Martin Partington: Spotlight on the Justice System

April 1 2011 sees two important changes to the infrastructure of the English Legal System.
The merger of the administrative functions of Her Majesty’s Court Service and the Tribunals Service is completed today. The new organisation will be known as Her Majesty’s Courts and Tribunals Service (HMCTS). As I argue in the book, the great challenge will be to ensure that the distinctive ethos of the tribunals service – its procedural flexibility, its willingness to be more inquisitorial than courts, its ability to specialise – are not lost.
While this change was anticipated for some months, less publicised is the fact that, also from April 1 2011, the Judicial Studies Board no longer exists. This does not mean that judicial training is being abandoned. Far from it. The decision has been taken to merge the resources available for training judges in the courts with those available for training tribunal judges. These activities will now be taken forward by a new (virtual) Judicial College.

The Government has just announced the appointment of an Independent Commission to examine the case for the adoption of a UK Bill of Rights – which would effectively replace the Human Rights Act 1998.

The Human Rights legislation, and the role of the Supreme Court in interpreting the scope Convention rights, have been getting a hostile press and comment in Parliament recently. Two issues have hit the headlines: the question of whether prisoners should in some circumstances have the right to vote, and whether those registered on the sex offenders list should ever have the right to challenge a decision that they be on the list. Debate on both these issues seems to have been characterised by a fair degree of ignorance about what the Court was actually ruling. Their judgments were no way as apocalyptic as their critics were claiming. (By contrast, their judgements on the ability of local authority and social housing providers effectively to manage their estates – which are likely to have considerable financial implications for social landlords – have hardly been considered at all.)

In this context, the establishment of the Commission – with the clear instruction to build on the current position, rather than row back from it – is an important development. They will not report until end 2012, but I will keep an eye on developments here.

The terms of reference of the Commission are:

To investigate the creation of a UK Bill of Rights that incorporates and builds on all our obligations under the European Convention on Human Rights, ensures that these rights continue to be enshrined in UK law, and protects and extend our liberties.

To examine the operation and implementation of these obligations, and consider ways to promote a better understanding of the true scope of these obligations and liberties.

To provide advice to the Government on the ongoing Interlaken process  (a separate process being run within the Council of Europe) to reform the Strasbourg court ahead of and following the UK’s Chairmanship of the Council of Europe.

To consult, including with the public, judiciary and devolved administrations and legislatures, and aim to report no later than by the end of 2012.

The members of the Commission can be found at
http://www.justice.gov.uk/news/newsrelease180311a.htm

The Government has just published the first Annual Report giving details of its responses to Law Commission reports. These are made under the Law Commissions Act 2009.

Having been a Law Commissioner I am particularly interested in those reports for which I was responsible. At least 2 – Publication of Local Authority Reports and Housing: Proportionate Dispute Resolution – are not mentioned at all. And a key feature of our work on Housing – that the law affecting all landlords, whether private or public sector, should be unified – is also wholly ignored.

There are an awful lot of other reports which are still in the pending trays in Government. Perhaps it is understandable that at the beginning of a new Parliament with a new Government wanting to deliver lots of new initiatives, detailed matters of law reform are lower on the political agenda.

This will need careful scrutiny to see whether the Law Commission’s impact is what it should be – given the resources devoted to its work.

The report is available at http://www.justice.gov.uk/publications/report-law-commission-proposals-jan-2011.htm

Welcome to 2011 – the year when many of the policies outlined by the Coalition Government start to take shape. Among developments to watch will be:
1 Impact of the Legal Services Act 2007 on shaping the legal profession and how they deliver legal services;
2 Sentencing policy – will the plans outlined by the Lord Chancellor survive political pressures within the Government?
3 Legal aid – what will remain of legal aid, particularly civil legal aid and how will legal services to the poor actually be delivered?
I will try to keep you up to date in the blog.
Meantime, have a very happy New Year!

The idea of closing number of court buildings – to ‘rationalise the estate’ – have been around for some time. The Coalition Government has taken advantage of the need to cut public expenditure as the basis for ordering the closure of a significant number of court buildings that received relative little use. Nearly 150 of the 530 buildings currently used by the Court Service will be closed.
Of course, there will be much local sadness at the loss of some of these buildings. But it is hard to argue that under-used building should be retained.
Nevertheless, it is important that this closure programme does not lead to increase difficulty in accessing court buildings. Greater use of modern communication technologies should do much to prevent major access problems.

