Archive for September 2018
Employment Law Hearing Structures: Consultation from the Law Commission
The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.
But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.
The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which courts and tribunals dealing with employment and discrimination cases interact.
For example:
- At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
- Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
- Employment Tribunals have no power to make an order to enforce a decision that it has made.
- Courts have exclusive jurisdiction over no-employment discrimination cases
These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.
The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.
But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.
(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)
The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/
The Consultation runs till January 2019. Final recommendations will be published in 2019.
The work of the Law Commission: Justice Committee inquiry 2018
In the summer 2018, the House of Commons Justice Committee announced that it would start an inquiry into the work of the Law Commission. To date it has received oral and written evidence from the Law Commission.
The evidence shows that over the last 8 years, the core funding for the work of the Commission has been cut by over 50%.
To make up the short-fall, the Commission has been undertaking a number of projects funded by Government Departments, which fall outside the programme of Law Reform which the Commission had itself determined and agreed with the Government.
In oral evidence, the then Chair, Sir David Bean made the point that, while funded projects were important, it could mean that other important projects would have to be dropped or postponed, because they did not fit the political priorities of the day.
The final outcome of the inquiry is currently awaited.
The written and oral evidence is available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/publications/
Administrative Justice Council starts work
The creation of the Administrative Justice Council – replacing the Administrative Justice Forum – was announced in December 2017.
It has now started work. In July 2018 it held its first meeting, the minutes of which have just been published.
The Council is a relatively large body – some 40 participants – who have a wide range of experience of the administrative justice system. The overall direction of the programme is led by a steering group drawn from the wider Council membership. Much of its work is to be done through sub-committees. The first two sub-committees – academic, and pro bono – started work before the first full meeting and fed their progress to date into the main Council meeting. In addition, specific projects will be led by ad hoc Working Groups.
From the minutes, it is clear that much of the first meeting was taken up with scene- setting with individual members explaining their work in the administrative justice field to the other members of the group.
Two particular themes in the minutes caught my eye:
First, it is clear that there are interesting developments taking place in Scotland and Wales which, following devolution, have the freedom to develop their own approaches – this is particularly the case for Wales.
Second, there was an interesting contribution from the Secretary of the Ombudsman Association, proposing that there should be a workshop bringing together people from the tribunals and ombudsmen worlds to look in some detail at how they approached their work, and to explore ways in which their work could be made more interactive.
Obviously these are early days, but I will be keeping and eye on how the Council develops and the contributions it may make to the development of administrative justice policy and its delivery.
Information about the Administrative Council can be found at https://justice.org.uk/ajc/
This page gives a direct link to the minutes of the meeting.
Reviewing Parliamentary constituency boundaries: outcome of the 7th review.
It is reasonable to argue that, with movements in population, the boundaries of parliamentary constituencies should be kept under review to ensure that historic figures do not operate unfairly (by making some constituencies much larger or smaller than the average.)
The process of Boundary Review is undertaken by 4 Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland.
The 7th Boundary Review has just been completed. The reports from the Commissions were handed to Government on 5 September 2018, and they in turn were laid before Parliament on 10 September 2018.
The 7th review is the first to have been completed following major amendments to the primary legislation – the Parliamentary Constituencies Act 1986, as significantly amended by the Parliamentary Voting System and Constituencies Act 2011.
The Act of 2011 was a product of the Conservative/Liberal Democratic Coalition and was designed to to two things.
- Authorise the holding of a referendum on whether some form of proportional voting should replace the current ‘first past the post’ system of voting in UK General Elections – a proposition that was lost in May 2011.
- Reduce the total size of the House of Commons from 650 to 600. The amending act set out in some detail the criteria to be used by the Boundary Commissions in reaching their decisions. An important issue was try to ensure that the numbers of voters entitled to vote in each constituency should be more equal than had been the case hitherto. There was to be a uniform electoral quota (number of voters divided by the number of seats) and, with only limited exceptions, each constituency deviating by no more than 5% from that number.
(The 6th boundary review, which was supposed to have developed recommendations to deliver the boundary changes in time for the 2015 General Election).
