Archive for September 2019
A big day in the Supreme Court: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)
Major cases raising fundamental constitutional issues are rare, which is why 24 Sept 2019 is a significant day. The supreme court ruled that the Prime Minister’s decision to prorogue Parliament for 5 weeks was unlawful.
For the Prime Minister, it was argued, in essence, that the prorogation of Parliament is an act which falls within the scope of the Prerogative (acts formerly taken by the monarch in person, now taken by Ministers). As an essentially political decision, it should not be capable of review by a court – in the technical language it was not ‘justiciable’.
The Supreme Court – sitting with 11 justices – ruled unanimously that it was possible for the courts to judicially review the exercise of prerogative power – to determine whether such exercise fell within the accepted boundaries for the use of such powers. In short, the review of the power to prorogue was a justiciable matter.
That alone did not mean that the Government had acted unlawfully. Prorogation is an important part of the Parliamentary calendar. It brings one Parliamentary session to a close. Ministers then prepare a Queen’s Speech which sets out the Government’s legislative priorities for the coming 12 months. Members of the Supreme Court accepted that a prorogation for a short period was necessary, even though Parliament could not function during that period.
However, the justices accepted evidence (including evidence from the former Prime Minister Sir John Major) that in recent years prorogations tended to be for between 4 and 6 days. That was the average amount of time needed to sort out the Queen’s Speech.
The key point about a prorogation is that it brings all the work that can be carried on in Parliament to a complete standstill. No Committees can work, no Parliamentary Questions can be answered. Prorogation is distinct from recess when Parliament does not sit (e.g. in holiday periods) but other Parliamentary business does continue.
Justice in Wales – a developing picture
Until relative recently it was possible to state that, for all practical purposes, the justice system in Wales was the same as the justice system in England.
Since devolution began, following enactment of the Government of Wales Act 2006, this statement needs qualification. Following the passing of the Wales Act 2017, the pace of change has quickened.
Two major initiatives are in progress. First, an Independent Expert Advisory Committee has been looking at the operation of Justice in Wales. Second, the former Lord Chief Justice, Lord Thomas, has been commissioned by the Welsh Government, to undertake a review of justice arrangements in Wales.
Lord Thomas’s review is expected in Autumn 2019. This note reports on the first report from the Independent Expert Advisory Committee.
The Committee’s terms of reference are to:
- review the operation of the justice system in Wales on an ongoing, periodic basis.
- make recommendations that ensure that the justice system in Wales keeps pace with both Assembly and Parliamentary law making within the single jurisdiction.
- monitor the effectiveness of administrative arrangements on justice in Wales and make recommendations to deliver efficient and effective justice services across the devolution boundary, building on examples of good practice and co-operation.
The report states:
The Committee is considering the effects of laws passed by the National Assembly for Wales and the UK Parliament on the operation of the justice system within the single legal jurisdiction in England and Wales and is working strategically to identify key challenges in the justice landscape in Wales, how they can be overcome and wider opportunities for better administration of justice.
These challenges and opportunities cover all areas of the single legal jurisdiction, including criminal justice arrangements; courts and tribunals; prisons and probation; legal practice and the judiciary.
The Committee is also monitoring any issues relating to the relationship between reserved and devolved tribunals.
The Committee is also considering the wider implications of policy developments in UK government on the operation of justice in Wales, in order to recommend sustainable long-term solutions that would improve delivery. This work provides opportunity for a structured approach to tackling challenges identified in this first report on the operation of justice in Wales.
The report also states:
The key issues the Committee are currently focusing on are divergence in laws and accessibility of Welsh laws. The main priorities are to ensure that the impacts on the justice system of diverging laws and legislation are properly identified, accessibility of Welsh laws is improved and that there is continually improving collaboration between the MoJ and Welsh Government officials.
This is therefore work in progress, the outcomes from which are not yet clear. But what is clear that over coming years the justice system in Wales will increasinly diverge from that in England – an issue on which lawyers both in England and Wales will need to take note.
The first report of the Independent Expert Advisory Committee is at https://www.gov.uk/government/publications/justice-in-wales-first-report-of-the-independent-advisory-committee-on-justice-in-wales
Reviewing the Criminal Legal Aid fee schemes
There is increasing recognition that the criminal legal aid scheme is not delivering an adequate service for the Criminal Justice system. Practitioners have long argued that cuts have gone too far; there have been strikes, threats of strikes and last minute deals cobbled together to try to stop the wheels falling off the bus completely.
