Jackson: the next chapter

Response to Government announcement on Jackson; the Norgrove Review; criminal legal aid update; inaugural Bar Debate; and a clutch of new Silks.

We now have the Government response to the consultation on implementation of the Jackson reforms. It will have caused dismay to many. In large measure it intends to adopt all of the proposals.

This includes plans to abolish the general recoverability of the conditional fee agreement (CFA) success fee from the losing side, and the general recoverability of after the event (ATE) insurance premiums. It is disappointing to note that the position for clinical negligence remains unsatisfactory. Rather than providing legal aid for the investigative stages in these cases there is an optimistic statement about joint expert reports and the intention to have a “tightly drawn power to allow the recoverability to cover the cost of expert reports”.

The Ministry of Justice has published a further consultation paper, “Solving disputes in the County Courts: creating a simpler, quicker and more proportionate system” (CP6/2011). The paper places great emphasis on compulsory mediation, simplifying the claims procedures on a fixed cost basis, and introducing a simpler and more effective enforcement regime. It is intended that these proposals should be part of the Jackson reforms and the changes to legal aid funding in civil cases. Christopher Hancock QC has valiantly agreed to continue with the task of leading the Bar Council responses on these topics. He will be looking for detailed assistance. I very much hope that Specialist Bar Associations in particular will give him support.

 

Norgrove


We have been told that a Bill will be introduced before the summer recess (probably the end of July) to implement the changes to Family and Civil legal aid. There will not be any further consultation. Of course, we have not received the Ministry’s response to the legal aid consultation, this is expected shortly after Easter, so we do not yet know what it will contain. But this timetable means a Bill before the final report from the Family Justice Review chaired by David Norgrove.

On 5 April I went to the launch of the interim report of the Norgrove review at the House of Lords. It is worth reciting some of the observations made in that report:

“We have been impressed by the dedication and capability of those who work in the family justice system. Their work is hugely demanding and often highly stressful.”

“The family justice system does not operate as a coherent managed system.”

In introducing the interim report David Norgrove spoke of the quality and commitment of those working in family justice and observed that often it doesn’t pay well. Sentiments which reflect our submissions to the legal aid review.

There will be a wide consultation on the interim report. The conclusion of this process will be the publication of a final report in the autumn. However, it is both extraordinary and deeply dispiriting to note that the Government will not postpone its legislative programme by even a few months to allow it to take account of the final Norgrove report. This is the report of a review that the Government itself established. At the launch the Legal Aid Minister Jonathan Djanogly praised the work of the review but when challenged about this timetable he re-affirmed that there would be no delay. It is difficult to understand how there can be a coherent and effective review of family justice under these circumstances.

 

Crime


The timetable for legal aid proposals in crime has slipped still further. The Ministry response on criminal matters will be within the paper expected to be published this month. Thereafter there will have to be a consultation on competition and it is likely that this consultation document may not be published until the autumn (probably October). This is unwelcome news because we still do not know the detail of the direction in which the Government intends to travel. Uncertainty is worrying and it becomes a greater and greater challenge to prepare for change when you do not know the full extent of what you may be called upon to achieve. I repeat what I have said on previous occasions – we must continue to develop in expectation that some form of competition is coming.

 

Bar Debate


The inaugural Bar Debate was held in the iconic Court 1 of the Old Bailey on 7 April. The speakers were Lord Justice Hughes, Peter Hitchens, Paul McDowell, and Nicola Padfield. This was an excellent opportunity for the Bar to host a serious debate on an important issue: “Bang ‘em up Britain: Are we taking a rational approach to sentencing?” The audience consisted of academics, the media, and many others concerned with the criminal justice system. All declared it a stimulating and successful event. Credit is due to the Communications Team at the Bar Council, headed by Toby Craig.

 

Silks


It was a great pleasure to attend the Silks’ ceremony which also took place on 7 April. It was a wonderful sunny day, and the pride of the new Silks and their supporters was obvious. The Lord Chancellor made clear his commitment to the future of the system in all areas of practice – I was glad to hear it, because if it is to thrive then so also does the Bar in private and in publicly funded practice. I trust that this is not lost on our Lord Chancellor.

Contributor
Peter Lodder QC, Bar Chairman