There are two principal reasons why these particular boundary changes are controversial.
- Many sitting MPs are faced with the prospect of their seat disappearing; in order to seek relection, they will have to be adopted as a candidate in a new constituency;
- Historically, urban constituencies have on average had fewer constituents that rural constituencies. Since rural constituencies have tended to be more Conservative than urban constituencies, it has generally been possible for those in urban seats to be elected with somewhat fewer votes than those in rural seats.
The recommendations of the Boundary Commissions cannot come into effect without a detailed Order in Council incorporating the changes has been laid before and approved by Parliament. It has been stated by a junior Minister that the process of drafting the order may take some time.
It is currently far from clear whether the changes – and the consequent reduction in the size of the House of Commons – will be made. If they are, they will come into effect for the next General Election, currently scheduled for 2022.
The full reports of the Commissions can be found at https://www.gov.uk/government/publications/the-boundary-commissions-boundary-review-2018. (These give details of how the constituencies in your area might be affected.)
A very helpful background note can be found at https://commonslibrary.parliament.uk/parliament-and-elections/government/the-boundary-review-what-comes-next/
Post-implementation review of LASPO Part 2: the Jackson Reforms
I have noted elsewhere the fact that the Government has started a post-implementation review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). (See this blog, March 2018 and September 2018).
The principal focus is on changes to the legal aid scheme – Part 1 of the Act.
Part 2 of the Act introduced changes to the costs rules relating to civil litigation proposed in the review led by Lord Justice Jackson.
Progress with this review has been slower than with the legal aid review. But in June 2018, the Government published a short statement on how it thought the changes were going, and set out a number of questions on which it sought evidence from practitioners and other civil justice stakeholders.
The focus of the inquiry is on the five principal reforms contained in the Act. They are
- (i) non-recoverability of Conditional Fee Agreement success fees;
- (ii) non-recoverability of After the Event insurance premiums,
- (iii) the introduction of Damages-Based Agreements,
- (iv) section 55 changes to Part 36 offers to settle proceedings,
- (v) banning referral fees in personal injury cases.
The preliminary view of officials is that while their introduction was very contoversial, they are working pretty well in practice.
In June 2018, the Government has published an initial assessment together with a list of questions to which it hopes practitioners will respond during the summer of 2018. A further report will be published in due course.
The document is available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/719140/pir-part-2-laspo-initial-assessment.pdf
Post-implementation Review: Legal Aid – progress report
The Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO) was a multi-faceted piece of legislation, dealing with a number of issues of great importance to the English Legal System. Part 1 of the Act made provision for major cut-backs in the provision of legal aid. This is now the subject of a Post-Implementation Review (PIR), being conducted by the Ministry of Justice.
A Post-Legislative Memorandum on LASPO was written and published by the Ministry of Justice in October 2017. This set out preliminary views on how the Government thought the reforms were working. This was to be the first step to further inquiry.
I noted the launch of the PIR into Part 1 of LASPO here in March 2018. A brief progress report was published by the Ministry of Justice in June 2018.
This stated, in part,
Ministry of Justice (MOJ) officials have led consultative groups formed from organisations and academics representing a cross section of the justice system. These meetings took place in April 2018 and focused on the four themes:
- criminal justice,
- family justice,
- civil justice and
- the advice and third sector. ..
Further consultative group meetings have been scheduled later in the year with a focus on how individuals navigate through the justice system at present.
In addition, the review team have been meeting a wide variety of interested parties on an individual and small group basis, in order to gather a broad range of evidence of the impact of the changes to the provision of legal aid made under LASPO. Through all forms of engagement, the review team has so far met with over 50 organisations in order to discuss the impact of LAPSO and many more meetings are planned for the coming months.
Alongside meetings with interested parties and to ensure our review is as informed as possible, the review team is also accepting submissions of evidence.
The deadline for the submission of evidence is this month (September 2018).
It seems unlikely that the final decisions arising from the review will be published before 2019. I stick to my prediction that major change to the legal aid scheme is unlikely to be an outcome of the review, but I would be happy to be proved wrong!
