Martin Partington: Spotlight on the Justice System

On 21 November, 2011, the Lord Chancellor launched a consultation on changes to the ways in which judicial appointments are made. The consultation deals with four main issues:

1. How to achieve the proper balance between executive, judicial and independent responsibilities in the appointment of judges;

2. How to improve clarity, transparency and openness in the appointment process;

3. How to create a more diverse  judiciary that is reflective of society and appointed on merit; and

4. How to deliver speed and quality of service to applicants, the courts and tribunals and value for money to the taxpayer.

In relation to 1, the paper suggests that there should be some redrawing of the responsibilities of Lord Chancellor and Lord Chief Justice, with more decision making power going to the latter.

In relation to 2, there are proposals for opening up more of the most senior judicial positions to open competition.

In relation to 4, detailed changes to the size of the Commission and its procedures are suggested.

As regards the diversity issues, to which the Lord Chancellor seems particularly committed, a number of quite radical changes are suggested. For example, while part-time working is possible for the lower judiciary, this is not currently an option for judges in the High Court and above; the paper asks whether this should change.  Another question asks whether the JAC should be able to apply the Equality Act 2010’s positive action provisions when two candidates are essentially indistinguishable.

The consultation ends in February 2012.

The paper is at http://www.justice.gov.uk/downloads/consultations/judicial-appointments-consultation-1911.pdf

In (probably) its  dying days, the Administrative Justice and Tribunals Council – earmarked by the Coalition Government for abolition – has decided to go down, all guns blazing. In its latest report, Securing Fairness and Redress: Administrative Justice at Risk?, published on 21 Oct 2011,  it gives a stark warning that principles of fairness and the right to challenge decisions perceived not to be fair or lawful – which have been a hallmark of public administration for decades – are currently under serious threat.

In the words of the report:  ‘ In an age where so much emphasis is rightly placed on empowering people, on improving public services and on upholding the Rule of Law, it is astonishing that there is so little focus on the system for ensuring that the State gets it right in its dealings with individuals and families.’ Complaining that administrative justice is the ‘Cinderella service’ of the justice system, the Council warns that the current programme of austerity will reduce the quality of much administrative decision-taking, while at the same time make it much harder for those adversely affected by bad decisions to challenge them.

This latest report – which presents an overview of the current position – notes that three times as many cases are decided by tribunals each year as go before the criminal courts; yet all the focus of policy making is on the criminal justice system. This despite the fact that the administrative justice system deals with key questions affecting the individual – liberty, employment, housing and even, in asylum cases, with matters of life and death.

The Council acknowledges that there is no reason why new ways of deciding cases should not be tried – cutting public expenditure can be an opportunity for developing new and possibly better procedures. But it argues that at just the time when the Council’s expertise would be most useful, its voice is going to be silenced under the quango cutting programme.

The report sets out an agenda for long-term strategic change  the administrative justice system:

• better and more stable laws and regulations, especially in the areas of welfare benefits and immigration;
• a ‘Right First Time’ culture in government decision-making;
• proper access to help, advice and representation for citizens pursuing redress against government decisions;
• further reforms to ensure coherent access to administrative justice across the whole of the UK;
• new and proportionate models for resolving disputes faster and in more user-friendly ways.

The full text of their excellent report is at http://www.justice.gov.uk/ajtc/docs/AJTC_at_risk_%2810.11%29_web.pdf

Unlike the situation in many other countries, the televising of court proceedings has not been a central feature of the English Legal System.

There are signs of significant change on the horizon.

First, the Supreme Court has already decided not only to let television companies make documentary programmes about its work (see this blog Feb 2011) but also to enable Sky TV viewers to see full broadcasts of its proceedings. For further details see http://news.sky.com/home/supreme-court.

Second, Justice Minister Ken Clarke has announced that limited televising of proceedings will be allowed. Initially this will be limited to the Court of Appeal where filming will be of judges’ summary remarks only;  victims, witnesses, offenders and jurors will not be filmed. He has stated that this may be extended to the Crown Court at a later date.

This second step will not take place overnight, however. Legislative change is required to repeal  Section 41 of the Criminal Justice Act 1925 and Section 9 of the Contempt of Court Act 1981, which currently forbid the broadcasting of court proceedings. See further http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease060911a.htm.

One consequence of these developments may be that members of the public who think that most cases are heard by courts will be reinforced in this view, whereas readers of the book will know that in every area of the law, save perhaps family law, great number of issues are disposed of outside court proceedings.

Nonetheless, I welcome this development and suspect that in a year or two people will wonder why we took so long to reach this position.

The Legal Aid, Sentencing and punishment of offenders Bill 2011 is the big one, certainly so far as the legal system is concerned. It is a complex measure, attempting to achieve three quite distinct policy objectives. Underpinning much of it is the Government’s desire to cut public expenditure.

