Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 9’ Category

Seeking legal help online: the challenge of design

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In December 2020 Roger Smith, who runs the excellent Law, Technology and Access to Justice website (at https://law-tech-a2j.org/,) posted an item about an important report from Australia.

Written by Jo Szczepanska and Emma Blomkamp, and published by Justice Connect (a not-for-profit Law Charity, see https://justiceconnect.org.au/) their recently published report Seeking Legal Help Online –
Understanding the ‘missing majority’
offers a range of practical ideas on how to design self-help resources that can actually be used by those seeking help. In Smith’s words: “It puts Australian experience front and centre of global discussion of a key topic.”

The phrase ‘missing majority’ in the title refers to the fact that the majority of people will not or cannot afford to use the services of legal practitioners to assist in the resolution of disputes or other problems. However, in the words of the report “as the missing majority progressively adopts technology, there are increasing opportunities to find new models of providing cost-efficient and effective free legal assistance at scale”. The report aims to find a better understanding of the opportunities to assist the missing majority through online resources, recognising their limits as well as their potential.

The report sought to answer the following 5 questions:

  1. How do people search for legal help online? The first set of insights describes the variety and mixed results of searching techniques used by participants in this research.
  2. What is the self-help journey like? This looks at the difficulties of trying to solve problems on your own. For example legal jargon is confusing for most people who haven’t studied law; the rules and procedures of the legal system can be opaque; and the process to understand and resolve an issue can be incredibly time-consuming. Indeed the whole process can be highly stressful.
  3. How can different resources help and how are resources used? The report draws on participants’ own analyses and explanations of why they would select certain tools, when they would use them, and what combinations of resources would work best for them and their issue. Where self-help became overwhelming, participants would start looking for a professional to help them.
  4. How can resources be improved? This considered the shortcomings of existing legal resources and the behaviour exhibited by people as they try to decipher and then apply new knowledge. These insights highlight issues of access, trust, accessibility, appropriateness and usefulness.
    Unfortunately, many online legal resources remain limited in their design, simply putting online existing forms and leaflets. Some people with disabilities cannot access or use online legal resources at all because the resources have not been designed with their needs in mind. Resources often also contain overly technical and complex language.
  5. How do help-seekers define a legal problem? This part of the study draws attention to the question of how a diverse range of people who find themselves in need of legal information or assistance try to find that information. Overall, the stories from participants and examples from live searches and testing of resources highlight the differences and commonalities of searching for legal help and information online.

In the light of the findings from the empirical part of the study, the final section of the report presents a series of recommendations and design principles, offering guidelines for improving online legal self-help resources. The recommendations focus on how to involve people with lived experience of trying to use existing resources together with relevant professionals in funding, researching, designing, testing, implementing, promoting, and evaluating online self-help resources.

Suggestions in the report are tailored for a range of different target audiences: users, funders, service providers, and resource makers. They are grouped under five main headings:

  1. Invest in information design and user experience;
  2. Involve people with lived experience in making online resources
  3. Break down silos between sectors, organisations, communities, and self-help
  4. Establish communities of practice to support makers of online self-help resources
  5. Invest in consumer outreach, search engine optimisation, communications, and marketing.

This blog does not reflect the detailed ideas contained in the report. Anyone wanting to develop new online resources should read this report for its ideas about how this might be done in ways that would actually help. The scope for innovations seems almost limitless. Policy on access to justice needs to take self-help seriously.

(This entry has been adapted from the report’s Executive Summary.)

It can be downloaded at https://justiceconnect.org.au/about/digital-innovation/missing-majority-report/

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.

