the extent of the terrain of administrative justice is so great that sensible and coherent policy of benefit to the citizen simply cannot be developed in one Government department without support from across government and input from researchers able to view what is going on in other countries.
To read the report of the Select Committee, go to http://www.publications.parliament.uk/pa/cm201012/cmselect/cmpubadm/1621/162102.htm

NB I should declare an interest; I was appointed specialist adviser to the Committee for this report.

The Department for Business, Innovation and Skills is seeking views from UK stakeholders on recent proposals from the European Commission on consumer alternative dispute resolution. In summary, the Commission argue that all EU consumers should be able to solve their problems without going to court, regardless of the kind of product or service that the contractual dispute is about and regardless of where they bought it in the European Single Market.

In addition, for consumers shopping online and from another EU country, the Commission want to create an EU-wide single online platform which will allow contractual disputes to be solved entirely online and within 30 days.

As the proposals are likely to impact UK consumers, businesses and organisations that currently provide alternative dispute resolution services, the Department is particularly anxious to receive views on the likely scale of these impacts. Views received will help form the UK’s negotiating position.

The consultation has been running since November 2011, and closes at the end of January 2012.

The full consultation can be found at http://www.bis.gov.uk/Consultations/call-for-evidence-eu-proposals-dispute-resolution?cat=open

Just before Christmas 2011, the Government published a Consultation Paper proposing that those wanting to use the Employment Tribunal should be required to pay a fee to do so; at present access is free.

The Government argues that it has to reduce the £84 million cost currently borne by the taxpayer. Fees are an obvious way to do this. At the same time, it is suggested that fees may deter some people from using Employment Tribunals, thereby reducing the case load, which has expanded rapidly in recent years.

The consultation  puts forward two options for consideration:

• Option 1: an initial fee of between £150-£250 for a claimant to begin a claim, with an additional fee of between £250-£1250 if the claim goes to a hearing, with no limit to the maximum award; or
• Option 2: a single fee of between £200-£600 – but this would limit the maximum award to £30,000 – with the option of an additional fee of £1,750 for those who seek awards above this amount.

In both options the tribunal would be given the power to order the unsuccessful party to reimburse fees paid by the successful party.

The Government, consistently with its policy in the civil justice arena of encouraging out of court settlement, states that it will continue to fund the cost of  the Conciliation Service ACAS, which helps people in employment disputes reach agreement without the need for legal proceedings, and is free to users.

The Government also argues that introducing fees will bring employment tribunals into line with civil courts where claimants already pay a fee to use the service. The paper states that, just like in civil courts, the Government will also continue to fund a system of fee waivers for those who cannot afford to pay.

Although many may think that these proposals are sensible, they mark another step in the development of the tribunal system, which until recently has been more or less free to users. There have been recent moves to introduce fees in immigration and asylum hearings. The development in relation to employment tribunals could lead to similar moves in other contexts as well, for example land and property disputes or tax disputes that are dealt with by tribunals.

My view is that, while politically it may make sense for each of these initiatives to occur individually, there should be a much more open discussion about the implications of a general policy to make tribunals more like courts through the incremental imposition of fees. A discussion of this broad principle should not be allowed to go by default.

The present consultation runs until March 2012; the Government has announced that no change is likely before 2013/14.

To read the Consultation, go to http://www.justice.gov.uk/consultations/et-fee-charging-regime-cp22-2011.htm

In 2009, the Ministry of Justice started to use communication technologies to create, initially on an experimental basis, virtual courts. They enable a defendant, charged in a police station, to have their first hearing held over secure video link from the magistrates’ court. This can happen within hours of being charged and if the defendant pleads guilty, the court can often sentence on the same day.

The same equipment allows police witnesses to give evidence in court via the police station. This initiative, known as ‘Live Links’, began in July 2011. It allows for the police to free up time to carry out frontline duties rather than travelling to and from court.

Defence lawyers are concerned that the initiatives created problems. In particular, they aregue that the police still need to address fully the issue of how officers exhibit live evidence, such as their notebooks, when they are physically not present.

However, the Government is so convinced of the value of these two related initiatives that the announced at the end of November 2011 that by spring 2012, the entire criminal justice system is required to go digital, with secure electronic transfer of case files between the police, prosecutors and courts becoming the norm rather than the exception.

For more details see: http://www.justice.gov.uk/news/press-releases/moj/newsrelease281111a.htm