This is seen most clearly in Part 1 which deals with legal aid. The long awaited abolition of the Legal Services Commission is contained in the Bill, together with provision of the appointment of a Director of Legal Aid who will head up a new agency within the Ministry of Justice. In practical terms, it is the changes (i.e. cuts) to civil legal aid that are likely to have the most significant impact on the ground. The Bill gives legislative effect to the Government’s proposals to make fundamental changes to legal aid – which will take a lot of issues currently in scope of the legal aid scheme out of the scope of legal aid, will increase the charges paid by members of the public for getting legal aid assistance and reduce the sums paid to lawyers who provide legal aid services.

Arguments that have been made by many – not just lawyers – about the impact these changes will have on access to justice have been met by the Government’s counter argument that the UK spends too much on legal aid – far more than most other countries. It has to be said, however, that by comparison with the proposals for reform of sentencing (see below) these changes have not actually received much attention in the mass media.

Details of the proposals for change can be found at http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf.

Part 2 of the Bill deals with recommendations of Lord Justice Jackson about making changes to the current system of ‘no-win-no-fee’ Conditional Fee Agreement cases, to limit the amounts that lawyers can charge by way of success fees.

The Government argues: [CFAs] have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants. It cannot be right that, regardless of the extreme weakness of a claim, the sensible thing for the defendant to do is to settle, and get out before the legal costs start running up. This is precisely what has happened and it is one of the worst instances of this country’s compensation culture…

[T]he Government believes that the right way forward is to abolish the recoverability of CFA success fees and ATE insurance premiums.

The Bill provides for these changes: for more detail see also http://www.official-documents.gov.uk/document/cm80/8041/8041.pdf.

The final part of the Bill deals with proposals for reforming sentencing. These issues were debated heavily in the press, with the Justice Secretary facing a lot of criticism that he was being ‘soft on crime’ – wanting to keep people out of prison to save money. The quite respectable argument – which at the least demands a careful hearing – that more might be done to turn people away from crime if they were not in prison was a subtlety that got lost in much of the mass media.

In the light of the decision not to proceed with the idea for giving those pleading guilty to charges a higher discount from their sentence than they can currently get, the Bill’s proposals are more modest than were originally envisaged by the Government when it published its Consultation Paper on the reform of Sentencing in November 2010.

The Bill is currently in the Committee stage, which will end in mid-October 2011. I estimate that the Bill will pass into law early in 2012.

Details on all three components of the Bill will be considered further here and in the book in due course.

The Government’s plans for a National Crime Agency, to be established by April 2013, have been taken a stage further with the publication by the Home Office of the paper ‘National Crime Agency – a plan for the creation of a national crime-fighting capability’.

The Paper state: ‘Sharing intelligence, capabilities, expertise and assets, the NCA will comprise distinct Commands for Organised Crime, Border Policing, Economic Crime, and the Child Exploitation and Online Protection Centre. Each Command will be led by a senior experienced individual and will manage its own priorities and risks.’

Full details of the plans, as they currently stand, are published at http://www.homeoffice.gov.uk/publications/crime/nca-creation-plan?view=Binary

Two recent announcements from the Ministry of Justice have been concerned with the interaction between young people and the law.

The first, called the ‘London Justice Programme’ is the latest initiative of the National Centre for Citizenship and the Law. Though based in Nottingham, the Centre has been seeking to develop national initiatives, of which the London Justice Programme is the latest development. At present there is not a lot of detail on what the programme involves, but it does provide opportunities for children at school to visit courts, hold mock trials there, and more generally become more aware of the legal system. The announcement at http://www.justice.gov.uk/news/features/feature170511a.htm provides a link to a video which gives the flavour of what is on offer.

There has also been an announcement about a new DVD – made by the Halton and Warrington Youth Offending Team (which comes under the Youth Justice Board) – which seeks to explain how restorative justice works and the demands that restorative justice measures make on those subject to them. The press announcement suggests that the DVD will be available from the YJB, but my researches do not currently indicate how it may be viewed. But it could be a useful source of information about restorative justice, challenging the perception that it is a ‘soft option’. For the press announcement, see http://www.justice.gov.uk/news/press-releases/yjb/yjb-news-release-20may2011a.htm

One of the trends in the practice of law noted in the book is the increased globalisation of the provision of legal services. Two recent Government announcements indicate just how important this work is, not just to our legal system but to the overall economy. They also indicate how competitive the legal services market is becoming in a globalised world. If the UK does not offer what global businesses want, business will go elsewhere.

The Government’s Action Plan ‘Promoting the UK’s Legal Services Sector’ was published in May 2011. It is available at http://www.justice.gov.uk/downloads/publications/corporate-reports/MoJ/legal-services-action-plan.pdf.
It sets out objectives which the Government will be seeking to support over the next few years, which will be incorporated in the upcoming MoJ Business Plan.
The second announcement is that a new ‘state of the art’ court building for dealing with commercial disputes – the Rolls Building – is scheduled to open in the Autumn 2011. A note on the progress of this initiative, for which the judiciary and commercial lawyers have long been pressing, was made at the end of May 2011. See http://www.justice.gov.uk/news/features/feature310511a.htm