Independent Review of Criminal Legal Aid – announcement

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Just before Christmas, the Government made the long awaited announcement that the independent review of Criminal Legal Aid would start work in January 2021 – with a view to reporting by the end of 2021. The Chair of the Inquiry is to be Sir Christoher Bellamy, a retired judge – formerly President of the Competititon Appeal Trbunal. He will be supported by an Expert Panel, though the composition of the Panel has not yet been announced

The announcement contains a link to the terms of reference for the inquiry which set out in rather more detail than usual the aims of the inquiry and some of the issues it is required to take into account. The document states that the Criminal Legal Aid Review ‘has two main objectives’:

  1. To reform the Criminal Legal Aid fee schemes so that they:
    • fairly reflect, and pay for, work done.
    • support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce.
    • support just, efficient, and effective case progression; limit perverse incentives, and ensure value for money for the taxpayer.
    • are consistent with and, where appropriate, enable wider reforms.
    • are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies; and
    • ensure cases are dealt with by practitioners with the right skills and experience.
  2. To reform the wider Criminal Legal Aid market to ensure that the provider market:
    • responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer.
    • operates to ensure that Legal Aid services are delivered by practitioners with the right skills and experience.
    • operates to ensure the right level of Legal Aid provision and to encourage a diverse workforce.

The document also states that ‘ultimate objective of the Criminal Legal Aid System is to provide legal advice and representation to those who most need it’ and that in order to achieve this overarching objective,

“the Independent Review will seek to make recommendations that will ensure the Criminal Legal Aid System:

a. provides high quality legal advice and representation;
b. is provided through a diverse set of practitioners;
c. is appropriately funded;
d. is responsive to user needs both now and in the future;
e. contributes to the efficiency and effectiveness of the Criminal Justice System;
f. is transparent;
g. is resilient; and
h. is delivered in a way that provides value for money to the taxpayer.”

Furthermore “in order to conduct this analysis, the review will consider the following themes:

  • resilience
  • transparency
  • competition,
  • efficiency; and
  • diversity.

For criminal legal aid practitioners this is a very important moment. It is clear that the current criminal legal aid is not working as it should. The question remains whether, despite the generally positive tone of the initial press release, a substantially reformed system will ultimately be implemented. This will be an important test for both Government and the legal professions. Much will depend on the political skills of the Lord Chancellor in ensuring that the resources to reform the system are available.

The announcement is at https://www.gov.uk/government/news/independent-review-into-criminal-legal-aid-to-launch-in-january. This includes the link to the terms of reference.

Solicitors’ Qualifying Examination – starting 2021

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After many years of gestation, at the end of October 2020 the Legal Services Board gave its approval to proposals for the new Solicitors’ Qualifying Examination, due to come into force in September. It will only apply to students starting their legal studies after that date. Those currently reading law or in legal training will have 11 years to complete their route to qualification – using the existing channels.

In outline, the Solicitors Qualifying Examination (SQE) is a single, national licensing examination that all aspiring solicitors will take before qualifying. From 1 September 2021 to qualify you will need to:

  • have a degree in any subject (or equivalent qualification or work experience – for exampe through an apprenticeship);
  • pass both stages of the SQE assessment – SQE1 which focuses on legal knowledge and SQE2 on practical legal skills;
  • have two years’ qualifying work experience (which can be undertaken in up to 4 different locations and at different times); and
  • pass the SRA’s character and suitability requirements.

The SRA’s two stated objectives for the new framework are:
• greater assurance of consistent, high standards at the point of admission
• the development of new and diverse pathways to qualification, which are responsive to the changing legal services market and promote a diverse profession by removing artificial and unjustifiable barriers.

All new entrants – even those with law degrees – will have to pass both the SQE1 and SQE2. Current arrangements – whereby students who read law at university gain exemption from Part 1 of the Law Society Finals – are abolished.

The SRA will not regulate, accredit or endorse training providers or organisations. Nor will it have any role in approving, endorsing or overseeing the training courses or materials, or their quality. It merely provides a list of providers which is intended to help potential SQE candidates to find training. By encouraging competition between providers, the SRA hopes that the costs of such courses will be reduced.

SQE1 involves a test on the application of Functioning Legal Knowledge by answering two 180 question multiple choice assessments papers.

SQE2 involves assessment of practical legal skills listed as: client interviewing with linked attendance note/legal analysis; attendance note/legal analysis; advocacy; case and matter analysis; legal research and written advice; legal drafting and legal writing.

