Martin Partington: Spotlight on the Justice System

At last some detailed policy proposals which will directly impact on the English Legal system are starting to emerge from the Coalition Government. The first, considered here, is a consultation paper on the reform of legal aid. This is accompanied by another consultation paper on costs in civil cases.

The legal aid consultation is actually quite dense and difficult to summarise. The following has been adapted from the MoJ Press Release. It should be noted that, because of the need for legislation to make many of the changes, they are unlikely to come into effect before April 2012. Further, policy on legal aid always attracts detailed attention from lobby groups – in particular the lawyers and the advice sector. It is likely that there will be changes of detail before the final package is introduced. The MoJ estimates savings of around £350m if the changes were introduced without modification. The main changes proposed are:

• Criminal Legal Aid. Retaining legal aid for those criminal cases where it is currently available, in order to ensure fair trials for those accused of more serious criminal offences can access the representation required to provide a fair trial.

• But: Changes will be made to the way that lawyers are paid in criminal cases in order to promote an efficient system of justice and to ensure that the taxpayer is receiving the best possible value for money. The intention is to move towards a competitive market to replace the current system of administratively set fee rates.  In the meantime, there is a series of proposals designed to promote swift and efficient justice as well as to achieve savings.  These include proposals to pay the same fee in respect of a guilty plea in the Crown Court regardless of the stage at which the plea is entered.  In Crown Court cases that could realistically have been dealt with in the magistrates’ courts, it is proposed to pay a single fixed fee for a guilty plea based on fee rates in the magistrates’ court.  This complements other reforms to the justice system designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and the justice system significant but avoidable costs; and

• To contain the growth in costs of the most expensive (Very High Cost Criminal Cases – VHCCCs) we propose to bring the arrangements for solicitors in VHCCCs into line with those the last Government introduced for advocates. This will mean that more of these cases will be paid within a graduated fee scheme where costs are more easily controlled.

• Civil Legal Aid. Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where they are at risk of serious physical harm, or immediate loss of their home.  For example, legal aid will be retained for asylum cases, for debt and housing matters where someone’s home is at immediate risk, and for mental health cases.  It will still be provided where people face intervention from the state in their family affairs which may result in their children being taken into care, and cases involving domestic violence or forced marriage.  It is also proposed to retain legal aid for cases where people seek to hold the state to account by judicial review, for some cases involving discrimination which are currently in scope, and for legal assistance to bereaved families in inquests, including deaths of active service personnel.

• But: Clear choices are proposed in order to introduce a more targeted scheme which directs limited resources to serious issues in civil and family cases which have sufficient priority to justify the use of public funds, subject to people’s means and the merits of the case.
• Thus, some types of cases will no longer routinely qualify for legal aid funding.
  • This  include private family law cases, for example, divorce and child contact, where long-drawn out and acrimonious cases going through the courts can often have a negative impact on the well-being of any children and not necessarily achieve the most effective result.  Funding for cases where domestic violence is involved will, however, continue to receive funding.  And funding will also continue to be provided for mediation as a better alternative to family disputes going to court in most cases.
  • Other civil cases which will no longer routinely qualify for legal aid funding include clinical negligence, where in many cases alternative sources of funding are available, such as “no win no fee” arrangements (Conditional Fee Agreements).
  • Other issues proposed for removal from the scope of the legal aid scheme include debt, education, employment, housing, immigration and welfare benefits (except where there is a risk to anyone’s safety or liberty or a risk of homelessness), where in many cases the issues at stake are not necessarily of a legal nature but require other forms of expert advice to resolve.

• Legal aid funding may still exceptionally be provided for individual cases through a new funding scheme for excluded cases, generally only where it is necessary to meet our domestic and international legal obligations, for example, in a particularly complex clinical negligence case involving a disabled claimant who cannot represent themselves where access to the court could not otherwise be secured.

• In addition, changes will be made to means testing for non-criminal legal aid.  These seek to ensure that those who, on the basis of their disposable capital or income, can pay or contribute towards the costs of their case should be asked to do so.  The proposals include ensuring that all civil legal aid applicants undergo an assessment of their available capital, including those on benefits.  Greater account will also be taken in future of equity in people’s homes when assessing their capital means.  A minimum £100 contribution to their legal costs will be introduced for all successful applicants with £1,000 or more disposable capital, and higher contributions will be expected from those who currently contribute to their legal fees.

• In order to strike a better balance between using tax payers money efficiently, and ensuring that people can access legal aided services where necessary, fees paid in civil and family cases will be reduced by 10% across the board.  It is also proposed to extend lower legal aid ‘risk rates’ in civil cases where costs are likely to be paid by the opponent, pending the introduction of competition once any proposed changes to the scope of civil and family legal aid have bedded in.   Similar levels of reductions are envisaged in experts’ fees to exert greater control over costs.

• Legal advice: Telephone services will be extended to help people find the easiest and most effective ways to resolve problems.

