Big bang for legal services?
Unlike the stock market changes some years back, when a revolution in trading practice took place overnight, the potential revolution in the delivery of legal services is taking place at a considerably more gentle pace. But an important step forward was taken on 3 Jan 2012, when the Solicitors Regulation Authority acquired the right to licence new forms of legal practice, envisaged by the Legal Services Act 2007 and the Clementi Report that preceded it.
Press stories have indicated, for example, that there is at least one firm of solicitors contemplating a share flotation to raise the capital it regards as necessary to expand its businesses. The co-op is widely reported to be wanting to add the provision of legal services to its portfolio of service activity (such as banking and funeral directors).
Well the ground is now clear for these necessary permissions to be sought. My expectation is that overall progress will be slow to start with, but that as lawyers begin to see the opportunities offered by new business models, there will be a gradual transformation in the legal services market.
The Ministerial claim that consumers will benefit from a more competitive legal services market will not be realised overnight; but I am sure that in 5 years time, there will be considerable change. Watch this space.
Shaping legal services: interview with Crispin Passmore, Legal Services Board
In this podcast I talk to Crispin Passmore, Strategy Director at the Legal Services Board, about the work of the Board – discussed in Chapter 9 of the book. He talks about the background to the establishment of the Board, and how its work has developed since the Legal Services Act 2007 came into effect.
In the course of the discussion we consider a number of themes. First, what is ‘public interest’ in the provision of legal services. Historically, there has been a close alignment of public interest and professional interest; this is now changing. Crispin refers to a paper on this, available at http://www.legalservicesinstitute.org.uk/LSI/Legal_Services_Regulation_and__the_Public_Interest_/.
Second, Crispin emphasises the need for legal services to be delivered in ways which the users of those services – members of the public – feel comfortable with. This may result in big changes to the ways in which lawyers currently deliver services and deal with complaints from clients.
Third, Crispin talks about ABS – the alternative business structures – that are going to affect legal service delivery. They will provide, he argues, enormous opportunities for those willing to seize them. There will be significant developments in 2012.
To hear the podcast go to http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Passmore.mp3
Abolition of more committal hearings: offences triable either way
In the book I discuss how the more serious criminal cases, all of which start in the magistrates’ courts, get to the Crown Court. it used to be the case that cases would only be transferred after a committal hearing. Committals in indictable-only cases were abolished and replaced by a process known as ‘sending’ under section 51 of the Crime and Disorder Act 1998. This enables cases to be sent straight to the Crown court after the defendant’s first appearance in the magistrates’ court.
The Criminal Justice Act 2003 made provision for the same procedure to be adopted in cases that could be tried either way, where it was decided that they would be tried on indictment. The relevant provision has not to date been implemented, but the Secretary of State for Justice has now decided to bring this provision into effect from April 2012. It is estimated that this will reduce the number of committal hearings by around 60,000.
Defence lawyers are furious that, in anticipation of the change they will no longer be paid for committal hearings; this decision is currently the subject of a judicial review.
Digitalising the criminal justice system: Virtual courts and ‘Live Links’
In 2009, the Ministry of Justice started to use communication technologies to create, initially on an experimental basis, virtual courts. They enable a defendant, charged in a police station, to have their first hearing held over secure video link from the magistrates’ court. This can happen within hours of being charged and if the defendant pleads guilty, the court can often sentence on the same day.
The same equipment allows police witnesses to give evidence in court via the police station. This initiative, known as ‘Live Links’, began in July 2011. It allows for the police to free up time to carry out frontline duties rather than travelling to and from court.
Defence lawyers are concerned that the initiatives created problems. In particular, they aregue that the police still need to address fully the issue of how officers exhibit live evidence, such as their notebooks, when they are physically not present.
However, the Government is so convinced of the value of these two related initiatives that the announced at the end of November 2011 that by spring 2012, the entire criminal justice system is required to go digital, with secure electronic transfer of case files between the police, prosecutors and courts becoming the norm rather than the exception.
For more details see: http://www.justice.gov.uk/news/press-releases/moj/newsrelease281111a.htm
Handling complaints against lawyers; interview with Adam Sampson
In this podcast, I talk to Adam Sampson, Chief Legal Ombudsman. We discuss the work of the Legal Ombudsman, how it operates, the kinds of issue it deals with, and some of the limitations the office has to deal with matters raised by dissatisfied clients. He stresses the importance, in a rapidly changing legal environment, of firms learning from complaints, so that they can improve their services to the public.
