Archive for February 2017
Determining the limits of Executive Power: the Miller case
- The Sovereignty of Parliament means that Parliament ( not the Executive) has the power to make and unmake laws (indeed that was a key argument of the case for Brexit – that the UK had ceded too much law making power from the UK Parliament to the EU).
- The Separation of Powers means that there are checks and balances in our constitutional settlement, which implies that the judiciary must have the independence to reach decisions that the Government of the day may not like.
It can be argued that the Secretary of State for Justice and Lord Chancellor was too slow to acknowledge her obligations under section 3 of the Constitutional Reform Act 2005 to uphold the continued independence of the judiciary – certainly in the immediate aftermath of the initial High Court decision in which considerable abuse was heaped upon the judges in the Press. Those who accused the judges of ‘being out of touch’ showed that they had no understanding of what the role of the judges is and should be in a parliamentary democracy.
Of course, those in power who find that they are prevented from doing what they would like may be expected to rail against those who have put barriers in their way – recent events in the USA bear witness to this proposition. But it should be remembered that without checks and balances, government leaders may well be tempted to take more and more power to themselves, with potentially extremely serious consequences for the people they seek to govern.
One further question that this case provokes is whether the current mix of constitutional principle – the precise limits of which are unclear – and law is the mot appropriate basis on which the Constitution of the UK should be founded. Is one implication of the Miller case that the time has now come for the UK to adopt a written constitution?
Reform of the Youth Justice System
In 2007, the average monthly number of persons under the age of 18 held in custody was 2909. Today that average monthly figure is about 900. Generally far fewer young people are brought into the criminal justice system than was the case 10 years ago.
At first sight it might seem that these dramatic falls in numbers – which do not get much publicity – should be a good news story. But it is not as simple as the. The figures mask other problems about the overall state of the youth justice system. Once children and young people are in custody the outcomes are not good enough. Levels of violence and self-harm are too great and reoffending rates are unacceptably high. 69% of those sentenced to custody going on to commit further offences within a year of their release.
This raises questions about what more can be done to ensure that young people do not enter the system in the first place, and if they do are given every opportunity to turn their lives around by receiving appropriate education and training to enable them to start leading productive lives in society.
The Government has taken a number of measure to address these problems.
In 2016, they commissioned Charlie Taylor – a former head teacher and child care expert – to undertake a review of the Youth justice system. His report was published in December 2016. The Government’s response to his report was published on the same day.
In a written statement to Parliament on 24 February, the Government now announced the next steps it is taking in response to that review.
First, it has appointed Charlie Taylor to be the new Chair of the Youth Justice Board – so that he can oversee the reforms he advocated.
Second the Government has announced that a new Youth Custody Service is to be established as a distinct arm of HM Prison and Probation Service, with a dedicated Director accountable directly to the Chief Executive.
Third there has been (yet another) review of the physical estate used for the detention of under 18s. It states bluntly that the time for reports is over – all those who know about this accept that the estate is not up to modern standards. What is needed is action to improve the estate.
Perhaps by comparison with the huge problems facing the prison service more generally – which new proposals for reform of the prison system are designed to address – youth justice is an issue on which it is hard to attract attention from the mass media. But it seems plausible to suggest that if you get the youth justice system working effectively, you may be able to reduce some of the pressures that might arise further down the line.
The Charlie Wilson Review is at https://www.gov.uk/government/publications/review-of-the-youth-justice-system
The Government response to the report is at the same page.
A summary of the Justice Secretary’s statement to Parliament is at https://www.gov.uk/government/speeches/youth-justice-update.
The report on the youth justice estate is at https://www.gov.uk/government/publications/youth-custody-improvement-board-findings-and-recommendations
Setting time limits to police bail
In recent years there has been much complaint about the shadow can be cast over people’s lives when those people have become of interest to the police, but where the police do not have enough evidence to justify charging them with the committal of an offence. A number of well-known members of the public were on police bail for months, not knowing whether any further steps were going to be taken against them.