• The paper also consults on suggestions for alternative sources of funding for the legal aid fund, to help supplement existing funding arrangements.  These include making use of the higher rates of interest generated by money invested in a new pooled account where solicitors would hold their clients’ money, and recovering a proportion of legal aid funds in cases where a successful claim for damages has been made.
• Views are also sought on how to make the administration of legal aid more efficient and less bureaucratic for solicitors and barristers doing legal aid work.

So – the proposals combine suggestions for taking cases out of the legal aid altogether, getting clients to pay more, and reducing the money lawyers receive.

It is worth noting that the effect of the proposals relating to legal aid in family cases appear rather to preempt the conclusions that the current inquiry into the family justice system might come up with when in reports in 2011.

The proposals for devising supplementary sources of funds for legal aid could result in some further significant changes. What is not clear from the paper is the extent to which new models for the delivery of legal aid, which have been promoted by the Legal Services Commission, will be sustained.

The consultation paper is at http://www.justice.gov.uk/consultations/legal-aid-reform-151110.htm

The consultation runs until 14 February 2011

The main review of public bodies (see ‘Bonfire of the Quangos’) left open the question whether the judicial appointments system put in place by the former Labour Government would be retained. The Lord Chancellor announced on 10 November 2010 that it would be kept, though it would be expected to make savings. Further proposals will be announced in early 2011 on how the whole process of judicial appointment may be sharpened up.

Slowly the shape of the reforms to the justice system that will be introduced over the life of the Coalition Government are beginning to emerge. On 8 November, the Ministry of Justice published its first business plan. The principles it contains are:

“1. Introduce a rehabilitation revolution by  creating a system introducing greater involvement of the private and voluntary sectors in the rehabilitation of offenders, including use of payment by results, to cut reoffending

2. Reform sentencing and penalties to ensure that the justice system reduces reoffending by introducing more effective sentencing policies and considering the use of restorative justice for adult and youth crimes

3. Reform courts, tribunals and legal aid, and work with others to reform delivery of criminal justice. This includes reforming the legal aid system to make it work more efficiently, while ensuring that government provides necessary support for those who need it most and for those cases that require it. Develop court reforms to improve the resolution of disputes, maximise efficiency and improve services and work with others to make delivery of criminal justice more effective and efficient

4. Assure better law by making law-making  transparent and accountable, safeguarding civil liberties and enabling citizens to receive the proper protection of the law

5. Reform how we deliver our services by reassessing the Department’s ways of working to develop more efficient shared services, matching provision ever more closely to demand, reducing duplication and streamlining functions wherever possible.

The Department will no longer  provide rehabilitation services directly without testing where voluntary or private sectors can provide it more effectively and efficiently nor run underutilised and inefficient court buildings.”

There is more detail in the accompanying document (see link below). What is immediately striking is, first, that the timetable for many of these important developments is already slipping – a number of tasks due for completion by the end of October are still awaited.

Secondly, the programme is very aspirational. Re-offending will not fall just because government wants to see it fall. There must be doubts about whether the investment in resources to prevent re-offending will be available.

Third, cuts in legal aid will be a real challenge if those who need help are to get it.

Fourth, increased use of ADR is unlikely without compulsion, something the ADR community has resisted till now.

However, as with the targets set by the previous Government, there is a statement of outcomes which can be reviewed as time passes. There is certainly a very challenging programme of work implied in the plan which – if all implemented – will reflect great determination by both Ministers and officials.  One of the biggest challenges will be to ensure that cross government issues are properly and efficiently addressed.

I will keep you up-to-date!

The details are available at

http://www.justice.gov.uk/business-plan-2011-15.htm

Although it is for the chop, the Administrative Justice and Tribunals Council is not going quietly. It has just produced a report setting out seven principle of administrative justice that all those delivering services to the public should bear in mind.

The Council says that a good administrative justice system should:

• make users and their needs central, treating them with fairness and respect at all times;

• enable people to challenge decisions and seek redress using procedures that are independent, open and appropriate for the matter involved;

• keep people fully informed and empower them to resolve their problems as quickly and comprehensively as possible;

• lead to well-reasoned, lawful and timely outcomes;

• be coherent and consistent;

• work proportionately and efficiently;

• adopt the highest standards of behaviour, seek to learn from experience and continuously improve.

While these may seem in many ways obvious, it is surprising how often these basic messages are forgotten. Their report also contains a self-assessment toolkit, which administrators can use as a template against which they can measure their organisation. This is the sort of valuable work that will be lost once the Council finally disappears.

For more detail, see:
http://www.ajtc.gov.uk/docs/principles_web.pdf

Louise Casey, the Government’s Commissioner for Victims, has just delivered a controversial lecture on changes she thinks are needed in the criminal justice system. She makes two proposals:

• removing the right to trial by jury for what she calls petty crimes; and

• stopping ‘cracked trials’ which waste a lot of public money.

As I discuss in chapter 5 of the book, the first proposal is not new; but it always runs up against the ‘thin end of the wedge’ argument – that if you start to take away the right to jury trial, this will be the start of a process that will abolish jury trials. What is interesting about Casey’s intervention is that she wants money save to be diverted to better victim support.