The press announcement can be found at http://www.justice.gov.uk/news/newsrelease141210a.htm

On Tuesday 16 November the Faculty of Laws at University College London launched a new Judicial Institute. The opening event  was a panel discussion on ‘The Future of Judging’. At a time when the judiciary is at an important crossroads, this event explored the changing roles of judges and the challenges facing the modern judiciary as a result of developments in politics and society, science and technology, law, litigation and globalisation.

This is an extremely important research initiative that should throw considerable light on a part of the legal system that has not hitherto been the subject of a great deal of empirical research.

At last some detailed policy proposals which will directly impact on the English Legal system are starting to emerge from the Coalition Government. The first, considered here, is a consultation paper on the reform of legal aid. This is accompanied by another consultation paper on costs in civil cases.

The legal aid consultation is actually quite dense and difficult to summarise. The following has been adapted from the MoJ Press Release. It should be noted that, because of the need for legislation to make many of the changes, they are unlikely to come into effect before April 2012. Further, policy on legal aid always attracts detailed attention from lobby groups – in particular the lawyers and the advice sector. It is likely that there will be changes of detail before the final package is introduced. The MoJ estimates savings of around £350m if the changes were introduced without modification. The main changes proposed are:

• Criminal Legal Aid. Retaining legal aid for those criminal cases where it is currently available, in order to ensure fair trials for those accused of more serious criminal offences can access the representation required to provide a fair trial.

• But: Changes will be made to the way that lawyers are paid in criminal cases in order to promote an efficient system of justice and to ensure that the taxpayer is receiving the best possible value for money. The intention is to move towards a competitive market to replace the current system of administratively set fee rates.  In the meantime, there is a series of proposals designed to promote swift and efficient justice as well as to achieve savings.  These include proposals to pay the same fee in respect of a guilty plea in the Crown Court regardless of the stage at which the plea is entered.  In Crown Court cases that could realistically have been dealt with in the magistrates’ courts, it is proposed to pay a single fixed fee for a guilty plea based on fee rates in the magistrates’ court.  This complements other reforms to the justice system designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and the justice system significant but avoidable costs; and

• To contain the growth in costs of the most expensive (Very High Cost Criminal Cases – VHCCCs) we propose to bring the arrangements for solicitors in VHCCCs into line with those the last Government introduced for advocates. This will mean that more of these cases will be paid within a graduated fee scheme where costs are more easily controlled.

• Civil Legal Aid. Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.  For example, legal aid will be retained for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases.  It will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage.  It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.

• But: Clear choices are proposed in order to introduce a more targeted scheme which directs limited resources to serious issues in civil and family cases which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.
• Thus, some types of cases will no longer routinely qualify for legal aid funding.
  • This  include private family law cases, for example, divorce and child contact, where long-drawn out and acrimonious cases going through the courts can often have a negative impact on the well-being of any children and not necessarily achieve the most effective result.  Funding for cases where domestic violence is involved will, however, continue to receive funding.  And funding will also continue to be provided for mediation as a better alternative to family disputes going to court in most cases.
  • Other civil cases which will no longer routinely qualify for legal aid funding include clinical negligence, where in many cases alternative sources of funding are available, such as “no win no fee” arrangements (Conditional Fee Agreements).
  • Other issues proposed for removal from the scope of the legal aid scheme include debt, education, employment, housing, immigration and welfare benefits (except where there is a risk to anyone’s safety or liberty or a risk of homelessness), where in many cases the issues at stake are not necessarily of a legal nature but require other forms of expert advice to resolve.

• Legal aid funding may still exceptionally be provided for individual cases through a new funding scheme for excluded cases, generally only where it is necessary to meet our domestic and international legal obligations, for example, in a particularly complex clinical negligence case involving a disabled claimant who cannot represent themselves where access to the court could not otherwise be secured.

