Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 9’ Category

Diversity in the Judiciary: slow progress

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The judicial diversity statistics were published on 12 July 2018. They are based in information as at 1 April 2018.  The statistics show there has been further, albeit slow, progress in the appointment of women in judicial posts; there has been some progress, though less than for women, in the appointment of those from Black and Ethnic Minorities groups as judges. that:

  • 29% of court judges and 46% of tribunal judges were female. 50% of non-legal members of tribunals were female.
  • Around half of court judges aged under 50 are female.  Females outnumber males among tribunal judges at all age groups under 60.
  • 24% of Judges in the Court of Appeal and in the High Court were female.
  • 41% of Upper Tribunal Judges were female.
  • Since 2014 there has been a 5-percentage point increase in female representation among court judges.
  • 8% of judges identified as BAME (7% of court and 11% of tribunal judges); non-legal tribunal members 17%
  • BAME representation among court judges aged 40 or over (98% of judges) was only slightly below that of the working age general population in each age band, while BAME representation among tribunal judges was higher than that of the working age general population at all age bands from 40 and over. Non-legal members have considerably higher BAME representation than that of the working age general population at all age groups.
  • A third of court judges and two thirds of tribunal judges are from non-barrister backgrounds.
  • More than half of magistrates were female (55%)
  • 12% of magistrates declared themselves as BAME.
  • There were very few magistrates aged under 40 (4%) compared with 55% of magistrates who were aged over 60.

On 27 June 2018 (outside the period used for the report) the appointment of three Lady Justices and four Lord Justices of Appeal were announced. On 9 July 2018 the appointment of five High Court Judges were announced, three of which were male and two of which were female. These will be reflected in the statistics for 2019.

The full report is available at https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/judicial-diversity-statistics-2018/

There are two major challenges relating to judicial appointments which have been aired recently.

First, there are concerns at the significant reduction in the numbers of Lay Justices who sit in Magistrates’ Court.

Second, there are concerns about unfilled appointments to the High Court, attributed to recent reductions in the pay and benefits associated with these appointments. This is an issue currently under review by the Senior Salaries Review Body. The outcome of the consultation is currently awaited. It was the subject of a recent speech given by the Lord Chief Justice.

See https://www.gov.uk/government/consultations/major-review-of-the-judicial-salary-structure

The Lord Chief Justice’s speech is at https://www.judiciary.uk/wp-content/uploads/2018/07/20180704-lcj-speech-mansion-house-speech.pdf

 

 

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Written by lwtmp

July 12, 2018 at 10:42 am

Preventing digital exclusion

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A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it;  conducting various types of legal activity/process on-line; dealing with disputes online.

In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.

In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.

In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.

The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:

  • Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
  • Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
  • Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
  • Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
  • Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
  • Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
  • Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
  • Researching how people behave in an online environment and choices between Assisted Digital channels.
  • Collecting and making available the widest range of data possible to support research by external experts.

Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.

For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.

The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.

The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.

Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/

Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.

See http://justiceinnovation.org/portfolio/just-technology-emergent-technologies-justice-system-public-thinks/

 

 

 

Equal treatment: Guidance from the Judicial College

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It should go without saying that, particularly in the legal arena, those who take part in proceedings before courts and tribunals need to feel that they have been treated equally.

This is, of course, easier said than done, as David Lammy’s report on the Criminal Justice System, published in 2017 showed. (See this blog 29 Sept 2017). But for many years first the Judicial Studies Board and now the Judicial College have offered guidance to judges (and by extension to others involved in the justice system) about the best ways to try to ensure that people are treated fairly.

Much of this focusses on the language that judges and others involved in the justice system use generally (for example in relation to litigants in person) and in relation to those from specific sectors of society, who may be defined by their religion, their ethnicity, their sexual orientation, mental or physical disabilities, their gender.

In February 2018, the Judicial College published an on-line updated revision to its ‘Equal Treatment Bench Book’. Bench books were originally devised as a handy guide to key issues which could sit on the judge’s desk, available for him to refer to it that seemed necessary.

I am not sure whether this particular Bench Book can be used in this way. For one thing, it is very long – well over 400 pages. And the issues raised are such that I would have thought judges would need to have considered them before a case or other proceedings have started. (It would not be desirable for a judge to stop in the middle of a sentence in order to look up how a particular person should be addressed.)

But I don’t agree, as some comments in the press have suggested, that the Equal Treatment Bench Book is an example of political correctness gone mad. It seems to me to be an honourable attempt to raise questions and address issues that arise in practice but that many judges may not have thought about before. (Indeed, I think there are some parts of the book that would be of interest to a wider readership.)

