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LAW IN THE MILLENNIUM INSTITUTE OF LEGAL EXECUTIVES 14 March 2000
Ladies and Gentlemen, I am delighted to be here today, and to have the opportunity to make this address. What are the government’s aspirations in respect of the legal system and the lawyers in it? What progress have we made? These are my themes for tonight’s address. Lawyers cover the widest possible range of jobs. They all are described as "lawyers", but, frequently, are closer in ethos to the people from other professions dealing in the same sort of cases as them than they are to other lawyers. The city lawyer will have more in common with a merchant banker than a lawyer in a law centre specialising in benefit cases. The lawyer in the child care department of a local authority will have much more in common with a child psychiatrist, than a conveyancing lawyer. Consider the range. The commercial lawyer – the city firms, the commercial chambers. Advising, and appearing for big corporations; no public funding; high earning potential; dealing with businesses which expect high degrees of efficiency and competence; clients well able to evaluate the field, and make judgements about who to instruct; a client base well able to look after itself; often operating in an international setting; its lawyers, in no normal sense righting injustices; rather protecting commercial positions, and continuing the commercial process by use of litigation. This end of the spectrum is important to UK plc – it earns very substantial amounts of invisible earnings for the country. The commercial court sees itself as a major contributor to the nation’s wealth. It assiduously streamlines its procedures to make them more commercial. The lawyers in this area are very much in business. It’s a hard competitive environment, where rewards are obtained by the firms and chambers best able to provide services, which the market wants to buy. The common law practitioner – medium, non-city firms, doing mainly civil work, common law chambers in London and the provinces. Conveyancing, personal injuries, family, SME advisory and litigation some crime. Some legal aid work, representing less than 50% of their fee income, but probably their biggest single paymaster. Clients coming to law when circumstances require them to. Usually on the basis of acquaintance with the firm – they did their coveyancing or recommendation. Client base not rich, usually. Not able to make up its own mind who is good or bad. The criminal lawyer: in solicitors’ terms doing defence work only. Almost entirely dependant on public funding. Steady clientele. Instructs through availability or familiarity. Very tight margins. Success dependant on volume throughput. Efficiency vital to success. The social lawyer – working in a law centre, or small firm. Trying to reach clients the rest of the legal system does not reach – the council tenant who cannot get repairs; the exploited Bangladeshi women in sweat shops; the socially excluded who would never think they could have a lawyer. Dependant on public funding, and sometimes voluntary sector funding. Utterly committed. Hopelessly underfunded. These groups are not the only sorts of lawyers. Moreover the compartments are not watertight. Many firms and chambers have elements of all categories. However, I have chosen to describe the range. Lawyers, so frequently reviled, are utterly vital to the effective working of civic society. They operate the legal system. They provide the means by which the state can deal with crime, and family breakdown. And by which the citizen can vindicate his rights, against anybody, no matter how much stronger and more powerful he may be. If the law is unavailable to many through cost, ignorance or delay, this will gravely reduce the ability of people to realise their potential. If disputes cannot fairly be resolved because the system takes too long, or the expense of lawyers makes the contest unequal, or the risks of losing mean only the very rich or the fully state-funded party can litigate, then the system is failing to provide the basic requirements of a legal system. If the law never percolates down to people who have rights under it, or even if it does it would never occur to them that the vindication of that right was open to them, then the legal system is rendering nugatory many of the law’s aims. Lawyers are, in my experience, very good at identifying the rights and wrongs between litigants or disputants of any sort. The lawyer can usually see where the "merits" lie, and the courts will usually be reliable in identifying the justice of the case. Policy and expenditure however have not always been effective in ensuring that the law is effective in reaching the right parts of society, or that it is effective in serving the whole of society, rather than the sections of society who have become the traditional users of the system (e.g. the criminal defendant; the divorcing couple, the house buyer; the union plaintiff; and the insurer defendant). The state affects the legal system in a number of ways:
The state’s aims should be to ensure that the legal system
These aims have to be seen in the context of a changing society, with different attitudes to law and lawyers. The lawyer is no longer the remote but friendly high street solicitor, or the pampered barrister. He or she is now the butt of all those lawyer jokes, but also the person who is able, through the law, to take on the big battalions and establish that people have basic rights. Imran Khan, for the Lawrence family, is a fine example. Swift and fair criminal system As you may know, Lord Justice Auld is, at present, undertaking a year long review of the whole criminal courts system. As you will no doubt realise from the short time scale, with Lord Justice Auld reporting his findings in December, he is not expected to work up a detailed and costed blueprint for change. His objective is to produce authoritative advice to the Government of the lines on which it should be developing the criminal courts system. He is particularly keen to establish whether people feel that the existing court system meets their needs and those of today's society. The aim is to produce criminal courts that are, and are seen to be:
The terms of reference are wide ranging and include, but are not limited to;
and
As mentioned earlier, a very important part of the review is looking at ways of strengthening the effectiveness of the relationships between all parties within the criminal justice system. The system can only deliver the kind of outcomes which everyone desires if all the agencies within the system co-operate effectively together, and that means this area and all it entails will form an important part of the review. Criminal legal aidCriminal legal aid, which also costs some £800m a year, is also to be reformed. In October 2000 the provisions of the Access to Justice Act establishing the Criminal Defence Service will take effect. The major change from the existing system of Criminal Legal Aid is that in future only those lawyers who have contracts with the Criminal Defence Service and fulfil quality criteria will be able to represent assisted clients. Those who are accused of criminal offences will have the right to choose amongst those who have contracts. This is a major advance; there has not previously been a general assurance for those using criminal legal aid that services were of good quality. An important part of the reform will be to create a mixed system of private practitioners and some salaried defenders. Salaried defenders will enable the Criminal Defence Service to fill in gaps in provision and to provide a cost and quality benchmark against which the private sector can be compared. This again demonstrates our commitment to a system where people who require publicly funded advice have a guarantee of high quality legal defence services, and where unnecessary delays, cancellations and uncertainty are a thing of the past. This is part of the wider drive for quality public services. The Crown Prosecution Service The Crown Prosecution Service has been reformed. Its areas have been made co-terminus with the Police Authority Areas. The role of the Chief Crown Prosecutor in each area has been strengthened. An effective prosecution service, reorganised as such in the area is vital to an effective criminal justice system. The Criminal Justice (Mode of Trial) Bill is a modest but important part of our drive to modernise the Criminal Justice System. The Bill will give magistrates the power to decide whether an either-way offence should be tried in the Crown Court rather than the magistrates’ courts. This will reduce delay and alleviate the stress suffered by witnesses and victims. The Bill gives effect to an unanimous recommendation of the 1993 Royal Commission on Criminal Justice but, with the added safeguard of the right of appeal to a Crown Court judge on mode of trial. It brings our own system more into line with that in Scotland, where defendants have never had a choice of court. is a modest but important part of our drive to modernise the Criminal Justice System. The Bill will give magistrates the power to decide whether an either-way offence should be tried in the Crown Court rather than the magistrates’ courts. This will reduce delay and alleviate the stress suffered by witnesses and victims. The Bill gives effect to an unanimous recommendation of the 1993 Royal Commission on Criminal Justice but, with the added safeguard of the right of appeal to a Crown Court judge on mode of trial. It brings our own system more into line with that in Scotland, where defendants have never had a choice of court. A criminal justice system must, to command respect, accord defendants their rights but also provide the public with a sense it determines guilt or innocence in a way which cannot be manipulated by defendants, and where the mode of trial fits the crime. Appropriate advice and representation for all who need it One of the centrepieces of the Access to Justice Act reforms is the creation of the Community Legal Service and the Criminal Defence Service. They will be overseen by the Legal Services Commission, which will replace the existing Legal Aid Board. The provisions of the Act establishing the Legal Services Commission and the Community Legal Service will take effect on 1 April 2000. The Community Legal Service was foreshadowed in the Government’s manifesto, and is now being developed jointly by the Government and the Legal Aid Board, which will become the future Legal Services Commission. The Community Legal Service is an exemplar of this Government’s determination to ensure that the services available to the public, whether from the private sector under regulation, or from the public sector itself, meet the peoples expectations for the 21st century. It stems from a vision of society in which people are able to establish and assert their rights at a cost they can afford. It will provide access to information and advice to help tackle social exclusion and make fair treatment and justice the proper expectation for all and not a privileged few. And it aims to make sure that limited resources for what was known as civil and family legal aid will in future be used to the best possible effect by targeting identified needs and the highest priority legal cases. The first priority of the CLS will be to build up active local referral networks, to ensure that local people – and particularly the socially excluded - are able easily to access the type of help their problem requires an improved network of advice outlets. To achieve this, the Community Legal Service will work from the bottom up. Assessments of need and the planning of provision will be carried out by Community Legal Service Partnerships, which are based on local authority areas and include local funders and providers of legal advice and information. Best practice guidance for partnerships is being developed with the assistance of six "Pioneer" and forty four "Associate Pioneer" partnerships, covering a quarter of the population of England and Wales, over 12 million people. For the first time, through the Partnerships, we will be able to be responsive to the real need for publicly supported legal services. To reinforce the work of the partnerships, the Lord Chancellor’s Department is developing a standard