Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Legal support – the way ahead? How much vision?

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I have already noted the outcome of the  Post-Implementation Review of changes to the Legal Aid scheme contained in Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012. While the Government clearly does not want to make major changes to the scheme, the review did reveal issues to which the Government clearly feels it must respond. In February 2019 it published Legal Support: The Way Ahead – An action plan to deliver better support to people experiencing legal problems.

As a paper, it lacks the ambition or vision of other recent reports, in particular the Report of the Low Commission report on the future of legal services. But buried in the detail is a number of straws in the wind which are worth noting, even if they don’t make the heart race.

The Paper starts by repeating the point that the Government already provides ‘£1.6 billion to the most vulnerable in society to ensure that they can access legal aid’. It seems to accept, however, that there are some who – at least in some circumstances – should receive legal aid who currently do not get it. The Paper states that the Government ‘will conduct a review into the thresholds for legal aid entitlement, and their interaction with … wider criteria’. This review will be completed by summer 2020.

In the interim there will be changes to eligibility for some public family law cases, to be introduced in summer 2019.

And, whilst the review is ongoing, the Government  will continue with current arrangements to passport all recipients of universal credit through the legal aid means test.

Addressing the problem that people do not know about their entitlement to legal aid, the Government states that it ‘will ensure that more people are aware of their entitlement to legal support – and will advertise its availability’. The stated aim is to launch the awareness programme by autumn 2019 – dealing not just with legal aid, but legal support more generally.

The Government plans to make some changes to protect the most vulnerable. It will expand the scope of legal aid to include separated migrant children in Spring 2019. It also plans to bring forward proposals to expand the scope of legal aid to cover special guardianship orders in private family law by Autumn 2019.

As regards Exceptional Case Funding, the Government plans to consider, by the end of 2019, whether the process for applying for Exceptional Case Funding can be simplified, and whether decisions can be reached more quickly. It will also consider whether it is necessary to introduce a new emergency procedure for urgent matters to access Exceptional Case Funding.

By Spring 2020, the Government will amend the rules relating to the ‘mandatory telephone gateway’ so that there can be immediate access to face-to-face advice in discrimination, debt and special educational needs cases. (The telephone option is retained.)

The new Paper accepts that ensuring people can access the right legal support at the right time may help people resolve problems more efficiently and effectively. There is research evidence demonstrating how problems, if left undiagnosed and unresolved, can escalate, cluster, and lead to damaging cycles that are hard to break. However, the Government states that there is limited comprehensive research as to what works best, when, and for whom. Further, whilst it is often suggested that early intervention leads to cost savings, the financial and economic benefits of early advice are difficult to quantify with accuracy. The Government’s response to this challenge is that it wants to pilot and evaluate several different forms of early legal support.

Thus,

  • it will work collaboratively with providers to develop web-based products which bring a range of legal support tools together in one place;
  • it will improve the signposting advice and support available from the existing specialist telephone service and test enhancements to this service;
  • it will use funding to encourage the delivery of legal support through technology;
  • recognising that a comprehensive service may offer people an opportunity to support themselves, the Government will work collaboratively with the legal and advice sector to evaluate the impact of legal support hubs;
  • it will pilot face-to-face early legal advice in a specific area of social welfare law and will evaluate this against technological solutions, bearing in mind costs; and
  • it will enhance the support offered to litigants in person.

All these interventions will be researched to assess what is the best way to help and support those who need it, and whom should be assisted in the provision of legal support. The intention is that there should be outcomes from these initiatives by the end of 2019.

The Government states that it will continue to work across departments to help to improve the quality of decision-making on legal rights. It has been noted on numerous occasions that if decisions are ‘right first time’ this should reduce the need to take cases on appeal.

Key to the modernisation of the justice system is the need to ensure that forms and systems are as simple and straightforward to use as possible, and that the courts and tribunals service enables people to resolve their conflicts as quickly and early as possible. The Government wants to generate momentum in this area, but acknowledges that this is a first step.

It will be important for the Government to continue open and collaborative working with experts over the coming years, identifying and evaluating new ideas. One specific commitment is that the Government plans to set up a Legal Support Advisory Network to make use of external expertise, shape research and evaluation proposals, and potentially explore new research opportunities and collaborations.

As a nod to the problem of whether or not there will be sufficient numbers of people entering this sector of the legal services market, the Government states it will ‘support practitioners to join the legal profession and continue to deliver high quality legal support to people across England and Wales long into the future’.