I set out the link to the text here, and invite readers to take a look at the Book and come to their own view on its value.

See https://www.judiciary.gov.uk/wp-content/uploads/2018/02/equal-treatment-bench-book-february-v6-2018.pdf

 

 

 

Written by lwtmp

April 4, 2018 at 3:19 pm

Innovation in the provision of legal advice

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Lawyers do not always get a good press. But an interesting paper, recentlypublished by the Human Rights Group JUSTICE (I declare an interest – I am a member of its Council), shows that there are many who still want to deliver legal services to the most disadvantaged people in our society.

In Innovations in personally-delivered advice: surveying the landscape the paper takes a look at how dedicated lawyers and others in the advice sector have sought to devise new ways of delivering advice to members of the public. The cuts to Legal Aid have not deterred them from wanting to provide a public service.

The importance of these services was stressed both in the Low Commission report in 2015, and the Bach report in 2017 – both of which called for their development. What the JUSTICE report shows is how, in a time of austerity, it is still possible to offer at least some services in new an innovative ways.

A number of important points emerge from the survey:

  1. First is that taking legal advice to places where those who might want that advice go might be more effective than expecting people to come into solicitors’ offices. Thus the report gives examples of outreach work being undertaken in doctors’ surgeries, foodbanks, prisons, ‘pop-up’ clinics in libraries, branches of Tesco, and university Law Clinics.
  2. Second, providers may need to consider new partnerships with both the private and charitable sectors to fund new initiatives. The report gives examples of new partnerships with the private sector (e.g. banks – offering advice on debt ) and the charitable sector (e.g. Dementia UK offering advice for dementia sufferers and carers). Moves towards greater corporate social responsibility may offer new opportunities for innovation.
  3. Thirdly, the report gives examples of advice providers taking advantage of the new rules on Alternative Business Structures to develop new ways of delivering face-to-fact advice services. For example, with Gateshead Enterprises’ Job Law, “the first consultation is free and any further advice required is on a ‘pay as you go’ basis”;  the chargeable advice is half price; and any profits are channelled directly back into Citizens Advice Gateshead to ensure it can continue its work.

This is not designed to be a comprehensive report on everything that is happening in the advice sector. But, given how easy it is to assume from the media that the cuts in legal aid and other sources of funding for the advice sector have almost destroyed the advice sector, I think it important to know that dedicated individuals continue try to deliver a service to those who most need such services. The examples given in this paper show that the green shoots of innovation are, if not yet flourishing, beginning to emerge from a very hard economic climate.

I hope the examples given here will inspire others to bring forward their own ideas and initiatives.

The JUSTICE report is available at https://justice.org.uk/innovations-personally-delivered-advice-surveying-landscape/

Written by lwtmp

March 6, 2018 at 5:19 pm

How diverse are law firms?

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One of the challenges facing the legal profession is trying to ensure that it offers opportunity to all. For the last four years, the Solicitors’ Regulation Authority has conducted surveys which seek to measure diversity in law firms. The most recent report was published in February 2018. While data for any one survey year may not reveal very much, the creation of comparable datasets over a period of years can reveal trends.

The survey looks at a number of characteristics to assess the extent to which law firms offer diversity in employment. This note reproduces and highlights some of the primary factors identified in the survey.

  1. Gender

Women make up 48% of all lawyers in law firms compared with 47% on the overall UK workforce.

Looking at seniority, in 2017 women make up 59% of non-partner solicitors compared to just 33% of partners (though this is up from 31% in 2014).

In the largest firms (50 plus partners) 29% of partners are female. The proportion of female partners has risen steadily from 25% in 2014 to 29% in 2017.

There is a greater proportion of female lawyers in mid-size firms – women make up 54% of all lawyers in firms with six to nine partners and those with 10 to 50 partners. The highest proportion of female solicitors is in firms which have six to nine partners. In these firms, two thirds (66%) of solicitors are female and this has grown over the past four years (from 60% in 2014). Over a third of the partners in these mid-size firms are female (37%) and this has also grown from 31% in 2014.

There are variations by the type of legal work undertaken by firms. While overall women make up 48% of all lawyers, 52% of lawyers in firms mainly doing private client work are female, whereas 40% of lawyer in firms mainly doing criminal work are female.

