Posts Tagged ‘access to justice’
Developing policy on Alternative Dispute Resolution
Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.
In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.
In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.
Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.
It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.
The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.
The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.
Review of pre-action protocols in civil litigation – consultation from the Civil Justice Council
When Lord Woolf published his landmark report, Access to Justice, way back in 1996, one of his aims in making his recommendations for changes to civil procedure was to encourage parties contemplating litigation to put their cards on the table. This way, Lord Woolf thought, litigants might be able to come to their own settlement of the issues in dispute between them, rather than incurring the costs of an actual court hearing. Woolf argued that the courts should be the ‘forum of last resort’.
One of the methods for encouraging parties to come to the negotiating table was through the creation of pre-action protocols (PAPs) – steps that should be taken before formal legal proceedings started. Over the years 17 separate pre-action protocols have been developed for different categories of proceeding.
There have, however, been criticisms of PAPs. For example, it was argued that they created additional expense; they caused delay (both things Woolf sought to avoid); they were not effectively enforced by judges.
In October 2020, the Civil Justice Council announced that it was going to review the operation of PAPs.
According to the Press Release issued at the time: “The review will look at all aspects of PAPs including their purpose, whether they are working effectively in practice and what reforms, if any, are required.”
It went on to state that the Civil Justice Council was particularly interested in looking at how PAPs are working for litigants with limited means; the costs associated with PAP compliance; the potential of PAPs in online dispute resolution, and the potential for PAPs to be streamlined.
Although the Civil Justice Council did set out provisional Terms of Reference for their inquiry, it also said that the focus of the review was not closed. As a first step, the CJC decided to conduct a preliminary survey to obtain feedback and suggestions about what ought to be the focus of the review, and the priorities for reform. This was started in October 2020, and ran until December 2020.
The announcement of the review is at https://www.judiciary.uk/announcements/civil-justice-council-launches-review-of-pre-action-protocols/
The results of the initial survey are awaited.
Proposed Constitution, Democracy and Rights Commission
One proposal that caught the eye in the Conservative Party’s manifesto for the December 2019 general election was that, following the UK’s withdrawal from the EU, it would be necessary to look at “broader aspects” of the UK’s constitution. The idea was that a constitution, democracy, and rights commission should be established to examine the following issues:
- the relationship between the government, parliament, and the courts;
- the functioning of the royal prerogative;
- the role of the House of Lords; and
- access to justice for ordinary people.
Other areas would include examining judicial review and amending the Human Rights Act 1998 to balance the rights of individuals, national security, and effective government.
The Government has said that it wants to ensure a range of expertise is represented on the commission. It also wants the commission to evidence from third parties and civic society to inform any recommendations. However, there are currently limited details available on the remit, form, and composition of the commission.
Several commentators and academics have welcomed the general principle of reviewing the UK’s constitutional arrangements. However, some have expressed concern about the context of the commission, particularly coming after the Supreme Court found against the Government on constitutional issues.
Those interested in starting to think about the issues which the Commission, once established, might consider will find the Research Briefing paper, written by Charley Coleman from the House of Lords Library and published in late March 2020, to be an excellent introduction.
The briefing can be found at https://lordslibrary.parliament.uk/research-briefings/lln-2020-0089/
Covid 19 and the English Legal System (9): introduction of a common platform for remote hearings in criminal, civil and family cases
Moves towards doing more court and tribunal business via remote links, rather than by personal appearances in courtrooms, had begun even before the Covid 19 pandemic struck. Indeed, the use of virtual or remote courts and tribunals was a key element in the Transformation of the Justice system that was in progress before the virus arrived.
The pandemic has, however, sharply accelerated the expansion in the use of remote hearings.
The Government has been using the Cloud Video Platform (CVP). It was initially used in the criminal justice system across 60 crown courts and 93 magistrates’ courts. The technology has been used in some 3,600 crown court hearings and more than 7,000 overnight remand cases heard by magistrates. It was not used for cases involving jury trial.
The announcement of the first stage in the use of this technology is at https://www.gov.uk/government/news/new-tech-will-help-keep-the-criminal-justice-system-moving-during-covid-19-pandemic
On July 1, 2020, the Government announced that it had decided to expand the use of the CVP to over 120 civil and family courts.
