Change or no‐change? Reflections on the Courts and Legal Services Act 1990

Date01 September 1991
AuthorMartin Partington
DOIhttp://doi.org/10.1111/j.1468-2230.1991.tb02663.x
Published date01 September 1991
LEGISLATION
Change
or
no-change?
Reflections on the Courts and Legal Services Act
1990
Martin Partington
*
The passing of the Courts and Legal Services Act through Parliament on
1
November
1990
was the culmination
of
an extraordinarily well-orchestrated and determined
political process. Irrespective of the effect of the legislation on the working of the
courts or the legal profession, its enactment was a dramatic example of the
parliamentary process
in
action. The
full
details
of
that process and the parts played
by the various actors
in
it
will
not be known
until
official records are available
in
30
years time. What we do already know, from the published record, is that at least
certain provisions of the Act and the policy discussions that preceded
it
generated
an extraordinary degree of hostility, much of
it
directed against the Lord Chancellor
himself.
I
The Act itself is ‘framework’ legislation,
in
two senses of that term:
in
the technical
sense,
it
provides the legal basis for much delegated legislation;
in
the practical
sense,
it
purports to set the context within which legal services and the work
of
the courts are to be set in the years to come. It is a complex piece of legislation,
dealing with a wide variety of matters. This note cannot offer a detailed summary
of
the Act itself; what
it
does attempt is a preliminary analysis of the likely significance
of the Act.* Comment here
will
focus
on
three main issues: the courts; competition
in
legal services; and consumer protection. At the end of this note, brief mention
will
be made
of
certain matters the Act did not address and some conclusions
will
be drawn.
The
Courts
Allocation
of
Work
in
the
Courts
Although most of the political controversy was generated
in
relation to the provisions
of the Act dealing
with
the legal profession, the Act’s impact is likely to be most
felt
in
the context of the future allocation of work
in
the courts.
Unlike the criminal justice system, where there had been considerable debate and
much change, the civil justice system had remained largely unscrutinised. Yet, within
government, the philosophy of ‘value for money’ had begun
to
raise questions as
to the efficiency and management of the civil justice system.
In
February 1985 the
creation of the Civil Justice Review was announced.3 This was driven by civil
*Professor of Law, University of Rrislol.
I
An excellent sumnary
of
the background
is
to
be
found
in
F.
Cownie, ‘The Reform
of
the Legal
Profession’ in
F.
Patfield and R. While
(eds),
7he
Chrrgiug
Lrrw
(Leicestcr: Leicester University
Press,
1990) ch 12.
For
a
more detailed overview,
see
the coniiiienlary by Robin C.A. White,
A
Guide
to the Coitrts
cirid
Lqnl
Services
Act
I990
(London: Fourinat Publishing,
1991);
also Walter Merricks and Russell
Wallman,
T/re
Corivts arid
Legcil
Services
Act: A
Solicitors
Guide
(London:
The
Law Society,
199
I).
Its terms of reference were:
‘To
improve the machinery of civil justice in Englitnd and
Wales
by incans
of reforms in jurisdiction, procedure and court administration and in particular
10
reduce delay, cost
and complexity.’ Cni
394
(London:
HMSO,
1988) para
I.
2
3
702
77w
Moderii
Lmv
Review
54:5
September
1991
0026-7961

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