  1. Ethnicity

There has been an increase in the proportion of black, Asian and minority ethnic (BAME) lawyers working in law firms, now one in five lawyers. This is up 6%, from 14% in 2014 to 21% in 2017.

This increase is largely due to the rise in Asian lawyers in the profession, up from 9% in 2014 to 14% in 2017. Asian lawyers make up two thirds of all BAME lawyers.

Black lawyers make up 3%, which has risen by 1% since 2014 and now reflects those in employment in the UK (3%).

Unlike the profile for women, there is very little difference by seniority among BAME lawyers, 21% of solicitors are BAME compared to 20% of partners.

However, differences become apparent when the breakdown of partners in firms by size is considered. The largest firms (50 plus partners) have the lowest proportion of BAME partners – only 8% which has risen by 1% since 2014. This contrasts with one partner firms, where just over a third (34%) of partners are from a BAME background.

There are differences in the proportion of BAME lawyers according to the type of legal work undertaken by firms. Firms mainly doing criminal work and those mainly doing private client work both have a higher proportion of BAME lawyers, 33 and 37% respectively. Firms doing a mixed range of work and firms doing mainly corporate work both have the lowest proportion of BAME lawyers, 12 and 19% respectively. 

  1. Social Mobility

The survey used attendance at a fee paying school and whether someone was the first in their generation to attend university, as a proxy for social mobility in this survey.

  • Attendance at fee paying schools

There is a significant gap between lawyers and the general population. 22% of all lawyers attended fee paying schools, compared with 7% in the general population. There has been no change since 2015, though the proportion of lawyers attending fee paying school fell by 4% between 2014 and 2015.

There is a difference between partners (24%) and solicitors (20%) who went to fee paying schools. The proportion of partners from fee paying schools in the largest firms (with 50 plus partners) has fallen from 43% to 36% since 2014

The firms which mainly do corporate law have the lowest proportion of state educated solicitors at 56%. Three quarters of solicitors in firms doing mainly criminal and litigation work are state educated (77 and 76% respectively) compared to just over half in corporate firms (56%).

  •  First generation in the family to attend university

In contrast, there is a higher proportion of partners who were the first generation in their family to attend university (59%), compared to 49% of solicitors.

The proportion of partners who were the first generation to attend university is highest within the smallest firms and this decreases with size of firm. This ranges from 63% of partners in one partner firms, to 52% in firms with 50 plus partners.

Only 5% of lawyers did not attend university at all. This has fallen since 2014, when 7% did not attend university.

The principal conclusion to be drawn from these data is that while some increase in diversity can be seen, the legal profession can and should still do more.

Full details of the survey and its findings are at https://www.sra.org.uk/sra/equality-diversity/key-findings/law-firms-2017.page#

Written by lwtmp

March 3, 2018 at 12:41 pm

Practitioners and academics: new alliances

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In my book Introduction to the English Legal System, I argue that legal academics play an important role in the development of our understanding of the law and that their role should be given more recognition than it sometimes has had in the past. (See Chapter 9, section 9.10).

Recently, however, my interest has been stimulated by stories in the professional legal press concerning a rather different collaboration between the world of legal practice and the academic world.

A number of firms, particularly those engaged in personal injury litigation, have been working with academic statisticians  and ‘decision scientists’ to try to understand what are the variables that are in play when litigation is under consideration and thus trying to understand better the risks of taking particular cases on and to predict better the potential outcome of issues that are being litigated. This may help practitioners to decide whether a case should settle, or be fought through to trial.

The firms concerned think this may be beneficial both for small value large volume groups of claims, as well as high value claims. One finding that has emerged from this work is that the models that are being used  suggest that the upper level of the Judicial College Guidelines on damages for different types of injury is almost irrelevant in most cases.

It is possible that this approach might also be used by the Courts and Tribunals service to analyse cases that pass through the courts. It might help, for example, in making determinations on which cases might be suitable for the small claims track or the fast track in the allocation of civil disputes in the county court – a possibility hinted at by Sir Ernest Ryder in a recent speech where he said:

Digitisation will, if we are sensible, provide us with the opportunity to gather data on the operation of our justice systems in ways that we have often been unable to before. It provides us with the opportunity to make our justice systems more adaptive; but again, only after proper scrutiny and discussion.

It seems to me that these initiatives will grow in number in the near future. What will be needed is proper evaluation of these tools to see whether they do in fact assist in both legal and judicial practice, and how they might be developed.