It may also be noted that the Justice Committee has published a report on the impact of changes to the criminal legal aid scheme on practitioners. This urges a full review of Criminal Legal Aid, to start no later than March 2019, to be informed by the work currently being undertaken in the PIR. The Government has yet to respond to this report.
The Post-Legislative Memorandum is at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
For the PIR update, see https://www.gov.uk/government/publications/post-implementation-review-of-laspo
For the Select Committee report on Criminal Legal Aid, see https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news-parliament-2017/criminal-legal-aid-report-published-17-19/
Suspension of the Transforming Compliance and Enforcement Programme (TCEP).
What is the point of going to court if, having obtained a judgement in your favour, you cannot get it enforced? This has long been recognised as a problem for the Civil Justice system.
Reforms to the relevant law were introduced in April 2014.
In this blog in June 2018 I noted the publication of a review of how the new rules relating to the enforcement of judgements were operating, based on the first full year of their operation. Reform of the legal basis of enforcement was an important part of the Transforming Compliance and Enforcement Programme, which was itself an important adjunct (though separately funded) of the Transforming our Justice System programme.
The aim of TCEP was that, through better investment in IT, enforcement would be able to be carried out more quickly and efficiently.
The Government has now announced that the TCEP is to be put on hold – the Ministry of Justice just does not have enough money to take the programme forward. While changes that have been made will continue to be implemented, further change and investment must wait.
This will be very disappointing news for those who would like to see significant improvement in enforcement work.
The announcement, made on 6 September 2018, is at https://www.gov.uk/government/news/compliance-and-enforcement-work-to-continue-unchanged
The functions of the family court: the need for joined-up policies?
Shortly before his retirement from the post of President of the Family Court, Sir James Munby gave an extremely interesting lecture at the University of Liverpool about what he regarded as the failings of the current family court system.
He developed two principal arguments. The first focussed on what might be called the core functions of the family court; the other offered a more ‘holistic’ vision for the family justice system.
In relation to the first, Sir James noted that the core functions of the family court involved three key issues
- determining questions of status – were a couple married or in a civil partnership or not;
- determining what should happen to the children of marriage; and
- determining the financial consequences of family breakdown.
He argued that the procedural rules and practices in relation to each of these questions were complex and resulted in potentially people having to go to court on more than one occasion to resolve their issues. Despite the unification of the family court under a single name, it did not and could not in practice operate as a ‘one-stop shop’.
It could be argued that these days questions of status were increasingly being determined on a ‘self-help’ basis (which would increase if the basic law on divorce were to be reformed and simplified) ; and that financial matters were being decided in special financial proceedings meetings taking place outside the formal court structure. Thus the courts were increasingly used for determining questions relating to children. But these trends should not mean that the issue of whether the family court could become more of a one stop shop should not be investigated more closely.
It was the second set of arguments – for a more holistic approach to family justice – that I found interesting. Sir James is a keen advocate of ‘problem-solving’ courts – courts that have the resources and expertise to try to deal with all the problems families may face (including, for example, criminal matters or public law issues such as immigration status) – so that families can obtain a secure basis on which they can build their future lives.
This is an interesting argument and reflects (although Sir James may not have been aware of this) research and policy development a number of years back which argued that people don’t have discrete problems (e.g. housing, or employment, or family – which are categories created by lawyers which don’t reflect how life is actually lived) but ‘clusters’ of problems. This led to interesting experiments, now regrettably abandoned for the creation of Community Legal Advice Centres or Community Legal Advice Networks, that could deal with clients in a ‘holistic’ faction.
These views are controversial, at least for lawyers, since they would mean cutting across long established categorisation of the justice system – into criminal, civil, administrative and family justice system – each with their own practices, procedures and traditions. For this reason, my hunch is that Sir James’ views may not be taken forward, at least in the short-term.
But I thought his arguments were rather refreshing, and worth thinking about.
You can read his lecture at https://www.judiciary.uk/wp-content/uploads/2018/05/speech-by-pfd-what-is-family-law.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 