Martin Partington: Spotlight on the Justice System

The concept of restorative justice has been around for sometime.

The idea is fairly straightforward. In the criminal justice context, restorative processes give victims the chance to tell offenders the real impact of their crime, to get answers to their questions about why they became vicitms of a crime, and an apology. Restorative justice holds offenders to account for what they have done, helps them  understand the real impact of what they’ve done, to take responsibility and make amends.

Restorative processes are also increasingly being used in schools, care homes and the wider community to address conflict, build understanding and strengthen relationships with young people. In these contexts it is also known by the names ‘restorative approaches’ and ‘restorative practices’.

Research from the Ministry of Justice suggests that restorative justice can help victims come to terms with what has happened to them and can reduce the rate of reoffending by offenders.

In November 2012, the Government published an action plan for restorative justice in the criminal justice system. It has also tabled amendments to the Crime and Courts Bill currently being discussed in Parliament, which will enable judges to defer sentencing a person convicted of a crime until after a restorative justice.

As a consequence of this measure,  restorative justice will then be accessible at every stage of the criminal justice process, from initial arrest through to prison, for those victims and offenders who are willing.

Research also showed that the use of restorative justice was very patchy. It is the clear intention of the Action Plan that its use should become more widespread through the criminal justice system.

To read the Action Plan, go to http://www.justice.gov.uk/downloads/publications/policy/moj/restorative-justice-action-plan.pdf

The use of restorative justice processes is promoted by a private charity, the Restorative Justice Council. For details of their work go to http://www.restorativejustice.org.uk/

In the book (Chapter 3) I note various ways in the legislative process has changed over recent years. At present, however, there is no mention of a new process of post-legislative scrutiny that has been in place for the last 2 or three years.

The idea of post-legislative scrutiny is fairly simple. After a period following the enactment of a new Act of Parliament the question should be posed: is the Act working as it was intended to do?

The idea has been floating around academic circles for many years. The House of Lords Constitution Committee considered it in 2004. Things moved forward significantly when the former Labour Administration asked the Law Commission to consider the issue and how it could be turned into a practical reality.

Its report was published in 2006; the then Government’s reponse was published in 2008.

Since then there has been a programme of post-legislative scrutinies.

The key features of the programme are:

• not all Acts of Parliament are subject to scrutiny;

• where there is scrutiny, the review is undertaken by the relevant Departmental Select Committee – it is a process driven by back-bench MPs, taking evidence and reaching conclusions as they do in other inquiries they undertake;
• the scrutiny process is started by the preparation within the Government department concerned of a memorandum on the Act of Parliament concerned being presented to the Select Committee, who then invite wider observations and inputs from outside government on the Act’s operation.

The Law Commission’s report is at:http://lawcommission.justice.gov.uk/docs/lc302_Post-legislative_Scrutiny.pdf

The Government’s response is at: http://www.official-documents.gov.uk/document/cm73/7320/7320.pdf

For an example of a current post-legislative scrutiny exercise, see the Justice Select Committee’s inquiry into the operation of the Freedom of Information Act. In relation to this, evidence has been sought and obtained; the final report is being written.
For further information see:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/
The Ministry of Justice’s memorandum which formed the basis for the inquiry is at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/

Clearly at some point there needs to be an evaluation of the scrutiny process. Are lessons being learned from the process which can be fed back into the legislative process?

In an earlier blog entry, I noted the preliminary work of the Legal Education and Training Review. They have now published an essay by one of their consultants, Professor Richard Susskind on the future of legal education.
In my view, anyone engaged in legal education should read this – students, lecturers, professional trainers, practitioners.
His principal argument is that the business and technological environment within which law is developing is changing so rapidly that the review must try to anticipate what the shape of legal education should be for meeting legal services that will be developed in the future. He fears that too many of those engaged in legal education neither know nor care about how the practice of law is developing, with the result that there may be more attention paid to the past and the present rather than the future.
He urges law teachers and legal practitioners to develop much better interactions – practitioners coming into the law schools to bring academic subjects alive; law teachers sitting in legal practices to see how client demand and technological change is reshaping practice.
He also wants law teachers to understand better the new types of paralegal practice which will be an important feature of the new legal services world.
The lecture can be downloaded and read at http://letr.org.uk/wp-content/uploads/2012/10/Susskind-LETR-final-Oct-2012.pdf

In October, the outgoing director of JUSTICE delivered an extremely thoughtful lecture on how legal services for the poor should develop, following the enormous cuts that will result from the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

In it he argues that there is no point in simply hoping that a future government will restore the cuts now being made; that is not going to happen.