For press reports on these initiatives see https://www.legalfutures.co.uk/latest-news/hodge-jones-allen-embraces-predictive-modelling-pi-work; and https://www.legalfutures.co.uk/latest-news/leading-law-firm-joins-forces-lse-professors-find-ways-predict-litigation.

Sir Ernest Ryder’s speech is at https://www.judiciary.gov.uk/wp-content/uploads/2018/02/ryder-spt-open-justice-luxembourg-feb-2018.pdf

 

Research into Alternative Business Structures: the Legal Services Board

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Since licensing began in 2011 there have been 950 ABS licences issued. As of March 2017 there were 892 active licences.  In April 2017, the Legal Services Board published a significant report into ABS. It sought to address 4 questions, which I have adapted from the report and which I try to summarise here:

1.What kind of investment activity has there been in ABS?

These businesses are predominantly existing legal service businesses converting to ABS status, with one in five respondents to our survey being new firms. Three fifths of ABS have less than 50% non-lawyer ownership. Just under one in five ABS are wholly owned by non-lawyers, with a similar proportion being fully owned by lawyers but having some proportion of non-lawyer managers….

The research shows that the majority of ABS firms (66%) either have already invested or are planning to do so, since they gained their ABS licence. These investments have mainly been made to hire more staff, increase marketing activity or to purchase IT. The LSB sees this as evidence of the increased scale that allowing non-lawyer ownership was designed to enable.

2.Is the market attractive to all sources of finance?

The survey shows ABS firms accessing a wide range of sources of finance, and only a small proportion of ABS indicating difficulties in accessing finance. The most frequent source of funding for investments was business profits or cash reserves which were used by 49% of those who had invested in their business. Just over a quarter of investments were solely funded us ing a loan from a bank, and a quarter were solely funded using the business’ overdraft facility.

External sources of equity finance accounted for only a minority of investment funding sources either as the sole or joint source of investment funds, and only 12% of ABS had used any form of external finance. Partnerships are more likely to use debt funding for finance, with 55% using loans or overdrafts, but none had used external investment. Companies limited by guarantee had the highest proportionate use of any form of external funding, with 24% issuing shares, investment from private equity, or becoming a subsidiary of another company.

3. What do investors think of the legal services market?

According to the investors interviewed, the legal sector is seen as a ‘sleepy’ market with opportunities for investors to grow their investment capital by improving efficiency within the business itself. They appear to have concerns about the ability to exit the legal sector once their investment has matured, although there are some examples of private equity investors having sold on their investment and exited the sector.

Except perhaps in the personal injury sector, it would appear that bank lending is a substitute for external capital. For the firm this means they do not have to cede ownership control of part of their business. In addition, there is a view that many firms do not present financial information in the ways investors expect and/or have a weak grasp of the value of their businesses.

This might explain the investor’s perspective of the legal sector as being reluctant to seek investment from private equity firms, and reports of investors struggling to find appropriate firms in which to invest. While the overall size of the market and the scale of businesses operating may limit opportunities for some investors, the LSB thinks that cultural norms, governance, and non-commercial financial management practices in some businesses are likely to be more important factors.

4. Are there any regulatory barriers to investment?

Only 6% of ABS identified some aspect of legal services regulation that prevented them accessing finance. Nor does the cost of legal services regulation appear to be a barrier… However there is anecdotal evidence of some areas of regulation causing concern to investors. These includes restrictions on ownership and picking up liabilities for historic complaints and insurance claims.

Only 1.5% of ABS identified some aspect of wider regulation that prevented them accessing finance. The regulatory barriers to investment cited by the investor and investment consultant we spoke to relate mainly to wider regulatory and governmental activity, particularly in relation to personal injury reforms

Conclusion:

The potential link between investment and enabling better access to legal services is well–rehearsed elsewhere. However, investment remains an under-explored area of research and generally licensing authorities have not used their data to understand trends in investment and financing. [Overall it may be concluded that] levels of innovation are not increasing.

The dynamics of competition create incentives for suppliers to increase productivity through innovation, which lowers costs and hence prices through time. This is likely to involve taking a different approach to delivering a service, or developing new services completely. In the absence of strong competition, there is insufficient impetus for law firms to take the greater risks (and rewards) involved with using external capital.

Until these incentives change the LSB thinks there is unlikely to be significant growth in the use of external capital by ABS firms.

The report can bee seen at http://www.legalservicesboard.org.uk/news_publications/LSB_News/PDF/2017/20170613_LSB_publishes_investment_in_legal_services_research.html

Written by lwtmp

October 19, 2017 at 5:15 pm