The Press announcement states that: ‘CVP can be accessed by any device that has a camera and a microphone – such as a mobile phone or tablet. Anyone can join easily, and securely, through a web browser, and sessions can be locked to make sure only appropriate parties join. Training rooms can also be set up so that sessions may be rehearsed before they go live.’
Further details are at https://www.gov.uk/government/news/new-video-tech-to-increase-remote-hearings-in-civil-and-family-courts
Although the rapid roll-out of this platform has been driven by the challenges arising from Covid 19, I assume that, once in place, this technology will become part of the fabric of the justice system.
Looking ahead, the full potential of such technology to enable potential court users to access the courts more easily will need to be explored and be accompanied by a substantial public education programme.
Covid 19 and the English Legal System (8): guidance on new working practices
As readers of this blog will already be aware, I have been considering the impact of the Covid 19 pandemic on the English Legal System. There will, I am sure, be many more blog entries to come.
For those not involved on a daily basis in the work of courts and tribunals, it can be hard to get an overview of what is happening.
An invaluable source of information is available on the Judiciary website which brings together the vast range of advice and guidance on how courts and tribunals should be working in the current environment. Some of this advice is general – applying across the board; other advice relates to specific jurisdictions.
Access to the guidance, which is updated when necessary, is available at https://www.judiciary.uk/coronavirus-covid-19-advice-and-guidance/
Post-implementation Review: Legal Aid – progress report
The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was a multi-faceted piece of legislation, dealing with a number of issues of great importance to the English Legal System. Part 1 of the Act made provision for major cut-backs in the provision of legal aid. This is now the subject of a Post-Implementation Review (PIR), being conducted by the Ministry of Justice.
A Post-Legislative Memorandum on LASPO was written and published by the Ministry of Justice in October 2017. This set out preliminary views on how the Government thought the reforms were working. This was to be the first step to further inquiry.
I noted the launch of the PIR into Part 1 of LASPO here in March 2018. A brief progress report was published by the Ministry of Justice in June 2018.
This stated, in part,
Ministry of Justice (MOJ) officials have led consultative groups formed from organisations and academics representing a cross section of the justice system. These meetings took place in April 2018 and focused on the four themes:
- criminal justice,
- family justice,
- civil justice and
- the advice and third sector. ..
Further consultative group meetings have been scheduled later in the year with a focus on how individuals navigate through the justice system at present.
In addition, the review team have been meeting a wide variety of interested parties on an individual and small group basis, in order to gather a broad range of evidence of the impact of the changes to the provision of legal aid made under LASPO. Through all forms of engagement, the review team has so far met with over 50 organisations in order to discuss the impact of LAPSO and many more meetings are planned for the coming months.
Alongside meetings with interested parties and to ensure our review is as informed as possible, the review team is also accepting submissions of evidence.
The deadline for the submission of evidence is this month (September 2018).
It seems unlikely that the final decisions arising from the review will be published before 2019. I stick to my prediction that major change to the legal aid scheme is unlikely to be an outcome of the review, but I would be happy to be proved wrong!
It may also be noted that the Justice Committee has published a report on the impact of changes to the criminal legal aid scheme on practitioners. This urges a full review of Criminal Legal Aid, to start no later than March 2019, to be informed by the work currently being undertaken in the PIR. The Government has yet to respond to this report.
The Post-Legislative Memorandum is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
For the PIR update, see https://www.gov.uk/government/publications/post-implementation-review-of-laspo
For the Select Committee report on Criminal Legal Aid, see https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-report-published-17-19/
Preventing digital exclusion
A great deal of effort is currently being put into finding ways of using IT to deliver legal services, whether in the form of: providing legal advice and assistance to those who need it; conducting various types of legal activity/process on-line; dealing with disputes online.
In general, the modernisation of the practice and procedure of the law through IT is to be welcomed. At the same time, there are concerns that some of the most vulnerable in society may be excluded from this brave new world. They may not have easy access to computers, or the ability to use them. In rightly encouraging digital solutions, at the same time policy makers need to ensure that the most vulnerable are not left behind.
In a recent policy paper, the human Rights group JUSTICE has drawn attention to the importance of ensuring that people are not excluded from the rapidly developing digital legal world.
In their report Preventing digital exclusion from online justice (published in June 2018), they analysed the potential issues that those engaged in the reform of legal procedures need to bear in mind.