In granting its approval, the Legal Services Board recognises that this will be a new scheme that will not be entirely risk free. Thus the LSB has drawn attention to a range of issues that the SRA will need to manage carefully to realise the full benefits of the changes. The SRA has undertaken to:

  1. Monitor and evaluate the impact of the SQE and conduct an initial review within two years of implementation.
  2. Commission independent research in 2021 to investigate the underlying reasons that candidates from some protected minority groups did not perform as well as other groups in the SQE pilots. The results of the first cohort of the SQE will inform this research.
  3. Publish comprehensive guidance on qualifying work experience for candidates and firms.
  4. Continue to demonstrate openness and transparency as it implements the SQE. This includes publishing guidance for students on the different choices of SQE training available and data on performance in SQE assessments, as well as pass rates for candidates by the SQE training provider that they attended.

The hoped-for benefits for the new scheme are that:

  • costs will be less than existing routes to qualification;
  • a more diverse range of people will enter the profession;
  • those coming new to the profession will be better prepared for work as a solicitor.

What is unknown is whether law firms will recruit from those with different educational backgrounds or practical experience and therefore whether these new requirements will increase diversity in the solicitors’ profession.

Details of the scheme are at https://www.sra.org.uk/students/sqe/

The LSB decision is at https://www.legalservicesboard.org.uk/news/legal-services-board-approves-significant-changes-to-how-solicitors-qualify

Whither the Sentencing Council?

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Many Government consultation are on rather specific issues. The consultation considered here is rather different, designed to encourage some rather more blue-skies thinking about the work of the Sentencing Council.

It has been launched because 2020 marks the 10th anniversary of the establishment of the Sentencing Council for England and Wales. During that time it has produced 27 sets of definitive guidelines encompassing 145 separate guidelines that cover 227 offences and eight overarching topics.

As the accompanying press release notes: “Developing guidelines is a collaborative process; as well as input from Council members and the small multi-disciplinary team who support its work, it relies on the cooperation of individuals and organisations working in the criminal justice system and beyond to ensure that it has the fullest information possible to draw on.”

Over the years, thousands of magistrates and judges have completed surveys or participated in detailed research, providing the Council with evidence which underpin the guidelines. It has held more than 30 public consultations, which have received almost 4,000 responses.

In addition to producing guidelines, the Council also: publishes research and statistics on sentencing; seeks to promote public understanding of sentencing through information on its website; provides educational materials for use in schools; and works with other organisations, for example the police.  

The stated purpose of the consultation – which opened in March 2020 – is not to look back (though obviously it reflects on the work of the Council to date), but to look forward. It is asking all those with an interest in criminal justice and sentencing to contribute to a discussion on what the Council’s future objectives and priorities should be.

The Consultation runs until mid September 2020.

It can be found at https://consult.justice.gov.uk/sentencing-council/what-next-for-sentencing-council/

Written by lwtmp

August 24, 2020 at 4:41 pm

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

 

 

 

 

 

 

Covid 19 and the English Legal System (12): impact on legal practitioners

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One impact of Covid 19 has been the exponential rise in the numbers of legal professionals who are currently working full-time from home. An obvious question is what will be the long-term impact of this development? When the pandemic is under control, will lawyers go back to their offices, as before? Or will there be a ‘new normal’ in which legal professionals will increasingly work from home, making only infrequent visits to their offices?

Roger Smith, who has for a number of years been writing on the impact of new technologies on the provision of legal services, has just published a really interesting blog of what he regards as some of the key developments. He looks not only at what has happened in the UK but draws on reports of developments in other jurisdictions.

For the short term, his conclusion is that, in general, legal service providers have adapted pretty quickly to the new environment – large corporate firms possibly more quickly than less well-funded practices.

One question for the future that he raises is what changes in management styles and management information systems will be required if high percentages of staff continue to operate from home.

See https://law-tech-a2j.org/digital-strategy/covid-19-technology-and-the-access-to-justice-sector-the-first-phase-remote-working/

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Written by lwtmp

July 13, 2020 at 3:37 pm