Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Transforming the English Legal System: Recent changes and future prospects

Introduction
The first edition of my book Introduction to the English Legal System was published in 2000. One of its central themes is that the English Legal System is extremely dynamic . 15 years on, and following publication of the 10th edition earlier in 2015, I reflect here on what has happened over the last 15 years, and identify some of the issues that are likely to shape further change.
The key changes
Over the last 15 years, there have been substantial changes to the English Legal System which have fallen, broadly, into two phases. First were those introduced during the Labour administrations led by Tony Blair and Gordon Brown (2000-2010); second were those introduced by the Coalition/Conservative administrations led by David Cameron (2010-2015).
In Phase 1, major institutional changes were made. They included:
• creating the Ministry of Justice (2007), replacing the Department for Constitutional Affairs and, before that, the Lord Chancellor’s Department;
• transferring responsibility for offender managements services (prisons and probation) from the Home Office to the Ministry of Justice;
• ensuring that the Secretary of State for Justice/Lord Chancellor was a member of the House of Commons, not the House of Lords – and indeed did not have to be legally qualified;
• creating the Legal Services Commission, to run legal aid and pioneer new approaches to the delivery of legal services to the poor (2000);
• creating the Supreme Court (2009), replacing the judicial functions of the House of Lords;
• creating the Tribunals Service (2007) subsequently merged with the Courts Service (2011);
• creating the Judicial Appointments Commission (2006);
• establishing the Legal Services Board to regulate the legal professions and to promote innovation in the delivery of legal services (2007);
• creating the Legal Services Ombudsman and rationalising procedures for dealing with complaints against lawyers (2007);
• establishing the Sentencing Council (2009) to advise on sentencing policy.
This period also saw the implementation of major reforms to civil procedure, with the new emphasis on active case management by the judges. In the same period, the first steps werealso taken to limit expenditure on legal aid by narrowing the range of issues in relation to which legal aid would be available.
• In Phase 2, institutional change continued. For example, this period saw:abolishing local police authorities and replacing them with elected Police and Crime Commissioners (2012);
• creating the College of Policing (2012);
• creating the National Crime Agency (2013) replacing a number of other agencies;
• reform of the county court (2013);
• creating the Family Court (2014);
• creating a new court for hearing major international commercial disputes (2015).
There have also been changes driven by the desire of government to involve private and third sector bodies in the work of the justice system. Private sector prisons were first created in 1992, a development continued under the Labour administrations. The principle was extended in 2014, through the creation of a new Probation Service, including private and third sector providers (2014) replacing the previous entirely public sector probation service.
But the overriding policy imperative in phase 2 has been the desire of the Cameron governments to reduce public expenditure. This has had significant impact on the English Legal System.
The most obvious effect has been on the legal aid scheme. In this context:
• the scope of the legal aid scheme has been further restricted;
• the Legal Services Commission was wound up and replaced by the Legal Aid Agency, operating within a much tighter legal framework;
• legal aid practitioners’ pay has been significantly reduced.
In addition to cuts in legal aid, there have been major changes to the fees that potential litigants must pay to get a case started in court, and in many tribunals. Some of the fee changes seem to have been introduced as much to deter litigants as to raise money for the system – the fees charged by the Employment Tribunal seem to have had a marked deterrent effect, with significantly reduced case loads. But fees for high value hearings in the civil courts are clearly designed to cover a significant part of the running of the court service.
Even in the criminal courts, while up-front fees are not charged, those convicted of crimes are now required to pay a contribution to the costs of their proceedings.
There is a major review of the number of court buildings that are needed for the justice system. Many court buildings have already been closed and a significant number of other rarely used buildings have been earmarked for closure.
While Phase 1 introduced, as noted, significant institutional change, it could be argued that it was not a period which required legal professionals to change fundamentally their working practices. Phase 2 is, from that point of view, far more challenging. There have been significant financial cuts affecting legal aid and the lawyers who provide legal aid services; there have been reductions in numbers of legal advice agencies; the Crown Prosecution Service has had funding reduced, which may be leading to an increase in the numbers of private prosecutions; more litigants in person are appearing in the civil courts.
