Martin Partington: Spotlight on the Justice System

Major proposals for the reform of the family justice system are recommended in a detailed report of the panel chaired by David Norgrove. It was particularly shocked by the current delays in the system. It argues that everyone involved in the family justice system should consider how their own functioning might be improved.

In summary, the review recommends:

Changes to the system

• The creation of a new Family Justice Service to make sure agencies and professionals work together to make positive improvements in the system for children and families.
• More judges who are specialists in family law to hear cases from start to finish to ensure consistency and confidence in the system
• A simplified court structure making it easier for people using the courts to know where to go
• More child focus and better training for professionals to make sure children’s views are heard.

Changes to public law ( which deals with the protection of children and taking them into care) to deliver more quickly for children:

• A six month time limit for all cases, save in exceptional circumstances
• Less reliance on unnecessary expert witnesses and reports
• Refocusing the courts on the core issue of determining whether the child should go into care.

Changes to private law (arrangements about children and money following separation and divorce), to create a simpler service for families who are separating, aimed at helping them and their children focus on reaching a safe, joint agreement, if possible, without going to court:

• A single online and phone help service to make it simpler for people to decide the most appropriate way forward and increase clarity of understanding
• Use of Parenting Agreements and a new ‘child arrangements order’ to bring together arrangements for children’s care after separation, focusing on the child rather than ‘contact’ and ‘residence’
• Increased provision of mediation to prevent cases going to court unnecessarily.

The report also recommended significant investment in IT to improve the efficiency of court processes.

One controversial issue which the review does not pursue was the idea that there should be a legal presumption in favour of ‘shared parenting’. Evidence from countries where this had been introduced suggested that such a legal presumption did not ensure that the best interests of the child – the fundamental legal test in all children’s cases – were always taken into account as fully as they should be.

The Government’s detailed response to the report will be available in due course. There are significant tensions between what is recommended here and the changes proposed to the legal aid scheme which may affect the extent to which the Government will actually adopt the recommendations.

For further information: see http://www.justice.gov.uk/news/press-releases/moj/moj-newsrelease031111a.htm

The full report is available at http://www.justice.gov.uk/downloads/publications/policy/moj/family-justice-review-final-report.pdf

One of the consequences of government funding cuts was the elimination of financial support for the Public Legal Education Network – a group that was doing important and innovative work to promote better public understanding of law.

Frankly I was not sure where this initiative had got to. However in the last couple of days I received a newsletter telling me that the network has reconstituted itself as Law for Life: the Foundation for Public Legal Education and that there will be a relaunch of this work in early 2012.

Among other recent activity, they have secured funding for participating in research into adult legal education in Europe; they are about to publish the results of work they have done with Bristol University; and they continue to promote the Street Law programme.

Full details are still on their old website: http://www.plenet.org.uk/
but you can sign up to their newsletter to keep in touch with developments as they unfurl.

Although the future of the Administrative Justice and Tribunals Council has for some months appeared to be doomed, the wisdom of this decision – given the trivial amount of public expenditure that will be saved – is still being called into question. The latest body to get involved is the House of Commons  Public Administration Select Committee (PASC) which has decided to undertake an inquiry into the Government’s plans for future oversight of the administrative justice system.

It will not be a long inquiry – just one day of oral evidence from both the Ministry of Justice and from the Council – plus consideration of any written evidence that may be submitted. Anyone interested in contributing to this last ditch endeavour needs to be quick; evidence must be with the Committee by 11 November 2011.

Further details are at http://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-select-committee/news/administrative-justice-inquiry/

In (probably) its  dying days, the Administrative Justice and Tribunals Council – earmarked by the Coalition Government for abolition – has decided to go down, all guns blazing. In its latest report, Securing Fairness and Redress: Administrative Justice at Risk?, published on 21 Oct 2011,  it gives a stark warning that principles of fairness and the right to challenge decisions perceived not to be fair or lawful – which have been a hallmark of public administration for decades – are currently under serious threat.

In the words of the report:  ‘ In an age where so much emphasis is rightly placed on empowering people, on improving public services and on upholding the Rule of Law, it is astonishing that there is so little focus on the system for ensuring that the State gets it right in its dealings with individuals and families.’ Complaining that administrative justice is the ‘Cinderella service’ of the justice system, the Council warns that the current programme of austerity will reduce the quality of much administrative decision-taking, while at the same time make it much harder for those adversely affected by bad decisions to challenge them.

This latest report – which presents an overview of the current position – notes that three times as many cases are decided by tribunals each year as go before the criminal courts; yet all the focus of policy making is on the criminal justice system. This despite the fact that the administrative justice system deals with key questions affecting the individual – liberty, employment, housing and even, in asylum cases, with matters of life and death.

The Council acknowledges that there is no reason why new ways of deciding cases should not be tried – cutting public expenditure can be an opportunity for developing new and possibly better procedures. But it argues that at just the time when the Council’s expertise would be most useful, its voice is going to be silenced under the quango cutting programme.

The report sets out an agenda for long-term strategic change  the administrative justice system:

• better and more stable laws and regulations, especially in the areas of welfare benefits and immigration;
• a ‘Right First Time’ culture in government decision-making;
• proper access to help, advice and representation for citizens pursuing redress against government decisions;
• further reforms to ensure coherent access to administrative justice across the whole of the UK;
• new and proportionate models for resolving disputes faster and in more user-friendly ways.

The full text of their excellent report is at http://www.justice.gov.uk/ajtc/docs/AJTC_at_risk_%2810.11%29_web.pdf

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

Much discussion in the media – especially the print media – about the Human Rights Act and its impact on the UK is conducted in an extremely shrill  tone,  and is sometimes not as well informed as it should be. It is therefore worth looking out for more sober appraisals of the working of the legislation. The Ministry of Justice publishes a (more or less) annual survey – both of cases where the UK government has been taken before the European Court on Human rights, and where the UK Courts have made declarations of incompatibility. The latest of these reports was published in September 2011.

This shows that the number of cases where the UK is a party before the ECtHR is very small (though the issues are important – e.g. the case on the voting rights of prisoners), and that there have been very few declarations of incompatibility – only 27 in 10 years, about half of which were not supported by the Supreme Court (formerly House of Lords).

The review of recent developments can be seen at http://www.justice.gov.uk/downloads/publications/policy/moj/responding-to-human-rights-judgments.pdf

The current review by the Commission on a Bill of Rights http://www.justice.gov.uk/about/cbr/index.htm is specifically required not to consider the withdrawal by the UK Government from its obligations under the convention. But it has recently published interim advice to Government supporting the view that the Strasbourg Court is in need of serious reform if it is not to grind to a complete halt. The advice may be seen at http://www.justice.gov.uk/downloads/about/cbr/cbr-court-reform-interim-advice.pdf