Policy meets practice

Within these interactions, barriers facing CILEx Lawyers in their practice areas have been consistently noted and raised by CILEx as creating wider resource threats for consumers seeking access to vital legal resources at a time when there is an urgent need for lawyers. CILEx has, therefore, lobbied for sustainable sector recovery which is not only paramount to ensuring continuity of legal services and upholding access to justice, but to maintaining a skilled and knowledgeable legal workforce that can help mitigate mounting workloads and ensure healthy long-term stability.

CILEx’s practice area-specific calls for sector recovery have thereby included:

Family justice sector

CILEx calls for:

• The transition back to hearings in person to be an iterative process. We should not be looking to flood back to the courts as lockdown measures release, and an objective assessment is still needed on a case-by-case basis of what is necessary in the interests of justice, balancing the need to protect public health.
• Further technical support and administrative resources to facilitate remote hearings in support of the judiciary, legal representatives and parties to a proceeding. This is particularly necessary in the light of increasing adjournments that have been noted in response to incessant court backlogs, and where there is continued resistance to accommodate virtual hearings by certain courts/judges. These adjournments have risked coming at the expense of the proper administration of justice and the best interests of vulnerable persons.
• Impact assessments to be conducted for vulnerable parties, with consideration as to how best to house the digitally excluded and their access-to-justice needs. For example, creative solutions such as the creation of community ‘safe spaces’ could be considered to help facilitate vulnerable persons when accessing remote hearings.

Civil justice sector

CILEx calls for:

• Extensions to the stay of proceedings and additional safeguards which may still be warranted as the personal and financial circumstances of the public continue to change within the COVID landscape. CILEx stresses that government departments will need to be well mobilised to provide additional measures quickly and effectively in response to increasing need.
• Reforms to Section 21 ‘No-Fault Evictions’ and Ground 8 Possession Claims under the Housing Act 1988, as soon as possible. In the meantime, CILEx supports the calls for action made by the Housing, Communities and Local Government Committee, on 22 May, to provide judicial discretion over these matters.
• Acceleration of recommendations made by the Law Commission on ‘Employment Law Hearing Structures’ in the interests of realising greater efficiencies in case-handling of employment law disputes. This includes proposals to extend limitation periods for bringing an employment dispute before the tribunal; the introduction of measures for flexible deployment of judges between the county court and tribunal; increases to financial limits on the employment tribunals’ contractual jurisdiction in respect of claims made by employees; and measures for ensuring greater enforcement of tribunal awards to prevent follow-on claims for the enforcement of orders through the county court.
• Reform of the current inequalities of access to legal aid for litigants in county courts versus the employment tribunals.

Private client sector

CILEx calls for:

• Future government-led sector recovery plans to consider all legal professionals operating within the private client arena to avoid confusion and marginalisation of legal service providers. CILEx stresses that this sector is particularly reliant on contributions from alternative providers, and even from unregulated providers at earlier stages of delivering advice and service support.
• The removal of legislative restraints, such as is contained within the Powers of Attorney Act 1971 s3 (Proof of instruments creating powers of attorney), which prevent CILEx Lawyers from certifying copies of powers of attorney. Modernising practice by removing this legislative constraint would help ensure affordable and timely access to legal services, particularly for the more than one million people especially susceptible to COVID-19, who may need legal services such as estate planning and Powers of Attorney during the ongoing pandemic. Some stakeholders, for example HM Land Registry, have already noted these benefits, having changed their own policies to recognise CILEx Lawyers as able to certify Powers of Attorney documents, thus helping to meet increased demand by removing illogical barriers during this sensitive time. Whilst such advances have been put in place until further notice, CILEx will continue to push for legislative change to permanently level the playing field and dissolve existing barriers preventing our members from carrying out all of the remits of their role.
• A review on the law of deeds, which needs to take place as soon as possible as COVID-19 acts as a catalyst towards a more digitally-driven legal services market.

Sector-wide impacts

It goes without saying that legal practitioners affected by COVID-19 extend unanimously to everyone, including those operating in practice areas which have not been covered by the above. In considering these wider scale issues, as well as solutions, CILEx has reported to members frequently on the following thematic issues, which we recognise have also faced the profession as a whole over the lockdown period.