The response of many practitioners to these developments is simply to deplore them and to demand the restoration of reduced funding. I take a more provocative starting point. Cuts in public expenditure are not necessarily a bad thing. If current practices waste resources, there is no good reason why change should not be introduced to improve efficiency as well as reduce cost. (The review of efficiency in the criminal justice system undertaken in 2014 is leading to changes in how criminal cases are managed in the criminal courts.) Those who simply want earlier levels of public expenditure to be restored are not facing political reality and, more importantly, betray a lack of imagination.
Future prospects
So, what is likely to happen in the future?
An effective legal system is essential for the promotion of the rule of law. Everyone, not just the rich and powerful, should have access to the legal system. The reality is that the rich and powerful will be able to continue to hire lawyers and take legal proceedings more or less as before. It is the less well off who need to be borne particularly in mind. Here I suggest a number of developments which, if developed energetically and imaginatively, could ensure that ordinary people can have access to justice – indeed their access may be enhanced.
This will not be easy. It will require strong leadership from policy makers and the judiciary; it may also require revisiting some of the decisions that have been taken to examine whether their impact has been disproportionately negative – e.g. the massive increase in court fees.
Improving access to justice
1 Information and Communication technology. While investment in ICT by practitioners has been enormous, changing considerably how lawyers work, investment in Information technology in courts and tribunals has been pitifully slow. A much trumpeted roll-out of technological innovation in the courts is currently in progress, but – by comparison with developments in other parts of the economy – courts and tribunals still lag seriously behind. At present the focus seems to be primarily on putting IT into courts, so that case files can be loaded electronically. While this will help to improve efficiency – files should be harder to lose – this is a very limited outcome. Use of IT could go much further to increase access to justice.
There are much more interesting examples already operating of the extremely effective use of technology, which allow people to bring cases on line, upload evidence and have them dealt with over the phone or remotely through video conference: the dispute resolution procedures adopted by the Financial Services Ombudsman, and the Parking Adjudicators are the most quoted examples.
While there are categories of civil case, in particular money claims and possession claims, that can be started on line, these are very modest examples of what could be developed by the creation of portals that structure the information that needs to be provided by parties to a dispute to enable decisions to be reached by an independent judge or assessor. The use of IT has transformed the provision of consumer services, or indeed government services. By contrast, the use of IT in the legal system is way behind. There is no reason why IT cannot be developed to improve access to justice by enabling more people to do their own litigation and obtaining other services from the court by making online applications.
It may well be that the courts need to develop special advisers who can assist members of the public with the completion of such forms/
In addition to the use of IT to create the files containing the information needed for dispute resolution, IT could also be widely used to create ‘virtual’ courts or tribunals, in which parties could engage with the judge on line or by phone, rather than having to be present before him/her. I am not arguing that this would be suitable in all cases; but there is no reason why more routine cases could be dealt with this way.
Imaginative use of IT could also enable specialist judiciary to be used more flexibly. For example, judges with housing law experience could determine cases remotely, without the need to have a housing specialist in every court.
2. Commitment to customer service delivery. It is a cliche that ‘justice delayed is justice denied’. While active case management – introduced following Lord Woolf’s reforms to civil justice procedure and now introduced into criminal justice – have reduced delay, the courts and tribunals service still fails to embrace fully a commitment to service standards which the public ought to expect.
The Ministry of Justice website proclaims proudly that a small claim will usually be decided within 30 weeks. Is this something to boast about? Other more complex cases take much longer. Active case management has helped. But more needs to be done. Strong judicial leadership, combined with the imaginative use of ICT proposed in the last paragraph, should enable the courts and tribunals service to deliver a much more efficient and speedier service than is currently on offer.
It might also be necessary to consider the hours during which courts and tribunals sit. There is much discussion about doctors offering a 7 day a week service. While not going that far, how about Saturday morning hearings? The Parking Adjudicators already offer this.
3. More specialist courts. The creation of the Courts and Tribunals Service has, surprisingly, not lead to any serious discussion about whether the non-criminal courts should become more specialised.
The traditional view is that, in general, courts should be generalist, not specialist in nature. It is up to the advocates appearing before the courts to instruct the judges on the law that needs to be applied in the particular case. From the judges’ point of view, this means that they have a variety of work which keeps them interested. But is this the best way to organise the judiciary?
Consider the present position.
• All tribunals have a specialist jurisdiction, with judges who are specifically trained in the relevant area – social security, employment, immigration, child support and the like.
