Martin Partington: Spotlight on the Justice System

Two recent news items have considered the use of mediation as a form of Alternative Dispute resolution. In the first, Jeremy Tagg an official in the Ministry of Justice, was presented with the Lord Slynn Mediation Prize for leading a drive to see more disputes settled out of court.

He was picked as winner for his role in the development of both the National Mediation Helpline (NMH) and the HMCS Small Claims Mediation Services (SCMS).

The SCMS has conducted more than 10,000 mediations in each of the past two years and continues to receive exceptionally high levels of customer satisfaction – 98 per cent of users say they are satisfied or very satisfied with the professionalism and helpfulness of the mediators and 95 per cent say they would use the service again

The second relates to statements recently made on the Today programme by Jonathan Djangoly, Justice Minister, urging greater use of mediation in Family disputes. Some family practitioners might take issue with his assertion that family lawyers are not sufficiently aware of mediation to resolve family disputes.

Nevertheless, it is still the case that there is a lack of awareness of the potential of mediation to resolve disputes and an assumption (at least by lawyers) that it is being promoted simply to reduce costs; there is considerable evidence, however, that mediation – when properly used – promotes better outcomes for parties.

Further details on both announcements can be found on the Ministry of Justice website

Although the results of the Government’s Comprehensive Spending Review are not officially published until 20 October 2010, the widely publicized leaks of the quangos that are likely to be axed suggest there could be some significant change in the legal landscape.

Many of the bodies considered in my book are under threat: they include the Administrative Justice and Tribunals Council, the Civil Justice Council, the Family Justice Council, the Legal Services Commission, many of the Boards that look after local courts, a number of tribunals – even the future of the Law Commission is, according to reports, not secure.

For the list as published in the Daily Telegraph see: http://www.telegraph.co.uk/news/newstopics/politics/8021780/Quango-cuts-full-list-of-bodies-under-review.html

In April 2010, I noted the statement of the then Labour Lord Chancellor that he intended to merge the Court service and the Tribunal service. This programme, the Courts and Tribunals Integration Project, is – under the new Government – developing rapidly. On September 15th, the Conservative Lord Chancellor  announced that he hopes the new integrated structure will start to operate in April 2011.

This will have profound implications for the judiciary who work in both the courts and the tribunals. While it may well enable those who manage court business to use judicial manpower more flexibly, the merged framework may well result in the loss some of the well recognised advantages of tribunals, namely their informality of procedure, ‘the enabling role’ and similar attributes.

I have argued elsewhere that courts have much to learn from tribunals, in particular how to handle litigants in person. However, the ignorance of most court judiciary about the work and ethos of the tribunal judiciary will mean that, without strong and enlightened judicial leadership, such lessons are unlikely to be learned.

The Lord Chancellor’s statement is at http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100916/wmstext/100916m0001.htm#10091614000227

The Coalition Government has developed the concept of the ‘structural reform’ plan as the key tool for making government departments accountable for the implementation of the reforms set out in the Coalition Agreement. They also set the context within which cuts to public expenditure are to be made. In the context of the English Legal System, those most relevant are those published by the Ministry of Justice and the Home Office.
The priorities of the Ministry of Justice are:
1.Reform of sentencing and penalties, ensuring that the justice system protects the public and reduces reoffending by introducing more effective sentencing policies and considering the use of restorative justice for adult and youth crimes
2.Rehabilitation revolution through the development of an offender management system that harnesses the innovation of the private and voluntary sectors, including options for using payment by results, to cut reoffending
3. Courts and legal aid with reform of the legal aid system to make it work more efficiently, whilst protecting the most vulnerable members of society; and developing court reforms to determine how disputes should be resolved, based on principles of transparency, decentralisation and accountability
4. Reform of the prison estate by reviewing the prison estate’s contribution to rehabilitation and reducing reoffending, developing a sustainable and cost-effective prison capacity strategy as part of the Spending Review
5. Civil liberties with a full programme of measures to reverse the erosion of civil liberties and to roll back state intrusion.
The Home Office’s plan also sets out its top five departmental priorities, which are to:
* enable the police and local communities to tackle crime and antisocial behaviour
* increase the accountability of the police to citizens
* secure our borders and control immigration
* protect people’s freedoms and civil liberties
* protect our citizens from terrorism.
Both of these plans were published on 13 July 2010

The newly appointed Secretary of State for Justice, Ken Clarke, has delivered an important speech which gives some clear hints at how justice policy is going to shape up in the coming months. The widely reported feature of the speech related to sentencing policy and Mr Clarke’s desire to prevent the prison population growing even more than it has done in recent years. But the speech contains equally clear hints that there are likely to be significant other developments as well. Three issues are singled out for attention: major restructuring of the court estate, with large numbers of court closures likely; further emphasis on reform of family procedure, with more diversion of cases from court (see also Mavis Maclean podcast); and more change to legal aid. There is little detail in the speech; this will begin to emerge in the autumn. But the speech is worth reading for what is likely to be announced in coming months.
The full speech may be read at http://www.justice.gov.uk/sp300610a.htm

The Queen’s Speech – outlining the priorities of the new Government – does not contain much that relates directly to the issues considered in Introduction to the English Legal System. However, the economic constraints which are going to be imposed by the Government will clearly impact on the legal system. The resources available for the courts, legal aid, administrative justice etc will all be under considerable scrutiny. The pressure to do things more cheaply will be overwhelming.
In the list of Bills announced: The Police Reform and Social Responsibility Bill may change the ways in which the police are organised; the Freedom (Great Repeal) Bill may impact on issues relating to criminal justice; the Parliamentary Reform Bill may lead to changes in parliamentary and election procedures. The Queen’s Speech also mentions other work that the Government intends to take forward, including House of Lords reform, and the funding of political parties.
These issues will be considered further here, as more details become available. For more information about the Queen’s Speech, see: http://www.number10.gov.uk/news/latest-news/2010/05/queens-speech-2010-3-50297

Following the General Election, Kenneth Clarke has been appointed Lord Chancellor and Secretary of State for Justice. He is a political veteran who held high Ministerial office in the Thatcher and Major Government in the 1980s and 1990s. Always outspoken, we can anticipate that the legal system and the legal profession will continue to undergo significant change in the coming years. His junior ministerial colleagues are: Tom McNally, Nick Herbert, Crispin Blunt and Jonathan Djanogly. For a summary of their responsibilities, see: http://www.justice.gov.uk/news/newsrealease200510a.htm

Another major institutional development in the English Legal System, that was announced before Parliament rose for the General Election, is the decision to turn the Legal Services Commission – currently responsible for the delivery of the community legal service and the criminal defence service – into an Executive Agency within the Ministry of Justice.

The precise timing of these changes is not yet clear but will  start to emerge after the new Government takes office after the General Election. There will be a need for new legislation to complete this process, and when that goes to Parliament obviously depends on other Government priorities.

An indication of what will happen is in the attached press announcement: http://www.justice.gov.uk/news/newsrelease030310d.htm