Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for February 2017

Determining the limits of Executive Power: the Miller case

leave a comment »

There is no doubt that 24 January 2017 was a big day for the Supreme Court. That was the date on which 11 Justices handed down their decision in R (on the application of Miller and another)  v Secretary of State for Exiting the European Union [2017] UKSC 5.
At issue was a fundamental constitutional question: could the decision of the UK to exit the European Union be implemented by the Government itself exercising executive power deriving from the Royal Prerogative, or did the process have to be authorised by Parliament passing a Bill which would give the Government the power to start the exit process.
The Government argued – in outline – that the power of the UK Government to enter into international treaty obligations is something that is exercised by exercise of prerogative powers. Thus, equally the Government argued – the power to disengage from treaty obligations could be done by exercise of those same prerogative powers.
Those who challenged the Government’s position argued that because accessing the EU had been accompanied by the enactment of the European Communities Act 1972, (which gave domestic effect to the UK’s obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015) the Act of 1972 had created legal rights and obligations in our domestic law. Owing to the well-established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament.
By a majority of 8 – 3, the Supreme Court upheld the decision of the High Court that the process of starting Brexit could not be started by the exercise of the prerogative, but must be authorised by an Act of Parliament.
The Supreme Court acknowledged that the 2016 referendum was an event of great political significance. However, its legal significance had to determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences.
The change in the law required to implement the referendum’s outcome must be made in the only way permitted by the UK constitution, namely by legislation.
There has been a great deal of comment – much of it vitriolic and ill-informed – on the decisions of the courts. Those who argued in favour of the Government appeared to have forgotten some basic constitutional principles.
  • 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 Mwas too slow to uphold 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. 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?

Written by lwtmp

February 27, 2017 at 10:08 am

Reform of the Youth Justice System

leave a comment »

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

 

Written by lwtmp

February 26, 2017 at 12:09 pm

Setting time limits to police bail

leave a comment »

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

Written by lwtmp

February 24, 2017 at 12:34 pm

Posted in Uncategorized

Tagged with ,

Policing and Crime Act 2017

leave a comment »

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.

Written by lwtmp

February 24, 2017 at 12:13 pm

Independent Office for Police Conduct

leave a comment »

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.

 

Written by lwtmp

February 21, 2017 at 5:52 pm

Competition in Legal Services: new report

leave a comment »

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

leave a comment »

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) Financial: to transfer a proportion of the costs of the ETs to users (where they
can afford to pay);
(ii) Behavioural: to encourage people to use alternative services to help resolve
their disputes; and
(iii) Justice: to protect access to justice.
It might be suggested that there was a fourth, political, objective namely to ease burdens on employers who were arguing that it was too easy for them to be taken to a tribunal by an employee – an argument which was of course rejected by the TUC and other workers’ representatives.
Having conducted their review, the Government has concluded that its original objectives have broadly been met:
(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 from
taxpayers 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 notifications
to 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.
While these conclusions will not satisfy those who argue that there should be a return to the former system, there is absolutely no indication that the present Government is planning to abandon its new fees scheme.
The review states:
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.
The Government is proposing that the income threshold for fee remission should be modestly increased to, broadly, the level of the National Living Wage, with additional allowances for couples and children. (This proposal would apply to all courts and tribunal where standards fees are payable.)
The Government has also abolished fees for certain types of case concerning payments from the National Insurance Fund, such as certain redundancy payments.
In addition, the Consultation Paper notes that the Government has taken steps to publicise better the Lord Chancellor’s power to remit fees in exceptional circumstances, which has apparently led to some increase in the numbers of cases where this power has been exercised.
It seems highly unlikely that these changes are going to lead to significant increases in the numbers of claims made in Employment Tribunals. and even the modest changes proposed are not yet settled.
What is potentially more interesting is whether changes that might be made under the Transforming Our Justice System programme which, by holding out the prospect of much greater digitization of process, could lead to more people taking their claims to the ET. But as noted in my earlier blog, significant procedural reform of ETs is not going to be put in place for a considerable time to come.
Details of the proposed changes are at https://www.gov.uk/government/consultations/review-of-the-introduction-of-fees-in-the-employment-tribunals

Written by lwtmp

February 1, 2017 at 11:52 am