Archive for the ‘Chapter 9’ Category
Reviewing the mandatory retirement age for judges
The arguments in favour of having a mandatory retirement age (MRA) for the judiciary and other similar office holders are that it:
- 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);
- preserves judicial dignity by avoiding the need for individual health and capacity assessments;
- maintains public confidence in the capacity and health of the judiciary;
- supports workforce planning and allows for greater career progression/ diversity;
- 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/
Equal Treatment Bench Book: revised edition
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/
Covid 19 and the English Legal System (13): Justice Committee reports on the impact on the Courts and on the Legal Profession
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
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.
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Lawtech: support for innovation in the delivery of legal services
I have recently posted a number of items relating to the application of information technologies in the delivery of legal services.
Another source of information and support for the development of technology in the delivery of legal services may be found at Lawtech – part of a range of initiatives that have been formed under the overall Tech Nation label. (Other activities of Tech Nation relate to, for example, the finance sector, AI, cybersecurity, the net zero economy.)
The objective of the organisation is to support new companies wanting to develop new services in the areas covered by Tech Nation. Considerable innovation has occurred in recent years in the ways in which financial services are delivered. The challenge is to see how the provision of legal services can similarly be transformed.
The Technation website states:
The legal and tech community have the opportunity and responsibility to restructure and reinvent legal services, to meet and exceed the evolving demands of business and society, in our digital world.
LawtechUK is an initiative that will help transform the UK legal sector through tech
This work is supported by a Lawtech Delivery Panel (LTDP), chaired by Christina Blacklaws, a former President of the Law Society.
This is a government-backed initiative bringing together legal sector leaders and experts from government, the judiciary, academia and industry in a single forum, to support the digital transformation of the UK legal sector. The LTDP act as an important advisory board to LawtechUK
An introduction to LawTech may be found at https://technation.io/lawtechuk/
Law tech companies that have been supported through Tech Nation are listed at https://technation.io/lawtechdatacommons/lawtech-startups-and-scaleups/
Further impetus for these developments has been given by an important report published by the Law Society in October 2019 on the importance for law firms of Law Tech. In particular, it offers encouragment to solicitors in small firms and sole practitioners to take Lawtech seriously.
The Law Society Report may be downloaded at https://www.lawsociety.org.uk/campaigns/lawtech/guides/introduction-to-lawtech
Legal services regulation: the Mayson report
This is an important report on the need to rethink the approach to the regulation of legal services and those who provide them. The author Stephen Mayson has summarised his report on his blog. I reproduce what he wrote here, with his permission.
After two years, my final report of the Independent Review of Legal Services Regulation haas been published. It is available for download from this site and from UCL.
In 2016, the Competition & Markets Authority completed its market study and concluded that the legal services sector is not working well for individual consumers and small businesses, and that the current regulatory framework under the Legal Services Act 2007 is not sustainable in the long run. One of its recommendations was that the government should undertake a review of the current regulatory framework.
In light of Brexit, the Ministry understandably did not feel able at the time to commit to a formal review. In July 2018, I therefore volunteered to undertake the Independent Review on a pro bono basis under the auspices of the Centre for Ethics & Law, in the Faculty of Laws at University College London.
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Re-thinking legal services regulation
I have reposted this excellent blog by Stephen Mayson, who is undertaking very important work on the need to further reform the regulatory structures for the legal professions.
My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here). This post is extracted from it.
While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.
For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure. These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.
This lack of follow-through has led to increasing challenges to the integrity…
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Encouraging Judicial Diversity
In April 2019, the Judicial Diversity Forum launched a new initiative designed to encourage talented lawyers from the Black and Ethnic Minority community to think about applying to become a judge. The first part of this programme is a series of YouTube videos – which can be watched by anyone interest. A further part of the programme – judge-led discussion group courses – will launch later in 2019.
This is the first joint initiative of the Judicial Diversity Forum, which is made up of the Judiciary, Ministry of Justice (MoJ), Judicial Appointments Commission (JAC), The Bar Council, The Law Society of England and Wales and the Chartered Institute of Legal Executives (CILEx). Forum members are committed to delivering actions that attract applicants for judicial roles from all backgrounds to achieve a more diverse judiciary.
PAJE offers participants from all legal backgrounds the opportunity to develop their understanding of the role and skills required of a judge, through a series of digital resources including 10 short online videos and four podcasts, developed by the Judicial College, which show judges talking about their work and the Judiciary.
These digital resources cover a number of topics such as judgecraft, decision-making, judicial ethics, resilience and equality and diversity.
For further information see https://www.judiciary.uk/about-the-judiciary/who-are-the-judiciary/diversity/pre-application-judicial-education-programme-paje/
The YouTube videos may be viewed at https://www.youtube.com/channel/UCi3XytDJY8a3I9_vL7A_5SQ
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Judicial decision making – tackling the problem of ‘cognitive bias’
When coming to decisions, we all have a tendency to reach decisions that are not entirely logical or free from bias. We should all aim to limit the effects of such biases. This is particularly important for those reaching decisions in a judicial setting. However, this is hard to do unless we know about the biasses that may exist and how they may be countered.
In a recent edition of Tribunals Journal (2018 No 2) Simon Ward – a medic who also sits as medical member of the First Tier Tribunal – discusses five major types of cognitive bias that exist when we are required to weigh evidence before reaching a decisions. He also considers techniques for countering these biasses.
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Representativeness. Similarity or resemblance to a group is used to imply representativeness of that group rather than using the real probability of membership. Applying the actual base rate rather than the perceived occurrence rate of the factor being considered, is recommended so the correct likelihood is utilised.
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Availability. Easily recalled or available memories or experiences are used to predict or estimate an outcome rather than the actual objective occurrence. Using measures to reduce reliance on memory such as reminders, prompts and checklists, is advocated so that accuracy is maintained.
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Anchoring. Salient or prominent features are preferred and given undue influence or anchored onto before evaluation is completed. Slowing down decision making to allow time to evaluate matters fully is advised so the correct weight or apportionment is applied.
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Confirmation. Information that confirms our own pre-existing expectations or beliefs is filtered and selected in preference to opposing or contradictory aspects. Actively seeking out alternative possibilities or positions is suggested so as to challenge and counter subjective, partisan or partial viewpoints.
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Optimism. Overconfident or optimistic evaluations are made of how much we know and how reliably we know it, whilst our own knowledge limits are undervalued. Comparing the current evaluation to a reference group of similar membership is recommended so as to allow calibration of the current decision
The article gives further examples of the applications of these principles and how they may be applied in practice. The lessons are, of course, important for all decision-takers, not only judges. It is an issue to which, historically, little attention has been paid in judicial training. It is very interesting that a practicing tribunal member should be seeking to share his expertise on this often misundertood issue.
The full article is at https://www.judiciary.uk/wp-content/uploads/2018/03/tribunals-journal-edition2-2018.pdf pages 2-9.
Innovation and the use of technology in the provision of legal services
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
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 