Martin Partington: Spotlight on the Justice System

The Legal Aid, Sentencing and punishment of offenders Bill 2011 is the big one, certainly so far as the legal system is concerned. It is a complex measure, attempting to achieve three quite distinct policy objectives. Underpinning much of it is the Government’s desire to cut public expenditure.

This is seen most clearly in Part 1 which deals with legal aid. The long awaited abolition of the Legal Services Commission is contained in the Bill, together with provision of the appointment of a Director of Legal Aid who will head up a new agency within the Ministry of Justice. In practical terms, it is the changes (i.e. cuts) to civil legal aid that are likely to have the most significant impact on the ground. The Bill gives legislative effect to the Government’s proposals to make fundamental changes to legal aid – which will take a lot of issues currently in scope of the legal aid scheme out of the scope of legal aid, will increase the charges paid by members of the public for getting legal aid assistance and reduce the sums paid to lawyers who provide legal aid services.

Arguments that have been made by many – not just lawyers – about the impact these changes will have on access to justice have been met by the Government’s counter argument that the UK spends too much on legal aid – far more than most other countries. It has to be said, however, that by comparison with the proposals for reform of sentencing (see below) these changes have not actually received much attention in the mass media.

Details of the proposals for change can be found at http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf.

Part 2 of the Bill deals with recommendations of Lord Justice Jackson about making changes to the current system of ‘no-win-no-fee’ Conditional Fee Agreement cases, to limit the amounts that lawyers can charge by way of success fees.

The Government argues: [CFAs] have played an important role in extending access to justice but they also enable claims to be pursued with no real risk to claimants and the threat of excessive costs to defendants. It cannot be right that, regardless of the extreme weakness of a claim, the sensible thing for the defendant to do is to settle, and get out before the legal costs start running up. This is precisely what has happened and it is one of the worst instances of this country’s compensation culture…

[T]he Government believes that the right way forward is to abolish the recoverability of CFA success fees and ATE insurance premiums.

The Bill provides for these changes: for more detail see also http://www.official-documents.gov.uk/document/cm80/8041/8041.pdf.

The final part of the Bill deals with proposals for reforming sentencing. These issues were debated heavily in the press, with the Justice Secretary facing a lot of criticism that he was being ‘soft on crime’ – wanting to keep people out of prison to save money. The quite respectable argument – which at the least demands a careful hearing – that more might be done to turn people away from crime if they were not in prison was a subtlety that got lost in much of the mass media.

In the light of the decision not to proceed with the idea for giving those pleading guilty to charges a higher discount from their sentence than they can currently get, the Bill’s proposals are more modest than were originally envisaged by the Government when it published its Consultation Paper on the reform of Sentencing in November 2010.

The Bill is currently in the Committee stage, which will end in mid-October 2011. I estimate that the Bill will pass into law early in 2012.

Details on all three components of the Bill will be considered further here and in the book in due course.

One of the items I have not yet commented on here are the Government’s draft proposals for a smaller, reformed House of Lords, to which members are elected, which were published in May 2011. The question of House of Lords reform has been debated for well over 100 years; and there have been major changes – significant reductions in the numbers of hereditary peers; introduction of life peers. But till now no elected members.

The proposals, contained in the a draft House of Lords Reform Bill  and accompanying White Paper, set out possible options for how a reformed House could look. While the draft Bill sets out firm proposals, the White Paper also considers alternative options on which the Government remains open-minded. For example, the Bill proposes that 80% of the reformed House should be elected, with 20% being appointed by a special appointments commission to sit as independent cross-benchers; the White Paper considers the case for a 100% elected body.

Key proposals contained in the draft House of Lords Reform Bill include:

• a reformed House containing only 300 members, considerably smaller than the present House. Members would be paid a salary, rather that simply claim expenses and a daily allowance as currently happens;
• those elected would be eligible to sit for a single term of three parliaments (i.e. roughly 15 years). Life and hereditary appointments would disappear;
• elections using the single transferable vote (STV), electing a third of members each time with elections normally taking place at the same time as General Elections. The White Paper acknowledges that other modes of election might also be considered;
• the franchise would be based on multi-member electoral districts, drawn up independently based on national and county boundaries;
• there would be a continuation of the presence of Bishops of the Church of England in the House of Lords, though their number would be reduced from 26 to 12;
• the new membership elections would be staggered over the course of three electoral cycles, which once complete would ensure that there was a continual renewal of a third of the House.

As regards the functions of the House of Lords, both the draft Bill and White Paper are clear that the powers of the reformed House of Lords should remain the same. It would continue with its legislative functions of scrutinising legislation; it would also continue its investigative and accountability functions through its Select Committee, thereby complementing the work of the Commons.

It is the Government’s intention that the first elections take place in 2015. The draft Bill and White Paper are currently being considered by a Joint Committee, composed of 13 peers and 13 MPs, before legislation is introduced next year.

Although the Bill is an important component of the Coalition Government’s programme, it has already drawn some pretty hostile reaction, both from those who think it goes too far, and those who thinks it does not go far enough. We will clearly return to the issue in the next (academic) year how far the weight that the Prime Minister and Deputy Prime Minister have put behind the proposals is able to push the proposals.

What do you think of them? Should Church of England Bishops retain a right to sit, whereas other religious leaders have no such right? Should the body be wholly elected? Should the name of the House of Lords be changed – given the new system of appointment? If so, what should be the name? Senate?

For full details of the proposals, go to http://www.cabinetoffice.gov.uk/resource-library/house-lords-reform-draft-bill