Instead, we have to think much more creatively about how legal advice and support services are delivered – more imaginative use of Information Technologies, for example; and also more more thought about how we may law more understandable – so that people can understand more of their rights and obligations without the need for lawyer interpreters.

My own beef is that recommendations the Law Commission made relating to clarifying the terms and conditions on which landlords and tenants rent property – which affect a third of the population – could have re-engineered this very important and practical area of law, were not taken forward by government. The more general point is that if governments continue to enact protective legislation – which is an important past of their work – it must be done in a way that is meaningful to the people directly affected, not just to the lawyers who will no longer be on hand to assist.

The lecture is extremely stimulating. Not everyone will agree with what it says. But it is worth reading. You can download the text at http://www.justice.org.uk/data/files/resources/332/After-the-Act-what-future-for-legal-aid.pdf

After the initial flurry of activity at the beginning of 2012, when the first round of ABS licences were granted by the Solicitors Regulatory Authority (see blog entry in March 2012) and the Co-op announced its plans for the development of its legal services offer (see blog entry May 2012), there has been sure and steady progress on the ABS front.

Russell Jones and Walker, together with an Australian Firm, Slater and Gordon have a licence to develop ABS, based on their merged business.

Irwin Mitchell, a large UK based law firm, have acquired 3 ABS licences to develop their practice – they have been widely reported as intending to raise private capital by a flotation on the Stock Exchange.

The current list of firms granted ABS licences is available at http://www.sra.org.uk/absregister/

As well as ministerial changes there have been changes in two of the top judicial jobs.

Lord Phillips, who was the first President of the Supreme Court, reached retirement age this autumn. He is replaced as President, from 1 October 2012, by Lord David Neuberger – who was formerly the Master of the Rolls. See http://www.supremecourt.gov.uk/news/new-president-of-the-supreme-court.html.

The resultant vacancy as Master of the Rolls is filled by Lord John Dyson, currently a member of the Supreme Court. See http://www.number10.gov.uk/news/appointment-of-master-of-the-rolls/

Over the summer, the Prime Minister shuffled his ministerial team. Ken Clarke, the former Lord Chancellor, was one of the minister to lose his job (though he remains in the Cabinet).

Replacing him is Chris Grayling. You can read a bit about him at http://www.justice.gov.uk/about/moj/departmental-board/chris-grayling-mp.

Press coverage suggests that Grayling is likely to be ‘tougher on crime’ than his predecessor – a reputation arising from the time he was the Shadow Home Secretary before the arrival of the Coalition Government.

I’m not so sure. While his predecessor sought to argue for changes in penal policy based on their efficacy, he was also seeking to save money – putting people in jail is expensive. The need for public expenditure cuts remains – so it is not clear how far Grayling will be able to lock more people up, even assuming that that is what he wants to do.

Recent press stories suggest that Grayling’s first challenge will be to try to get the judiciary to accept a cut in their pension entitlements (in fact a process started by Clarke). Now that is a challenge. See, e.g. http://www.solicitorsjournal.com/node/14064

First, welcome to all the new students starting on their law courses. Wherever you are studying, have a great time.

The legal system is currently undergoing great change. The practice of law is also undergoing great change. In Introduction to the English Legal System I offer an account of those changes which will affect everyone graduating in 3/4 years time. But the pace of change is so rapid that it is hard to keep track of everything.

Use this blog to pick up key developments; but also visit the linked blogs for additional information and ideas. Let me know if there are things you would like to read more about and I’ll try to address them.

At the same time, the new legal year starts. If you are standing outside Westminster Abbey on the morning of 1 October you will see all the judges in their robes arriving for the service that marks the beginning of the legal year – followed by what is known as the Lord Chancellor’s Breakfast (even though it is in the middle of the day!)

Don’t be misled by all the formality and pomp, which may suggest that the legal system is ticking on just as it has done for the last 100 years. In fact, the judicial system is also undergoing great change – changes also considered in my book and in this blog.

For students and those entering the law, all this change offers great opportunity for innovation and development. What I would encourage you to do is think how things might be done differently and more efficiently; what are the varietes of opportunity that law offers; and how can you contribute to increasing access to justice.