The report makes a number of recommendations, directed primarily at HM Courts and Tribunals Service. They include:
- Greater investment in “trusted faces” in “trusted places” i.e. services already providing digital support and internet access.
- Considering the specific challenges of providing support to the digitally excluded, especially hard to reach cohorts – including testing Assisted Digital services in regions where the internet may be difficult to access. (Assisted Digital envisages a flexible mix of telephone, webchat, face-to-face, and paper-based support services. HMCTS is commissioning a programme of work to evaluate what types of support and in what combinations works best.)
- Paying specific attention to highly digitally excluded groups, like homeless people and detainees.
- Designing online justice services with an independent “look and feel” to reflect the constitutional independence of the courts.
- Maximising the benefits of the “multi-channel” approach – helping people move with ease between digital access, phone assistance, face-to-face assistance, and paper.
- Ensuring online justice services cater for the most affordable and ubiquitous mode of digital interaction: mobile technology.
- Conducting end-to-end pilots of online justice services, learning from hearing and enforcement stages what is required at earlier stages.
- Researching how people behave in an online environment and choices between Assisted Digital channels.
- Collecting and making available the widest range of data possible to support research by external experts.
Internationally, there is a great deal of experiment going on with different forms of communicating advice and assistance. There are being kept under review by Professor Roger Smith who, with funding from the Legal Education Foundation, provides – among other things – an annual review of development in the use of IT to increase access to justice. He also writes a blog which looks in mor detail at specific initiatives relating to trying to improve access to justice – not just through the use of new technologies but also new ways of funding them such as crowd funding.
For those interested in how the application of new technologies might change ways in which the delivery of legal services are undertaken, this is an outstanding resource – full of links to detailed initiatives. At the same time, the need for realism in potential impacts is also stressed. It is important not always to believe the hype surrounding new applications.
The JUSTICE report is at https://justice.org.uk/new-justice-report-on-preventing-digital-exclusion/.
The Annual Reviews of digital delivery of legal services can be found at https://www.thelegaleducationfoundation.org/digital/digital-report.
Roger Smith’s blog on developments in Law, technology and Access to Justice is at https://law-tech-a2j.org/publications/
Also relevant is the report, published in July 2018, from the Centre for Justice Innovation, which also looks at public attitudes towards the greater use of IT in the justice system.
Reshaping the Court estate: a further consultation
The programme of transformation of the justice system depends on the closure of a significant number of existing court buildings and reinvestment of the savings of running costs and the capital receipts from buildings that have been disposed of in a smaller but more efficient court estate.
In January 2018, Her Majesty’s Courts and Tribunals Service published a Consultation Paper setting out the basic principles on which detailed plans are now being developed. At the same time there were 5 more specific papers setting our proposals for closing courts in a number of areas, including Cambridge, the Thames Valley, London and Lancashire. There is nothing particularly new in this paper, though it does give interesting accounts of a number of initiatives currently on-going to deliver new ways of working in courts and tribunals.
The key aims are that there should be
- more videolinks and virtual hearings;
- digital service delivery, with a major reduction in the use of paper files;
- flexible opening hours;
- improved service delivery with much more work being undertaken online.
The number of court buildings will be reduced from around 530 buildings (a decade ago) to a total of 239 buildings in 2018. It is accepted that this will lead to some increase in travel time to reach those buildings, but the vast majority will still, according to HMCTS figures, still be within 2 hours travelling distance. As much work will in future be delivered without the need for lawyers and parties to be present in court, it is argued that this will further mitigate any inconvenience. What will be important will be to ensure that cases listed for a particular day are actually dealt with on that day.
The Consultation Paper reminds readers that the transformation policy is designed
- to enable existing and new buildings to be much more flexible in the ways in which they can be used;
- to ensure better public facilities – e.g. waiting rooms, rooms for clients to consult with their advisers;
- to ensure that the vulnerable are able to feel confident about using court facilities;
- to include of modern ICT to enable more work to be done online
- to support the needs of all the professionals who use the courts;
- to move towards an estate that provides dedicated hearing centres, while seeking
opportunities to concentrate back office functions in a smaller number of centres where they can be carried out most efficiently.