• In addition, changes will be made to means testing for non-criminal legal aid.  These seek to ensure that those who, on the basis of their disposable capital or income, can pay or contribute towards the costs of their case should be asked to do so.  The proposals include ensuring that all civil legal aid applicants undergo an assessment of their available capital, including those on benefits.  Greater account will also be taken in future of equity in people’s homes when assessing their capital means.  A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees.

• In order to strike a better balance between using tax payers money efficiently, and ensuring that people can access legal aided services where necessary, fees paid in civil and family cases will be reduced by 10% across the board.  It is also proposed to extend lower legal aid ‘risk rates’ in civil cases where costs are likely to be paid by the opponent, pending the introduction of competition once any proposed changes to the scope of civil and family legal aid have bedded in.   Similar levels of reductions are envisaged in experts’ fees to exert greater control over costs.

• Legal advice: Telephone services will be extended to help people find the easiest and most effective ways to resolve problems.

• The paper also consults on suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements.  These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients’ money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made.
• Views are also sought on how to make the administration of legal aid more efficient and less bureaucratic for solicitors and barristers doing legal aid work.

So – the proposals combine suggestions for taking cases out of the legal aid altogether, getting clients to pay more, and reducing the money lawyers receive.

It is worth noting that the effect of the proposals relating to legal aid in family cases appear rather to preempt the conclusions that the current inquiry into the family justice system might come up with when in reports in 2011.

The proposals for devising supplementary sources of funds for legal aid could result in some further significant changes. What is not clear from the paper is the extent to which new models for the delivery of legal aid, which have been promoted by the Legal Services Commission, will be sustained.

The consultation paper is at http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

The consultation runs until 14 February 2011

The main review of public bodies (see ‘Bonfire of the Quangos’) left open the question whether the judicial appointments system put in place by the former Labour Government would be retained. The Lord Chancellor announced on 10 November 2010 that it would be kept, though it would be expected to make savings. Further proposals will be announced in early 2011 on how the whole process of judicial appointment may be sharpened up.

So, the Coalition Government has now published its decisions on what public bodies are to be kept, what are to go. Here I comment on the decisions through the specific lens of the English Legal System.

The two highest profile casualties of the cull are the Youth Justice Board and the Administrative Justice and Tribunals Council.

The YJB did have a bit of a reputation for clashing with Government on issues relating to young offenders and how they should be treated in the criminal justice system; presumably  policy will now be taken into the Ministry of Justice. The justification is that this change is wrapped up in a wider review of criminal justice. My view is that the independent voice of the Board will be missed and that Government will still need expert external input into policy making. We shall see.

The Administrative Justice and Tribunals Council, created out of the former Council on Tribunals, had a broad remit to keep administrative justice under review. Given the importance of getting the relationship between the citizen and the state right, ensuring that government operates according to principles of good administration is vital. The Council played a key role in ensuring that different agencies communicated with each other. This facilitative role was particularly important and I think it will be missed.

For me, the most intriguing announcement is that  the whole edifice of independent judicial appointments, created by the previous government, is stated to be under consideration. The new process has not been welcomed by many lawyers but has made judicial appointments more transparent – need to watch this space on this one!

Similarly the future of the Office of the Children’s Commissioner is also under review – an announcement is expected in November 2010.

The public bodies review has usefully tidied up a number of tribunals and brought them into the Tribunals Service. The Residential Property Tribunal Service and the Valuation Tribunal Service, which in my view should always have been in the Tribunals Service, are now to be incorporated. A number of other tribunals are still under consideration for inclusion in the Tribunals service, including the ever popular Plant Varieties and Seeds Tribunal.

The Parole Board has been spared, but its future status and functions are still under review.

The Victims Commissioner is retained, but the Victim’s  Advisory Panel is abolished.

The published list confirms the abolition of a number of bodies which had been announced earlier: these include HM Inspectorate of Court Administration; the Legal Services Commission (not to be confused with the Legal Services Board, which is retained); the Legal Services Ombudsman; and the National Policing Improvement Agency.

On balance, my view is that the legal institutional landscape has changed less than might have been expected. There has actually been some sensible rationalization, particularly in the tribunals world. But I think that the Youth Justice and Administrative Justice worlds have been weakened by the changes.

Full details at http://www.number10.gov.uk/news/latest-news/2010/10/public-body-review-published-55604