• The Family Court operates with specially trained judges.
• For commercial disputes, there is a whole raft of specialist jurisdictions, for example Technology and Construction, Patents, Admiralty, Companies, Commercial. A new court with specialist judges to determine high value commercial disputes has recently been established in London.
• A specialist Planning Court was established in 2014.
A consequence of this is that judges become familiar with the particular area of law under consideration, and – where needed – can provide at least some assistance to an unrepresented party to identify relevant issues and relevant evidence. The ‘enabling role’ of the judge has long been acknowledged in tribunals; it should equally be accepted in civil courts.
There should be a serious discussion about abandoning the principle of a generalist civil court, and creating further specialist jurisdictions, for example, a specialist housing court; a specialist consumer affairs court; or a specialist personal injury court. As suggested above, imaginative use of IT could enable specialist judges to deal with cases remotely – it would not be necessary for every court to have its own specialists, unless the case load demanded it.
The danger of judges become stale or bored as a consequence of dealing with a more limited variety of cases would resolved by creating opportunities for training in new jurisdictions – as has already started to happen with the appointment of tribunal judges who then move into other court contexts.
4. Thinking about the judicial function. Not enough time has been spent in recent years thinking about the role of judges in courts and tribunals. This may be because the functions are regarded as self evident. Surely, people would say, the judges’ task is:
• to hear the evidence presented;
• find the facts in the light of that evidence;
• understand and if necessary rule on the law relevant to the issue to be decided;
• in the light of these exercises reach a decision;
• having reached a decision communicate this to the parties.
These assumptions raise a number of questions which should be considered more fully.
First, how important is it for the judge to hear evidence as opposed to read it – in particular where there is a great deal of documentary evidence? To what extent should be oral tradition in hearing cases be retained? There are already many jurisdictions where cases proceed entirely on the papers. Cannot this principle be extended further?
Second, in how many cases is a ruling on a point of law really crucial? I suggest that in many routine cases the law is clear. What is unclear are the facts. If this is correct, then once the facts are determined, the result follows pretty easily from those findings. If this is right, then is current use of (expensive) judicial time justified. Could not cheaper alternatives be considered as JUSTICE recently argued in its paper Delivering Justice in an Age of Austerity?
Third, is the practice of judges in the civil courts and in some tribunals giving long judgments really necessary? Could not a lot of time and trouble be saved if judges initially limited themselves to stating the outcome with perhaps brief reasons – only writing a full judgment if needed for an appeal?
5. Alternative Dispute Resolution. Despite enormous encouragement to use ADR by both the judges and government, the use of ADR techniques to resolve cases being litigated in the courts still remains limited. It seems that, despite official and judicial pressure, many practitioners find it hard to develop a business model that enables them to make money from using ADR. There is therefore little incentive for them to encourage their clients to go down the ADR route.
There is some evidence from other common law jurisdictions which suggests making ADR compulsory is an essential step that needs to be taken if there is to be a more general change in litigation culture and practice. Although undoubtedly controversial, this is an issue which should be revisited in the coming years.
Consideration should also be given to integrating ADR into the services provided by courts and tribunals. Sometimes called the ‘revolving door’ model of civil justice, this would mean that setting out towards a court hearing would not be the only option for those starting civil proceedings.
6. Funding access to justice. Big money is being invested in major commercial litigation to fund the enormous costs of bringing such cases.
What are the options for the non-wealthy? Assuming that there is no increase in the levels of legal aid funding, which is clearly not on the agenda at the moment, there is a range of possibilities.
• legal expenses insurance – many people have this, often without realising it, being tacked on to car or household of other insurance policies. It is surprising that the Legal Expenses Insurance providers have not stepped more aggressively into the legal services market; they tend to do well in countries where legal aid is much less generously funded;
• controlling costs through fixed fees – this is a concept that has started to gain traction. Lawyers don’t like it but where sums in dispute are relatively modest, fixed fees are a way of keeping costs proportionate – a key objective of Lord Justice Jackson’s review of the costs of litigation;
• no-win, no-fee – a number of initiatives have been taken to encourage people to litigate where they have a good case. The latest – damages-based agreements (contingency fee agreements) -have not been working well. Regulatory rules are discouraging practitioners from using them;
• crowd-funding – a tentative scheme for crowd funding litigation was launched in 2015;
• pro bono advice and assistance – legal practitioners have offered this for years and is actively encouraged. The Lord Chancellor has recently urged the profession to do more of this;
• university law school clinics – they are making a contribution to the provision of advice and assistance but by definition is only available in university towns;
• (free) alternatives to courts – one of the major developments over the last 15 years and one which will go much further is the use of modes of dispute resolution that avoid use of the courts altogether – and which are in most cases free for the party seeking redress to use. Financial services, consumer disputes, property disputes are among the areas covered. There are more private industry Ombudsman schemes than there were 15 years ago. And we are on the verge of a whole new raft of procedures for resolving disputes on-line. It should be noted that the policy initative here comes from the Department for Business, Innovation and Skills, not the Ministry of Justice.