There will be resistance to some of these ideas. For example, the Bar has already argued against more flexible opening hours. It is said that this could be discriminatory against women barristers who may find it hard to take cases outside traditional working hours. While this is an issue that must be addressed, such arguments fail to acknowledge the fact historically the Court Service has only paid lip-service to the idea of delivering a service to court users. Many parties to litigation may find it more convenient to attend hearings outside of 10-4, Mondays to Fridays. The transformation programme provides a challenge to those who work in the courts to consider how they can deliver the service that clients want, when they want it.
The Consultation runs until 29 March 2018. The documentation can be found at https://consult.justice.gov.uk/digital-communications/transforming-court-tribunal-estate/
Employment Tribunal fees: back to the drawing board
(i) Financial: to transfer a proportion of the costs of the ETs to users (where they
can afford to pay);
(ii) Behavioural: to encourage people to use alternative services to help resolve
their disputes; and
(iii) Justice: to protect access to justice.getting a better balance between what the taxpayer funds and what the litigant funds.
An official review of the impact of the fee changes, published in January 2017 concluded that, broadly, these objectives had been achieved. (See this blog, February 2017)
The Supreme Court has, however, come to a quite different conclusion. In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51, the Court concluded unanimously that the Fees Order was ultra vires (that is to say that the Lord Chancellor did not have the power to make the order) and so quashed it.
There are at least three reasons why the judgements in this case are particularly interesting.
First, in most cases where the validity of a Statutory Instrument is challenged in the courts, the argument turns on fairly precise questions of statutory interpretation – were the rule-making powers in an Act of Parliament sufficient to give the relevant Minister the power to make the order being challenged?
In this case a much broader, constitutional approach was adopted. The essence of the argument was that the impact of the Order was so dramatic (the numbers of cases coming to both the ET and the EAT had fallen dramatically since the introduction of the fees) that they had the effect of denying potential claimants access to justice.Lord Reed, in the principal judgement, refers back to a number of historic legal texts, including Magna Carta, to conclude that it is a constitutional principle recognised in common law, that people should have access to justice.
Second, the judgement relies heavily on a number of empirical studies to show that the effect of impact of the fees rules was quite disproportionate. Using hypothetical examples, the Justices conclude that ordinary people on average earnings would have to forgo weeks if not months of expenditure on anything other than the most basic necessities to save the money needed to pay the relevant fees. The Court decided that the fees thus imposed a quite disproportionate burden on those who might have an arguable case to take to the ET or EAT. Certainly the cosy conclusions of the impact review, mentioned at the start of this note, were totally rejected by the Supreme Court
Finally, Lord Reed makes a number of interesting and important observations about the rule of law and the functions of courts and tribunals in supporting the rule of law. (See in particular paras 66-85 of the judgement). Here I set out brief extracts from the judgement:
The importance of the rule of law is not always understood. Indications of a lackof understanding include the assumption that the administration of justice is merely a public service like any other, that courts and tribunals are providers of services tothe “users” who appear before them, and that the provision of those services is ofvalue only to the users themselves and to those who are remunerated for theirparticipation in the proceedings. [There is an] assumption that the consumption of ET and EAT services without full cost recovery results in a loss to society, since “ET and EAT use does not lead to gains to society that exceed the sum of the gains toconsumers and producers of these services”.
[However] …the idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable….
Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.
Every day in the courts and tribunals of this country, the names of people who brought cases in the past live on as shorthand for the legal rules and principles which their cases established. Their cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless. The written case lodged on behalf of the Lord Chancellor in this appeal itself cites over 60 cases, each of which bears the name of the individual involved, and each of which is relied on as establishing a legal proposition. The Lord Chancellor’s own use of these materials refutes the idea that taxpayers derive no benefit from the cases brought by other people….
But the value to society of the right of access to the courts is not confined to cases in which the courts decide questions of general importance. People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations….
When Parliament passes laws creating employment rights, for example, it does so not merely in order to confer benefits on individual employees, but because it has decided that it is in the public interest that those rights should be given effect. It does not envisage that every case of a breach of those rights will result in a claim before an ET. But the possibility of claims being brought by employees whose rights are infringed must exist, if employment relationships are to be based on respect for those rights. Equally, although it is often desirable that claims arising out of allegedbreaches of employment rights should be resolved by negotiation or mediation,those procedures can only work fairly and properly if they are backed up by theknowledge on both sides that a fair and just system of adjudication will be availableif they fail. Otherwise, the party in the stronger bargaining position will always prevail….
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 