Specifically there will be a comprehensive review of the criminal legal aid fee schemes and structures, to be completed by Summer 2020.

The full paper can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777036/legal-support-the-way-ahead.pdf

See also Press Release at https://www.gov.uk/government/news/government-sets-out-new-vision-for-legal-support

 

 

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Civil Liability Act 2018

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The Civil Liability Act 2018 makes significant changes to the personal injury compensation system. In outline, it has three principal objectives.

First, it changes the rules relating to claims for injury for whiplash (which arise when someone drives into the back of your car).  Measures in the Act will:

  • provide for a tariff of compensation for pain, suffering and loss of amenity for whiplash claims. The final tariff will be set in supporting regulations via the affirmative procedure following Royal Assent.
  • enable the court, subject to regulations, to increase the compensation awarded under the tariff
  • introduce a ban on seeking or offering to settle, whiplash claims without appropriate medical evidence

The purpose of these changes is to try to reduce the cost of motor insurance for motorists in general by reducing the numbers and amounts of such claims.

Second, it makes changes to the way in which what is called the Personal Injury Discount Rate is set. The new rules will

  • retain the 100% compensation principle which has long been a central part of the law, but modernise the calculation of the discount rate so that it reflects the reality of how claimants actually invest money. This provides a fairer and better way to set the rate for both parties
  • put the process of setting the rate on a statutory footing, with expert independent advice and a requirement for the Lord Chancellor to set it at least every 5 years, giving clarity and assurance to claimants and to those underwriting costs. The regular setting of the rate will ensure vulnerable people suffering life-changing accidents have their compensation adjusted by an up to date rate
  • create an independent expert panel, which the Lord Chancellor will be required, from the second review under the new legislation, to consult in relation to the factors he or she may consider in setting the rate. This will bring a wider range of expertise into the process

Thirdly. the Act  requires insurers to provide information to the Financial Conduct Authority so that the government can assess whether they have passed on savings as a result of the Act to their customers.

 

The whiplash changes were in particular strongly resisted by personal injury lawyers. Whether the rules achieve their objectives will have to await their implementation.
The whiplash changes are due to come into force in April 2020.
For further information on the legislation see https://www.gov.uk/government/publications/civil-liability-bill

Written by lwtmp

March 9, 2019 at 11:01 am

Review of legal aid for inquests

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Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.

In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.

In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.

Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of  families in the application and inquests process. In particular, it suggested:

  • the current legal aid application process might not be fully understood;
  • there were difficulties in understanding the eligibility criteria for legal aid; and
  • there were difficulties understanding the types of cases where funding may be available.

The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.

In relation to this point, however,  the Review concludes:

Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.

So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.

Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.

The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf

A press release is at https://www.gov.uk/government/publications/review-of-inquests

 

 

 

 

 

Written by lwtmp

March 8, 2019 at 12:50 pm

Post Implementation Review of LASPO 2012 Part 1 (reform of legal aid)

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February 2019 was a busy month for the Ministry of Justice.They published a large number of official documents relevant to the future of the English Legal System.

First up was the long-awaited post-implementation review of the legal aid changes brought about by Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), Part 1 which introducted major changes to the legal aid scheme. This is a very long document which concludes, broadly, that not much is going to change, at least in the short-term.

The key objectives of the reforms, as the Government saw them, were

  1. to reduce expenditure on legal aid;
  2. discourage unnecessary and adversarial litigation at public expense;
  3. target legal aid on those who need it most;
  4. deliver better overall value for the taxpayer.

The Review concludes, in the light of large amounts of evidence it received, that Objective 1 was successfully achieved. In relation to objective 2, the outcomes are unclear. There has been a reduction in clinical negligence litigation, now funded by Conditional Fee Agreements rather than legal aid; but family law litigation is increasing – diverting cases to mediation has not worked. The Review ‘cannot say with certainty’ whether objective 3 has been successful, as there in insufficient evidence from those outside the scope of the current legal aid scheme. They also cannot reach any conclusions regarding Objective 4.