Community Legal Service Quality Mark. The Quality Mark will accredit accessible and effective providers of legal information and advice and enable customers to find reliable suppliers of the services they need. We are launching a website, the Community Legal Service Gateway, this year. At first, the Gateway will improve access to existing information on the World Wide Web, and direct people to local and national advice and information providers. In the longer term, we intend to take advantage of new technology to build up interactive components. These may include information and self-help packs, e-mail advice and the assistance of an adviser via a video-link. The result should be that an individual deals with a joined-up service and is not passed on in an irritating, debilitating and costly way from one bureaucratic box to another; Part of this service will be the former civil and family legal aid scheme, which cost some £800m in 1998/99. It is of central importance that we get reform right here and that the preliminary advice which the CLS offers leads on seamlessly to more sophisticated legal services when they are appropriate. There are three main strands to this reform of the legal aid system: planning, contracting and the funding code. The future Legal Services Commission, which will be responsible for running the Community Legal Service will use the partnerships I have already described to develop plans for the delivery of legal services which take account of identified priorities and meet local need. A system of contracting, which is replacing the present entitlement system, will allow the Legal Services Commission to allocate resources to priority need, and to ensure that people receive high quality services. This system will also allow innovative approaches to service provision, so that access to justice for people in, for example, rural areas can be improved. The Legal Aid Board will produce ‘general civil contracts’ on 1 January 2000 which will cover all family and immigration work and all other civil advice and assistance. This will end the lottery of the existing system where those who use publicly funded legal services have little way of finding out which suppliers have provided good service and those which provide a poorer service. Solicitors will also benefit; they will be able to plan for the future with better knowledge of their cash flow. The third major strand is the Funding Code, which will replace the existing statutory merits test. The Code will require a set of rigorous criteria to be taken into account in the assessment of applications for funding. The Code will also be flexible. Different criteria may be applied to different types of case, according to priorities and the availability of resources. High priorities will include social welfare cases, those involving the interests of children and those with a wider public interest. Subject to these priorities there will be an assumption that public funding will only be available if a prudent individual, who could afford to do so, would be prepared to risk his or her own money in litigation. Applications will be expected to meet strict cost benefit targets, which will vary according to the prospects of a successful outcome. Decisions on funding will also take into account the availability of alternative sources of funding - including conditional fee agreements - and alternative means of resolving the dispute. We intend to refocus the use of resources to achieve the best possible value for taxpayers’ money. Conditional fee agreements - CFAs - are a central part of this transformation. They were introduced in 1990. Experience showed that they are effective but that their effectiveness could be increased. The Access to Justice Act has extended the scope of CFAs to all civil claims outside family. It also makes it possible for the winning party to recover the success fee, and any insurance premium, from the losing party. The success fee and the insurance fee are essential to the operation of CFAs in most cases. CFAs thereby enable ordinary people, without deep pockets or the Legal Aid Board, to take legal action without the risk of crippling financial loss if they lose. Our confidence in the development of CFAs led us to take the decision - now approved by Parliament in the Access to Justice Act - that most personal injury cases caused by negligence should not be within the scope of public funding. CFAs are not restricted to personal injury cases; they can be used in any kind of civil cases. How far they develop will depend on the inventiveness of lawyers and the insurance industry. They have the potential to allow people on middle incomes, who were excluded from legal aid, to pursue a range of good cases. There may well be considerable scope for businesses to use this method of funding. The challenge to the legal profession will be to assess risk accurately; the reward may be an expansion of business. We expect that CFAs will have a profound and positive effect on access to justice for everyone. They are part of our vision of a society in which people’s needs can be met and an example of a policy aimed at consumers’ needs. Proper court system The major reforms to the civil justice system, the Woolf reforms, introduced on 26 April last year, are already helping us to develop a justice system which is more accessible and commands people’s confidence, because it is fair, efficient and user-friendly. We were delighted with the smooth implementation of the reforms. But while initial indications have been positive, we are now beginning to undertake a methodical evaluation to assess their impact on the justice system. Side by side with our commitment to modernisation, the Government also aims to develop a strategy towards Alternative Dispute Resolution or ADR. The Government’s increased focus on the potential benefit of ADR is, to some extent, a reflection of the market place. ADR clearly can deliver great benefits to parties in dispute. Individuals and companies are increasingly willing to pay for the services of arbitrators and mediators because they believe they can achieve a more satisfactory resolution to their dispute than they are likely to