The second proposal – trying to stop cracked trials – seems to me to be quite hard to achieve in practice. Her proposal that lawyers should receive no more than a fixed fee, whenever a guilty plea is entered, seems to me likely to encourage more people to continue to plead not guilty and therefore ultimately add to the cost of criminal justice.

However the Director of Public Prosecutions has also recently fingered cracked trials as an issue that needs addressing because of the waste of resources cracked trials involve.

It may be that between them, the Commissioner and the DPP will discover a workable way to cut down cracked trials and make sensible savings.

For further info, including a link to a youtube version of the Commissioner’s speech, see:
http://www.justice.gov.uk/about/victims-commissioner-news.htm

So, the Coalition Government has now published its decisions on what public bodies are to be kept, what are to go. Here I comment on the decisions through the specific lens of the English Legal System.

The two highest profile casualties of the cull are the Youth Justice Board and the Administrative Justice and Tribunals Council.

The YJB did have a bit of a reputation for clashing with Government on issues relating to young offenders and how they should be treated in the criminal justice system; presumably  policy will now be taken into the Ministry of Justice. The justification is that this change is wrapped up in a wider review of criminal justice. My view is that the independent voice of the Board will be missed and that Government will still need expert external input into policy making. We shall see.

The Administrative Justice and Tribunals Council, created out of the former Council on Tribunals, had a broad remit to keep administrative justice under review. Given the importance of getting the relationship between the citizen and the state right, ensuring that government operates according to principles of good administration is vital. The Council played a key role in ensuring that different agencies communicated with each other. This facilitative role was particularly important and I think it will be missed.

For me, the most intriguing announcement is that  the whole edifice of independent judicial appointments, created by the previous government, is stated to be under consideration. The new process has not been welcomed by many lawyers but has made judicial appointments more transparent – need to watch this space on this one!

Similarly the future of the Office of the Children’s Commissioner is also under review – an announcement is expected in November 2010.

The public bodies review has usefully tidied up a number of tribunals and brought them into the Tribunals Service. The Residential Property Tribunal Service and the Valuation Tribunal Service, which in my view should always have been in the Tribunals Service, are now to be incorporated. A number of other tribunals are still under consideration for inclusion in the Tribunals service, including the ever popular Plant Varieties and Seeds Tribunal.

The Parole Board has been spared, but its future status and functions are still under review.

The Victims Commissioner is retained, but the Victim’s  Advisory Panel is abolished.

The published list confirms the abolition of a number of bodies which had been announced earlier: these include HM Inspectorate of Court Administration; the Legal Services Commission (not to be confused with the Legal Services Board, which is retained); the Legal Services Ombudsman; and the National Policing Improvement Agency.

On balance, my view is that the legal institutional landscape has changed less than might have been expected. There has actually been some sensible rationalization, particularly in the tribunals world. But I think that the Youth Justice and Administrative Justice worlds have been weakened by the changes.

Full details at http://www.number10.gov.uk/news/latest-news/2010/10/public-body-review-published-55604

The new Legal Ombudsman – a post created by  Office for Legal Complaints under provisions contained in the Legal Services Act 2007 – started work on 6 October 2010. It replaces a ‘system’ in which 8 different bodies had responsibility for handling complaints about lawyers. The first holder of the office is Adam Sampson. He has a staff of around 350 who investigate complaints received by his office.

For further information see http://www.legalombudsman.org.uk/

Two recent news items have considered the use of mediation as a form of Alternative Dispute resolution. In the first, Jeremy Tagg an official in the Ministry of Justice, was presented with the Lord Slynn Mediation Prize for leading a drive to see more disputes settled out of court.

He was picked as winner for his role in the development of both the National Mediation Helpline (NMH) and the HMCS Small Claims Mediation Services (SCMS).

The SCMS has conducted more than 10,000 mediations in each of the past two years and continues to receive exceptionally high levels of customer satisfaction – 98 per cent of users say they are satisfied or very satisfied with the professionalism and helpfulness of the mediators and 95 per cent say they would use the service again

The second relates to statements recently made on the Today programme by Jonathan Djangoly, Justice Minister, urging greater use of mediation in Family disputes. Some family practitioners might take issue with his assertion that family lawyers are not sufficiently aware of mediation to resolve family disputes.

Nevertheless, it is still the case that there is a lack of awareness of the potential of mediation to resolve disputes and an assumption (at least by lawyers) that it is being promoted simply to reduce costs; there is considerable evidence, however, that mediation – when properly used – promotes better outcomes for parties.

Further details on both announcements can be found on the Ministry of Justice website

Although the results of the Government’s Comprehensive Spending Review are not officially published until 20 October 2010, the widely publicized leaks of the quangos that are likely to be axed suggest there could be some significant change in the legal landscape.

Many of the bodies considered in my book are under threat: they include the Administrative Justice and Tribunals Council, the Civil Justice Council, the Family Justice Council, the Legal Services Commission, many of the Boards that look after local courts, a number of tribunals – even the future of the Law Commission is, according to reports, not secure.

For the list as published in the Daily Telegraph see: http://www.telegraph.co.uk/news/newstopics/politics/8021780/Quango-cuts-full-list-of-bodies-under-review.html