A number of themes also emerged from the Review:

  1. Scope changes undermining value for money: LASPO removed many areas of early civil and family legal advice from the scope of legal aid, restricting it to the most serious cases. It is argued this lack of early intervention in social welfare and private family law generate wider costs as relatively minor legal problems can escalate and cluster into more serious problems.
  2. People who need legal aid cannot access it: LASPO did not substantially reform the financial eligibility requirements but lots of evidence was submitted arguing change was necessary.
  3. Exceptional Case Funding is not working:  There were lots of criticisms over how the scheme operates.
  4. Fees for legal aid work are inadequate:  Many practitioners, especially in criminal law, have argued this is affecting recruitment and retention, potentially creating future problems in provision.
  5. Increases in litigants in person generating costs: by removing funding for legal representation the volume of self-representing litigants has risen.
  6. Advice deserts: people may not able to access advice due to geographical remoteness, or a shortage of supply in their given area.

There was never going to be any chance that, despite the difficulties of assessing whether the objectives for the original legislation had been met and all the other issues the Review identified, the cuts made by LASPO would be restored. The Government has, however, taken modest steps which are worth noting and will be considered in future blog items.

The full report of the Review is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777038/post-implementation-review-of-part-1-of-laspo.pdf

 

 

 

 

Written by lwtmp

March 8, 2019 at 11:08 am

Reforming the parole board: new announcements

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In April 2018 I noted here the fact that the Government was planning to take steps to reform the ways in which the Parole Board goes about its work. In March 2019, the Government has published the conclusions it has reached so far on this work. The principal features of the new approach are:

  1. The Government will change the Parole Board Rules to create a new reconsideration mechanism so if there is a seriously flawed decision it can be looked at again without the need for judicial review. This is the most important change in the current round of reform proposals.
  2. The Parole Board will publish new Standard Practice documents which will make more transparent the considerations and approaches to decision making that should normally be followed
  3. Improved engagement and communication with victims will be delivered through changes to the Victim Contact Scheme, the commitments in the Victims Strategy published on 10 September 2018 (see this blog November 29 2018) and a revised Victims’ Code following consultation in 2019.
  4. The Government will replace the current Prison Service Instruction on the parole process with a new Policy Framework which will make improvements to timeliness and efficiency as well as ensure the published instructions are up-to-date and support the other reforms.
  5. A new Operational Protocol between the Parole Board and HM Prisons and Probation Service will be published which will clarify and make more open everyone’s roles and responsibilities; support better joint working; and reduce duplication.
  6. Provision will be made in the Rules for prisoners with mental health needs and learning difficulties, who lack mental capacity, to ensure a fair hearing, including the appointment of suitable representation if necessary.
  7. A Rules Committee will be created to oversee future Rule changes, ensuring the rules keep pace with wider developments, with input from key stakeholders including victim representatives.
  8. A further Review of the Parole Board will examine the future constitution of the Parole Board and whether more fundamental reform requiring primary legislation is needed.

Further information about these proposed reforms can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/775844/review-of-the-pb-rules-and-rm.pdf

A separate paper sets out in more detail how the proposed reconsideration mechanism will work. This is potentially an important change; its operation will need to be kept under review to ensure that it is an effective means of seeking reconsideration without the need for judicial review proceedings.

For further detail see https://www.gov.uk/government/consultations/reconsideration-of-parole-board-decisions-creating-a-new-and-open-system

 

 

Written by lwtmp

March 6, 2019 at 1:33 pm

Judicial decision making – tackling the problem of ‘cognitive bias’

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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.

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

 

 

 

 

 

Written by lwtmp

March 4, 2019 at 12:58 pm

What goes on in the Commercial Court?

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It used to be the case that the work of the Commercial Court and the Admiralty Court (now constituent parts of the Business and Property Courts of England and Wales) was the subject of an Annual Report. But there has been no such report for a number of years.

The lead judge of the Court, Mr Justice Teare, has now decided that the practice of providing Annual Reports should be revived. In February 2019, the first of the new series of reports, covering the year April 2017-March 2018, was published.

Although the number of cases coming before both the Commercial and Admiralty Courts is not that high, the value of these cases are often substantial. And a high percentage of the cases involve issues which have arising outside the UK. This reflects the fact that London is seen in many jurisdictions as the place where commercial disputes can and should be resolved – in turn reflecting the expertise of the major law firms based in London.

The report is available at https://www.judiciary.uk/wp-content/uploads/2019/02/6.5310_Commercial-Courts-Annual-Report_v3.pdf

 

 

 

 

Written by lwtmp

February 28, 2019 at 3:45 pm