Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 9’ Category

Innovation and the use of technology in the provision of legal services

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The Legal Services Board has just (November 2018) published its latest detailed picture of levels of innovation and use of technology in legal services in England and Wales.

This report looks at the attitudes of legal services providers, sets out the benefits from innovation and considers the perceptions of the main enablers, including the impact of regulation.  The headline findings are:

  • the legal sector makes use of a variety of technologies but the use of services such as Blockchain or predictive analytics are, as yet, rare
  • overall levels of service innovation are unchanged since the first wave of the research three years ago
  • ABS, newer providers and larger providers have higher levels of service innovation.

Although putting a positive spin on the outcomes of the survey, I cannot help thinking that the LSB may actually be rather disappointed at the outcomes of the survey – given all the talk that there has been about the importance of innovation and new technologies.

My impression is that change is happening, but that it will much longer for the full benefits claimed for the use of new technologies to be realised in practice.

You can read the full report at https://www.legalservicesboard.org.uk/news_publications/LSB_News/PDF/2018/20181128_Innovation_Driven_By_Competition_And_Less_Hindered_By_Regulation.html

 

 

 

 

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Changing the routes to professional qualification

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The Solicitors’ Regulation Authority has been looking at the routes to qualification for some time. It has now decided that  new scheme will be introduced in 2021. This will involved the creation of a common assessment for all would-be solicitors from autumn 2021.

The basic elements of the new scheme are that those wishing to  qualify as a solicitor will be:

  • Pass stages 1 and 2 of the Solicitors Qualifying Examination – the first stage will focus on legal knowledge and be assessed on the basis of a centralised multiple choice examination; and the second will focus on practical legal skills, such as undertaking legal research.
  • Have a degree (in any subject) or equivalent qualification.
  • Pass the character and suitability requirements.
  • Have a substantial period of work experience.

The SRA have appointed Kaplans to be the assessors for the new assessment.

This will mean that law students who are exempt from Part 1 of the current Law Society Finals if they pass a ‘qualifying degree’ will no longer have this exemption. There are currently no details about the curriculum for the new Stage 1 SQE, nor how or where it will be taught.

These proposals raise important questions, particularly for universities who have invested heavily in the provision of law degrees. One unknown is whether those who currently study for a law degree as part of the process of obtaining a professional legal qualification will in future sign up for university law degrees in the same numbers. Why would they want to study law if they still have to do an assessment after they have finished their degree studies? Much will depend on what the teaching methods for the new, unspecified, curriculum will be – will law graduates be treated differently from non-law graduates?

At the same time, universities may relish the fact that they will no longer have half of their degree courses effectively determined by external forces. They may use this freedom to devise new ways of teaching and news types of course. It does seem that the experience component of the new qualifying process could include work done for example in a University Law clinic or other legal context.

For further detail see https://www.sra.org.uk/solicitorexam/.

See also https://www.law.ac.uk/blog/understanding-the-sqe-and-what-it-means-for-me/

For a critique of the proposals see https://www.legalfutures.co.uk/latest-news/training-review-professors-criticise-rudimentary-sqe

 

 

 

 

Written by lwtmp

November 29, 2018 at 1:04 pm

Standards of Criminal Advocacy: reports from the Solicitors Regulation Authority and the Bar Standards Board

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In November 2015, I noted in this blog the critical report by Sir Bill Jeffrey on standards of criminal advocacy. I also noted the consultation paper on the subject issued by the Government.

In June 2018, the SRA and the BSB published two reports on the subject.

The first report explores the views of the judiciary on the current quality, provision and regulation of advocacy within the criminal courts. The Judicial Perceptions Report, involved in-depth interviews with 50 High Court and circuit judges.

Key findings were:

  • While judges viewed the current quality of advocacy as competent, some felt that standards were declining in some areas, especially in relation to core courtroom skills such as case preparation and dealing with some witnesses.
  • Advocates’ skills in dealing with young and vulnerable witnesses are largely improving.
  • The most commonly cited barrier to high quality advocacy was advocates taking on cases beyond their level of experience.
  • Judges were uncertain over when, and how, they should report poor advocacy to regulators.

The second report arose from a Thematic Review of Criminal Advocacy, undertaken by the SRA. It was informed by data gathering and interviews with 40 solicitors’ firms actively involved in providing advocacy by solicitors within the courts.