secure through the courts. But support from the Government is neither unconditional, nor absolute. "Mediation", "arbitration", "alternative dispute resolution" all sound simple, straightforward and more user friendly expressions than "courts". But warm words are no guarantor of effective policy. "Mediation" conjures up images of an easier, friendlier route to the resolution of disputes than gladiatorial conflicts in the courts from which often only the lawyers are thought to emerge as the winners. Arbitration at its best can offer an expert in the field of the dispute, giving a quick, reasoned decision at the parties' convenience. But it is easy to be deluded by motherhood and apple pie. Alternative dispute resolution does not prove itself, but must be proved to be effective. Arbitration always produces a result, but at what cost? What makes arbitration an attractive option in some cases, but not in others? How often does mediation succeed? In what areas? At what cost to the participants? How often does it fail? When mediation fails, is it to be counted as an extra costly failure on top of what lies ahead - litigation? Or rather, a benefit, even from failure, because of a narrowing of the issues so that the next more litigious stage becomes less costly? It is in our common interest to go forward – but festina lente – hasten slowly - we must proceed on the basis of sound analysis and evaluation. This is a lesson which other jurisdictions have learned at a price. America, which often takes the lead in innovative legal practices, is raising serious questions over the claims made for the efficacy of ADR in the courts there. This need for sound evaluation is why we published the Alternative Dispute Resolution Discussion Paper. The Paper addresses key considerations which must inform the development of ADR in the future. It sets out the Government’s priorities:
Although forms of ADR appear to meet many of the principles for effective civil justice, the proportion of people with legal problems who choose to divert towards them has remained very low, even when there are convenient, and free, schemes available. And so the Discussion Paper also looks at how ADR can be encouraged and considers the question of compulsion, within the framework of the European Convention: for example, the idea that it could be made compulsory to try a form of assisted settlement or a form of court-annexed non-binding arbitration, such as exists in the United States, where parties can accept the arbitrator’s decision or take the case back to court. The Discussion Paper asks the key question of what the Government’s role should be in the provision of arbitration, conciliation, early neutral evaluation and mediation. It asks whether a national scheme, centrally initiated and controlled, would be the best way forward; or whether an evolutionary approach would be better, with the Government doing more to encourage partnerships with current providers at local levels, allowing ADR to develop in line with market forces. The Discussion Paper also canvasses views on whether we should develop an electronic directory of ADR providers, to improve information at the national and local levels. Developing such a directory would certainly be in line with the key findings of the paper on civil justice, Resolving and Avoiding Disputes in the Information Age. The vast majority of responses to that supported the idea of a portal site on the World Wide Web, to give information about legal service providers. The existence of an electronic directory might encourage the development of innovative "on line" approaches to ADR, examples of which are already appearing in other jurisdictions. These could include the delivery of statements and decisions in arbitrations by electronic means. The judiciary has a significant role to play in delivering a modernised justice system and we need to work in partnership with the judges in managing change. Today’s judges need to be able to meet the demands of managing cases and to have the personal skills needed to run a court, as well as being first class lawyers. The Lord Chancellor is committed to open and fair systems for appointing judges and QC’s. He is constantly looking for ways to develop the systems to ensure that the best are appointed from the widest possible field. In June 1999 he asked Sir Leonard Peach, formerly the Commissioner for Public Appointments, to scrutinise the procedures. Sir Leonard reported in December last year and the Lord Chancellor has embarked on an ambitious programme to implement the recommendations in the report. Following one of those recommendations the Lord Chancellor intends to appoint a Commissioner and deputy Commissioners to provide ongoing, independent monitoring of the appointments process which amount to Ombudsman arrangements for disappointed candidates. The legal profession Finally, a thriving and prosperous legal profession. Lawyers are vital to the vindication of rights, to protect the dispossessed, to make real laws which protect the weak against the strong, the down-trodden – indeed every citizen. Lawyers held in high regard because society recognises that they are vital to an efficiently functioning, civic society based on rights and responsibilities. Lawyers are held in high regard when the legal system they operate is perceived to work in dealing with crime, resolving disputes, advising the citizen of his rights, providing him with appropriate representation. The Government is determined that our reforms will provide a legal system in which the lawyers who operate it are held in high regard and are able to thrive and prosper.
I have described a substantial programme of modernisation. We are transforming legal services, which have had a fusty, even quill pen, image. I hope I have shown how these changes fit into the Government’s wider programme of modernisation. Legal services are changing, and will change further, the way practitioners operate within the system. The Lord Chancellor and I have no doubt that the programme we are undertaking is vital if legal services are to continue to prosper and meet the country’s needs. |
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