Martin Partington: Spotlight on the Justice System

On 21 November, 2011, the Lord Chancellor launched a consultation on changes to the ways in which judicial appointments are made. The consultation deals with four main issues:

1. How to achieve the proper balance between executive, judicial and independent responsibilities in the appointment of judges;

2. How to improve clarity, transparency and openness in the appointment process;

3. How to create a more diverse  judiciary that is reflective of society and appointed on merit; and

4. How to deliver speed and quality of service to applicants, the courts and tribunals and value for money to the taxpayer.

In relation to 1, the paper suggests that there should be some redrawing of the responsibilities of Lord Chancellor and Lord Chief Justice, with more decision making power going to the latter.

In relation to 2, there are proposals for opening up more of the most senior judicial positions to open competition.

In relation to 4, detailed changes to the size of the Commission and its procedures are suggested.

As regards the diversity issues, to which the Lord Chancellor seems particularly committed, a number of quite radical changes are suggested. For example, while part-time working is possible for the lower judiciary, this is not currently an option for judges in the High Court and above; the paper asks whether this should change.  Another question asks whether the JAC should be able to apply the Equality Act 2010’s positive action provisions when two candidates are essentially indistinguishable.

The consultation ends in February 2012.

The paper is at http://www.justice.gov.uk/downloads/consultations/judicial-appointments-consultation-1911.pdf

In the book, in Chapter 9, I draw a distinction between legal services and lawyers’ services. Under the Legal Services Act 2007 there are a certain number of functions which are called ‘reserved legal activities’, which must only be undertaken by professionally qualified lawyers or by people who are members of other groups who are authorised to provide such services. These include the conduct of litigation and probate activities.

During the summer of 2011, the Legal Services Board launched a consultation on whether other legal services provided by people not members of the legal profession should also be regulated.

The Board noted that ‘there are two main types of legal service regulation. Some lawyers are regulated in respect of all their legal work by virtue of their professional membership and accompanying title – the best known of which are solicitors and barristers. Others are authorised by a legal services regulator to undertake one or more of the six specific “reserved legal activities” which brings them within the scope of legal services regulation’.

They also noted that one consequence of this is that ‘there is no specific legal services regulation of people who neither have a protected title nor offer any of the reserved activities. Will-writing is perhaps the best known of the services frequently undertaken by unregulated providers, but there are many others including many forms of general legal advice. In such cases, consumer protection arises only from general consumer law and voluntary schemes of regulation, rather than any other statutory requirements: importantly, consumers have no automatic right of redress from the Legal Ombudsman’.

The reason for this is that regulation of legal services has grown up in a piecemeal fashion. There have been no overarching guiding principles.

The Board sought views on whether and to what extent there needed to be a further raltionalisation of the scope of the regulatory framework for legal services to enhance consumer protection, particular as the arrival of alternative business structures may result in the emergence of rather different forms of legal service delivery.

The Consultation exercise has just closed and no doubt it will be some time before the Board comes to a final view. To read their Consultation Paper go to http://www.legalservicesboard.org.uk/what_we_do/consultations/open/pdf/enhancing_consumer_protection_reducing_restrictions_final_28072011x.pdf

For the comments of the Solicitors Regulatory Authority go to http://www.sra.org.uk/sra/news/press/SRA-calls-for-all-legal-services-to-be-regulated.page

For lawyers, ABS doea not stand for advanced braking system, but for alternative business structure. The possibility of lawyers forming legal businesses with non lawyer investors has been on the horizon ever since the Legal Services Act 2007 was passed. Indeed the idea goes back to the Clementi Review of the legal profession – a review designed to encourage new forms of legal practice.

The press stories I read about this today have been a bit misleading – it is true that approval has been given to one of the regulatory bodies to license new forms of legal service provider. But first out of the blocks is not the Law Society, as you might have thought from the publicity, but the more focussed group – the Council of Licensed Conveyancers. The Law Society is awaiting final Parliamentary approval, which it hopes to secure in December 2011.

From today (6 Oct 2011), non-lawyer ownership of conveyancing firms will be allowed as a key part of opening up the market and increasing choice for consumers of legal services. These firms can access external capital and allow lawyers and non-lawyers jointly to own and run the business together.

The Legal Services Board announcement makes clear that they hope that the Solicitors Regulatory Authority will be in a position to issue such licenses by the end of 2011; this will have a much greater potential impact on legal service delivery taken as a whole.

What will be interesting is to monitor how these new opportunities are taken up by lawyers. For those working in the real estate world, and given the difficulties of the current property market, there may be considerable interest in seeing whether conveyancing services can be offered more cheaply and efficiently.

For more info see Legal Services Board press release at http://www.legalservicesboard.org.uk/news_publications/press_releases/2011/pdf/presser.pdf

To follow up my interview with Mike Napier on pro bono lawyering, I have recently received a copy of the latest Annual Report on the Pro Bono activities promoted by the College of Law. It is a remarkable account of the variety of activities undertaken by students at the college.
More generally, law schools have in recent years developed a number of activities designed to make law and legal awareness more available to the general public. This is a tangible public benefit contributed by higher education without the recognition it deserves.
The College of Law report is found at http://www.college-of-law.co.uk/About-the-College/Social-responsibility/#Pioneers_in_pro_bono