Key findings of the SRA’s thematic review included:

  • Firms use in-house solicitors to support the vast majority of criminal work in magistrates’ courts and youth courts (90 percent), and 29 percent of work in the Crown Court.
  • The solicitors’ advocacy market is dominated by smaller firms and increasingly ageing individuals, while the number of new entrants to the market is falling.
  • Levels of complaints regarding advocacy work are relatively low (22 recorded complaints in two years across all 40 sample firms).
  • Approaches to training are inconsistent, with its delivery often infrequent, limited or not planned.

To me, the most concerning finding is that those doing this work are aging and are not currently being replaced by younger colleagues. It may be assumed that the cuts to criminal legal aid have had an impact on this.

Building upon the findings of both reports the SRA will be undertaking further work to understand the work of solicitor advocates.   The Bar Standards Board also intends to publish its strategy for assuring the quality of advocacy shortly.

The reports can be accessed at https://www.barstandardsboard.org.uk/media-centre/press-releases-and-news/regulators-publish-reports-into-criminal-advocacy-standards/

or https://www.sra.org.uk/sra/how-we-work/reports/criminal-advocacy.page

 

 

 

Written by lwtmp

October 15, 2018 at 4:02 pm

Legal choices – website on legal service providers

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One of the recommendations made by the Competition and Market Authority 2016 report on competition in legal services was that there should be a revamp of and better promotion for the Legal Choices website. It was intended that this should be the starting point for customers needing help, information, and guidance on how to navigate the market and purchase services.

The website is run by the frontline regulators themselves (Solicitors Regulation Authority, Bar Standards Board, etc.), and aims to provide factual information about who is regulated, how they are regulated, and how to find information out about those who are regulated, their costs, and what can be expected from them by way of service. It does not sell services or products.

I have not noted its existence before – but this is an omission I now seek to rectify. It contains a great deal of useful information. It should, as the CMA proposed, be much better promoted to the wider public.

To visit the website go to https://www.legalchoices.org.uk/.

 

 

 

 

 

Written by lwtmp

October 14, 2018 at 3:14 pm

‘Looking to the future’ – proposals for regulatory changes from the Solicitors’ Regulation Authority

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In June 2018, the Solicitors Regulation Authority published its Looking to the Future reforms which include a range of changes to how it regulates solicitors. In outline, they are

Shorter, simpler rules and standards

  • A shorter, more accessible Handbook – focussing on the behaviours and principles that support high professional standards.
  • A separate Code of conduct for solicitors and one for firms.

Greater flexibility for solicitors and firms

  • Opportunities for solicitors to provide ‘reserved legal activities’ on a freelance basis, in certain circumstances. They will need to have at least three years’ experience, appropriate indemnity insurance, and will not be able to hold client money.
  • Opportunities for solicitors to do non-reserved legal work in a business not regulated by us or another legal services regulator. They will be bound by our solicitors’ Code.
  • In both instances, solicitors will need to be clear with prospective clients about the protections they bring.
  • Our new, simpler rules will also give firms greater flexibility to make decisions about how they work, helping to make doing business easier.

Simpler Accounts Rules more focused on keeping client money safe

  • Less prescriptive Accounts Rules which focus less on technicalities, and more on issues directly linked to keeping client money safe.
  • Providing a definition of ‘client money’ which maximises the need to protect the public while not placing unnecessary burdens on firms.

Improving clarity on when we take action

  • Our new enforcement strategy will provide greater clarity for the public and profession about when and how we would – or would not – take action against a solicitor or law firm.
  • It will also help us focus on the most serious matters.

Better information on price

  • All regulated firms will need to publish price information for the public and small businesses for seven types of legal services.
  • This includes conveyancing, employment tribunals and probate.

Better information about protections

  • SRA-regulated firms will be expected to display an SRA digital badge on their websites, which will provide a direct link to information on the protections their regulated status gives customers.
  • A modern digital register that will help people more easily find core information about who we regulate.

The proposals are currently with the Legal Services Board. The SRA hopes that the proposals on the publication of price information will come into effect in the autumn of 2018; the rest during 2019. They are at least in part a response to the Competition and Markets Authority Report on competition in legal services published at the end of 2016.

One of the most interesting proposals is that solicitors should be able to work in contexts other than solicitors’ offices, which may create opportunities for the development of new types of legal service work.

For further information see https://www.sra.org.uk/sra/policy/future/looking-future-reforms-summary.page from which this entry has been adapted.

 

 

 

 

 

Written by lwtmp

October 14, 2018 at 2:47 pm

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

 

 

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/