LawTech and opportunities for legal practice

COVID-19 has created both metaphorical and physical blocks for individuals accessing services and services accessing individuals, including disruption to major reform programmes such as the Gender Recognition Act 2004 and vital bills, such as the Domestic Abuse Bill, which have seen significant delays or pushbacks until 2021.

However, COVID-19 has also created opportunities, acting as a catalyst for change which could pave the way to new and more efficient ways of working. For example, within conveyancing CILEx has contributed towards practice guidance for our members to help practitioners recover safely after the sector witnessed a halt of services for the initial months of lockdown.

However, we have also, through industry design sprints and work conducted with HM Land Registry, been looking to the future and how lawtech solutions may be able to reduce risks within the market and expedite legal processes (See also Cilex Regulation pages of this issue).

The CILEx policy team has, thereby, kept a keen eye on wider transformations to the legal sector, including our initial policy positions regarding Professor Stephen Mayson’s proposals for transforming the future of legal services regulation, and looking at opportunities for enhancing legal services education and training to recognise the increasing dependency on technological expertise and competencies. CILEx will continue to follow these lines of discourse and participate in future thinking to ensure that, in what is categorised as the ‘new normal’, our members continue to play an important role as part of a diverse, inclusive and accessible legal profession.

Technology-enabled access to justice

COVID-19 has redefined the workplace for a large segment of society. Changes to work/life balances, as well as the adoption of remote technology, have required a rapid response from members of the legal profession.

Throughout COVID-19, the CILEx policy team has observed the impacts of technology on our members as well as the wider justice system and access to justice. Through our own call for evidence to CILEx members operating within courts, as well as the rapid-fire reviews of both the family justice system and civil justice system, which provided CILEx with opportunities to review a wider evidence base, we have been closely monitoring the benefits and drawbacks of remote hearing technology.

Commonalities amongst CILEx member views, and wider independent inquiries, into these developments draw interesting parallels across multiple jurisdictions of issues arising in respect to remote hearings, including concerns around client privacy, the need for additional training and court resources to supplement new technologies, inconsistent approaches across the court estate to technological uptake, and the added complexity of conducting hearings remotely, particularly with knock-on impacts to communication and the ability for parties and their legal representatives to properly address one another.

CILEx hopes that our findings, submitted to HMCTS alongside the family and civil justice rapid-fire reviews, pave the way for future considerations around our justice system and the role of remote hearings within it, ensuring that any future decision around the ‘new normal’ and new avenues for accessing justice take this evidence into account.

Further reports, such as Transform Justice’s exploration of the overuse of police detention as well as Justice’s first exploration of jury-led trials, have enabled CILEx to be sensitive to the intrinsic risks that virtual jury trials could pose to the proper administration of justice, the underlying jurisprudence of juries, and open justice principles, whilst also questioning the reduction of legal resources within practice areas such as the criminal justice system, which has exacerbated problems in the wake of COVID-19.

Anecdotal evidence provided by members throughout COVID-19 supports findings stated in some of the above reports. However, CILEx and its members have also been privy to technological successes. When considering the rapid implementation of legal technology over this period, CILEx is hopeful that further developments and adjustments are put in place to help bring the legal industry further into a 21st century way of working.

Make sure your involved

The CILEx policy team will continue to monitor, report and engage with both SRG members and the wider CILEx membership on the important factors affecting them and their practice as we enter new stages of COVID-19 response.

Over the past five months, CILEx has collected vital data from members in the shape of our COVID-19 impact survey, enabling us to identify macroeconomic data trends relating to impacts on workload and income across core practice areas, tracking whether members or their organisations have found government business resources helpful in aiding them during this time, and offering members the chance to tell us about their wider concerns and needs for sector recovery.

CILEx will continue to feature the survey on a monthly basis, looking to compare caseload and workload variances between 2019 and 2020, and maintain open channels of communication with you all via our SRG networks. Please look out for your chance to get involved via the general CILEx member e-newsletter or in any of our SRG monthly specialist newsletters.

If you have not already joined one of our 15 SRGs to keep up to date with all of the above and more, now is the perfect time to ensure that you gain the chance to help influence CILEx’s policy work and contribute to next steps in reshaping our justice system and legal sector for now and beyond. Make your voice heard and keep ahead of latest developments affecting your practice. It is free to join, so sign up to one of our fantastic groups today.