When she was Home Secretary, Theresa May decided that there had to be limits to the time any person could be made subject to police bail (technically known as ‘pre-charge bail’).
Part 4 of the Policing and Crime Act 2017 contains provisions which reflect this decision.
The Act amends PACE Act 1984 by creating a presumption that where the police decide to release a person without charging them, the release should not be subject to the imposition of bail, unless defined pre-conditions are satisfied.
The conditions are
- Condition A is that there are reasonable grounds to suspect that the person on bail is guilty of the offence for which they were arrested and are on bail.
- Condition B is that there are reasonable grounds for believing either that further time is needed for the police to make a charging decision under police-led prosecution arrangements (where the person has been bailed for that purpose) or that further investigation is necessary.
- Condition C is that there are reasonable grounds for believing that the charging decision or investigation (as applicable) is being conducted diligently and expeditiously.
- Condition D is that releasing the person on bail continues to be both necessary
and proportionate in all the circumstances of the particular case (having regard, in particular,to any bail conditions that are or would be imposed).
Where the bail pre-conditions are satisfied, the period of bail will normally by limited to 28 days (3 months in Serious Fraud Office cases) though the period may be extended to three months by senior police officers, with the possibility of further extensions approved by the magistrates.
Further information is available at https://www.gov.uk/government/collections/policing-and-crime-bill
Policing and Crime Act 2017
The Policing and Crime Act 2017 received the Royal Assent at the end of January 2017. It is a large piece of legislation covering a wealth of topics. The Home Office Press Release summarises the main provisions as follows. The Act will:
- place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
- reform the police complaints and disciplinary systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity
- further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
- enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
- increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
- reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
- stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
- amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
- amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
- make it an offence to possess pyrotechnic articles at qualifying musical events
- reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
- better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
- increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
- confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012
In anticipation of these changes, a number of revisions to the PACE Codes of Practice were also presented to Parliament in December.
For further detail on the Policing and Crime Act 2017, go to https://www.gov.uk/government/collections/policing-and-crime-bill.
The current texts of the PACE codes as amended can be found at https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.
Independent Office for Police Conduct
Following a review of the governance arrangements for the Independent Police Complaints Commission, and a Government Consulation held in 2015, the Policing and Crime Act 2017 provides in section 33 and Schedule 9 for the Commission to be renamed the Independent Office for Police Conduct. It will continue to investigate complaints against the police, but will have a clearer governance structure.
This change is in part a response to survey evidence showing a lack of public confidence in the current IPCC.
The review is at https://www.gov.uk/government/publications/governance-of-the-independent-police-complaints-commission.
The consultation, published on the same date, is at https://www.gov.uk/government/consultations/reforming-the-independent-police-complaints-commission-structure-and-governance.
Competition in Legal Services: new report
The Competition and Market Authority Final Report on legal services was published in December. Its interim report was noted in this blog in July 2016.
The CMA found that competition in legal services for individual and small business consumers is not working as well as it might. In particular, there was a lack of digital comparison tools to make comparisons easier for consumers. Lack of competition meant some providers can charge higher prices when substantially cheaper prices are available for comparable services.
In response to these findings, the CMA set out a package of measures which challenges providers and regulators to help customers better navigate the market and get value for money. These changes were drawn up after discussions with key stakeholders, including the 8 frontline legal regulators, and will be overseen by the Legal Services Board, which will report on progress.
They include:
A requirement on providers to display information on price, service, redress and regulatory status to help potential customers. This would include publishing pricing information for particular services online (only 17% of firms do so at present).
Revamping and promoting the existing Legal Choices website to be a starting point for customers needing help, information and guidance on how to navigate the market and purchase services.
Facilitating the development of comparison sites and other intermediaries to allow customers to compare providers in one place by making data already collected by regulators available. At present only 22% of people compare the services on offer before appointing a lawyer.
Encouraging legal service providers to engage with feedback and review platforms to ensure that customers can benefit from the experience of others before making their choice.
Recommending that the Ministry of Justice looks at whether to extend protection from existing redress schemes to customers using ‘unauthorised’ providers.