Full details of the work of the Office can be found at http://www.legalombudsman.org.uk/
To hear the interview, go to http://fdslive.oup.com/www.oup.com/orc/resources/law/els/partington13_14/student/podcasts/Sampson.mp3
Youth Justice Board wins reprieve
At a late stage in the debates on the Public Bodies Bill, the Government announced that it would reverse its original decision to abolish the Youth Justice Board. Many voices had been raised against taking the functions of the Board into the government machine. (Incidentally, I am always puzzled as to why ministers making ‘U-turns’ is regarded as a bad thing; if they are responding to well argued alternatives should they not be applauded?)
A closer look at what Ministers said, however, shows that while the YJB is being retained, they will be reviewing the particular role that it plays in the youth justice system. Obviously these new ideas will take some time to emerge.
I will keep you posted.
Appointments and Diversity: ‘A Judiciary for the 21st Century’
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
Surveillance in the digital age
In 2000, Parliament enacted the Regulation of Investigatory Powers Act. At the time, it was acclaimed by government ministers as Human Rights Act compliant, and was presented as forward-looking legislation. The Protection of Freedoms Bill, currently before Parliament contains provisions to tighten up the use of covert investigatory techniques. And a recent report from JUSTICE makes a strongly argued case for fundamental reform of the regulation of surveillance.
The principal findings in the report are:
• Since RIPA came into force in 2000, there have been:
– more than 20,000 warrants for the interception of phone calls, emails, and Internet use;
– at least 2.7 million requests for communications data, including phone bills and location data;
– more than 4,000 authorisations for intrusive surveillance, eg, planting bugs in someone’s house
or car;
– at least 30,000 authorisations for directed surveillance, eg, following someone’s movements in
public, or watching their house.
• In total, there have been close to three million decisions taken by public bodies under RIPA in the last decade.
• This does not include the number of warrants and authorisations on behalf of MI5, MI6 and GCHQ, which have never been made public.
• Of the decisions we do know about, fewer than 5,000 (about 0.16 per cent) were approved by a judge.
• The main complaints body under RIPA, the Investigatory Powers Tribunal, has dealt with only 1,100 cases in the last decade and upheld only ten complaints.
• Surveillance is a necessary activity in the fight against serious crime. It is a vital part of our national
security. It has saved countless lives and helped convict hundreds of thousands of criminals.
• But unnecessary and excessive surveillance, however, destroys privacy and blights our freedoms.
• RIPA has not only failed to check a great deal of plainly excessive surveillance by public bodies over the last decade but, in many cases, inadvertently encouraged it. Its poor drafting has allowed councils to snoop, phone hacking to flourish, privileged conversations to be illegally recorded, and CCTV to spread. It is also badly out of date.
• The conclusion is that RIPA is neither forward-looking nor human rights compliant. Piecemeal amendments are no longer
enough for what is already a piecemeal Act. Root-and-branch reform of the law on surveillance is needed to provide freedom from unreasonable suspicion, and put in place truly effective safeguards against the abuse of what are necessary powers.
• This report sets out a series of recommendations to serve as the basis for a draft Surveillance Reform Bill.
The full report is at http://www.justice.org.uk/resources.php/305/freedom-from-suspicion
Removing the MP Filter
One of the curiosities of the Ombudsman in this country is that members of the public are not permitted to take complaints about government maladministration direct to her. They have to start by going to their Member of Parliament; only if the MP agrees to refer the case will the Ombudsman be able to take it on. (The ‘filter’ does not apply to her health service complaints.)
For many years, it has been argued that the filter is unnecessary and this summer the Ombudsman consulted on whether the time had come to remove the filter. Today, she reports that the overwhelming consensus of opinion is that this time has come.
Following a recent report from the Law Commission, calling for a more general review of public service ombudsmen, it seems as though there might be an opportunity to make the requsite changes to the law. It won’t happen overnight – but would be a sensible reform that would improve access to the Ombudsman.
For access to the Ombudsman report go to http://www.ombudsman.org.uk/about-us/media-centre/press-releases/2011/new-report-from-parliamentary-ombudsman-says-reform-of-the-mp-filter-is-long-overdue
For the Law Commission report see http://www.justice.gov.uk/lawcommission/publications/ombudsmen.htm
What legal services should be regulated?
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
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 