Despite the widespread impression given by the media that lawyers only do it for the money, many lawyers are concerned about delivering advice and assistance to everyone, not just the rich and powerful. None of the options set out above will on their own solve the problem of the loss of legal aid. But a coordinated strategy, on the lines set out in the Low Commission Report (2014) would make a big difference.
7. Competition and regulation in the legal services market. The Legal Services Board has the task of promoting new models of legal service delivery. Its headline initiative has been the creation of a framework for law firms to enter alternative business structures. Many new entities have been created as a result. What is not currently clear – because the research has not been done – is what actual impact the arrival of ABS is having on the delivery of legal services. Nevertheless, considerable change can be anticipated over the next 10-15 years in the ways in which lawyers practice.
One change that is likely over the next 10 years is that the currently over-complex regulatory structure – with the Legal Services Board sitting over a number of other regulatory bodies with responsibility for different parts of the legal profession – will be simplified. Indeed, the Chair of the Legal Services Board has already announced that he would like to see the Board wound up.
8. Public legal education -Public legal education could provide real effective tools to enable people to have the confidence to solve problems and disputes themselves or with limited assistance. PLE is much better developed in other jurisdictions – for example Canada and Australia. This is an essential development that should be much higher on policy makers’ agenda.
Other matters
In addition to changes that could protect access to justice, two other issues will continue to feature prominently in the development of the English Legal System.
9. Equality of opportunity. There has been considerable discussion about the extent to which there is equality of opportunity in the English Legal System.
At the apex of the system, it may be noted that the Lord Chancellor has never been a woman or from an ethnic minority.
So far as the judiciary is concerned, the Judicial Appointments Commission has sought to increase the numbers of women and ethnic minority judges; there is some evidence that this work is slowly beginning to have some success. There has been some increase in the number of women in more senior judicial roles (High Court and Court of Appeal), there is still only one woman in the Supreme Court. No woman has been the President of the Supreme Court. Those from the ethnic minorities find it harder to make progress.
The legal professional bodies have been trying to create opportunities for those from a wider range of social backgrounds to enter the legal profession. And a number of individual law firms have introduced recruitment procedures which rely less heavily on A level results and which emphasise candidates’ potential in other ways.
It is highly likely that there will be significant changes to the social composition of the legal profession over the next 10-15 years.
10. Judicial careers. The creation of the Judicial Appointments Commission has led to the emergence of the idea of lawyers developing a career path in the judiciary, starting perhaps in a tribunal, and then moving into the ordinary courts. This is a significant development which might raise the question of whether there should be a career judiciary as in civil law countries, with judges starting judicial training after leaving university and becoming judges without first practising as lawyers. This seems unlikely at present, but is nonetheless an option that might be worth consideration at some point.
A separate issue is whether the large number of people who adjudicate disputes in private dispute resolution scheme can be given opportunities to discuss the ways they go about their work with other judges in courts and tribunals.
Final comment
I make two final observations:
• many of the developments of the last 15 years have been developed piece meal; there is little sense of an overall policy strategy (save perhaps reducing public expenditure.) There are plenty of ideas for reform, but rather few people trying to draw these ideas into a framework for Justice Policy that seeks to make the system work better for its users, as reduced cost and with greater efficiency;
• whatever happens, the English Legal system will continue to be a very dynamic one. It is a system within which those with energy and new ideas will have much to contribute.
Those starting the study of law today need to be open to new ideas and to take advantage of and indeed help to shape the opportunities that will undoubtedly exist in the modern English Legal system.

Written by lwtmp

September 11, 2015 at 9:58 am

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