In addition, the CMA considered the impact of legal services regulation on competition. The CMA found that whilst the current system is not a major barrier, it may not be sustainable in the long term. In particular, the framework is not sufficiently flexible to apply proportionate risk-based regulation which reflects differences across legal services which could harm competition. The CMA therefore also recommends that the Ministry of Justice reviews the current framework to make it more flexible and targeted at protecting consumers in areas where it is most needed.
The Legal Services Board has welcomed the report and announced that it will publish its response in due course. The Ministry of Justice response is also awaited.
For more detail https://www.gov.uk/government/news/cma-demands-greater-transparency-from-legal-service-providers
Employment tribunals: fees
Following the introduction of fees to take a case to the Employment Tribunal, the Government undertook to carry out a review to examine the impact of the new fees on the work of the tribunals. They have now carried out this review and in January 2017 published a Consultation Paper on changes they are suggesting might be made to the fees charging system.
The paper states that the introduction of fees had three principal objectives. These objectives were:
(i) the financial objective:those who use the ETs are contributing around £9 million per annum in fees (which is in line with estimates at the time),transferring a proportion of the cost of the ETs fromtaxpayers to those who use the Employment Tribunals.
(ii)the behavioural objective:while there has been a sharp, significant and sustained fall in ET claims following the introduction of fees, there has been a significant increase in the number of people who have turned to Acas’s conciliation service.There were over 80,000 notificationsto Acas in the first year of the new early conciliation service, and more than 92,000 in 2015/16. This suggests that more people are now using conciliation than were previously using voluntary pre-claim conciliation and the ETs combined.(iii) access to justice:our assessment suggests that conciliation is effective in helping up to a little under half of the people who refer disputes to them (48%) avoid the need to go to the ETs, and where it has not worked, many (up to a further 34%) went on to issue proceedings.
The fall in ET claims has been significant and much greater than originally estimated.In many cases, we consider this to be a positive outcome: more people have referred their disputes to Acas’s conciliation service. Nevertheless, there is also some evidence that some people who have been unable to resolve their disputes through conciliation have been discouraged from bringing a formal ET claim because of the requirement to pay a fee.This assessment is reinforced by the consideration given to the particular impact that fees have had on the volumes of workplace discrimination claims, in accordance with the duties under section 149 (1)of the Equality Act 2010.
Reforming Employment Tribunals: process
There have been two recent consultations which could affect the work of Employment tribunals and the Employment Appeal Tribunal. The first, considered here, is on procedure. The other, on fees, is the subject of a separate note.
As part of its Transforming our Justice System programme, in December 2016 the Government published a short consultation on how reform of employment tribunals might fit into the overall transformation programme. The Consultation Paper noted that because these tribunals were set up under the Employment Tribunals Act 1996, major change could not be achieved without reform of that Act. The Consultation Paper therefore noted that major change was likely to take rather longer to be delivered, given the difficulties of obtaining parliamentary time for an amending Bill.
In the interim, this consultation set out what seems to be a rather minor change, namely that the responsibility for drafting the procedural rules which apply to the work of Employment tribunals should be added into the work already being done by the Tribunals Rules Committee.
This may actually be a rather more controversial proposal than might at first appear, since many judges in both the Employment Tribunal and Employment Appeal Tribunal have long thought that they should be part of the court system, not the tribunal system. They argue that they deal with disputes between parties (which is more what courts do) rather than citizen-state disputes (which is more what tribunals do).
The problem with this argument is that courts do deal with citizen-state disputes as well as tribunals; and other tribunals do deal with party-party disputes.
In my view the essence of tribunals is that they should generally be less formal than courts, and also use specialist expertise where needed. These considerations seem to have tipped the balance in the Government’s thinking. My own view is that the Government’s proposals are sensible.
The consultation closed in mid-January 2017, so no final decision has been taken. It will be seen whether the Government’s initial view prevails.
For the consultation paper, see https://www.gov.uk/government/consultations/reforming-the-employment-tribunal-system
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 