In December 2018 the Government announced that there would be a more fundamental review of the criminal legal aid scheme.
More detail about the scope of the review was announced in March 2019. Thus the review will consider criminal legal aid throughout the life cycle of a criminal case, including:
- pre-charge advice at the police station, advice and advocacy services in the Magistrates’ Court and Youth Court, and advice and advocacy for prisoners
- advice and litigation services in the Crown Court through the Litigators’ Graduated Fee Scheme (LGFS)
- advocacy services in the Crown Court through the Advocates’ Graduated Fee Scheme (AGFS)
- litigation and advocacy services for very high cost Crown Court cases though the Very High Cost Case (VHCC) Scheme
The review will also consider wider changes to the justice, social, economic, business and technological landscape that are impacting on the criminal legal aid system – including, but not limited to:
- Her Majesty’s Court and Tribunals Service (HMCTS) reform, including the digitisation of the criminal trial process;
- the Attorney General’s review of disclosure of evidence, and the need to prevent trials collapsing because of failure to disclose evidence; and
- wider modernisation work being pursued by the Home Office and the police.
The Government has stated that the overall objectives of the review are:
(1) To reform the criminal legal aid fee schemes so that they:
- fairly reflect, and pay for, work done
- support the sustainability of the market, including recruitment, retention, and career progression within the professions and a diverse workforce
- support just, efficient, and effective case progression, limit perverse incentives, and ensure value for money for the taxpayer
- are consistent with and, where appropriate enable, wider reforms
- are simple and place proportionate administrative burdens on providers, the Legal Aid Agency (LAA), and other government departments and agencies
- ensure cases are dealt with by practitioners with the right skills and experience
(2) To reform the wider criminal legal aid market to ensure that the provider market:
- responds flexibly to changes in the wider system, pursues working practices and structures that drive efficient and effective case progression, and delivers value for money for the taxpayer
- operates to ensure that legal aid services are delivered by practitioners with the right skills and experience
- operates to ensure the right level of legal aid provision and to encourage a diverse workforce.
The plan is to produce a report by the end of Summer 2020.
As part of this peogramme the Crown Prosecution Service has been undertaking work to develop proposals for the remuneration of prosecution lawyers. It plans to finish this work by the end of September 2019.
As interim measures, the CPS has proposed changes to fees payable to prosecutors to be implmented from 1 Sept 2019. In addition, the Ministry of Justiice has agreed with the Criminal Bar Association and the Bar Council that the elements of the review will be accelerated:
- consideration of the issue of unused material;
- fees paid for cracked trials; and
- uplifts in paper-heavy cases.
The intention is for interim proposals to be made by the end of September. The impact of the prorogation of Parliament and the possibility of a General Election may alter these timings.
Details about these developments may be found at:
For the overall review https://www.gov.uk/guidance/criminal-legal-aid-review#history
For the CPS work see https://www.cps.gov.uk/cps/news/proposal-between-crown-prosecution-service-ministry-justice-attorney-general-criminal-bar
Re-thinking legal services regulation
I have reposted this excellent blog by Stephen Mayson, who is undertaking very important work on the need to further reform the regulatory structures for the legal professions.
My interim report for the Independent Review of Legal Services Regulation in England & Wales is published today (available here). This post is extracted from it.
While the reforms of the Legal Services Act 2007 have been mainly beneficial overall, that legislation might best be characterised as an incomplete step towards restructuring legal services regulation.
For reasons that are understandable, it did not fully follow through on some key elements of the regulatory structure. These include: review and reform of the reserved legal activities (those few activities that must be provided by lawyers); the known regulatory gap (as a consequence of which the non-reserved activities of lawyers are regulated, but those of non-lawyers can legally be provided but cannot be regulated – to the potential detriment of consumers); and the separation of regulation from professional representative interests.
This lack of follow-through has led to increasing challenges to the integrity…
View original post 1,603 more words
Unduly lenient sentences: scheme extension
For many years, the victims of a number of serious crimes have been able to make an application to the Solicitor General that the sentence imposed in their case was too lenient. Crimes such as murder, robbery, and a range of terror offences were covered by the scheme.
If the Solicitor General agrees he/she may refer the case to the Court of Appeal for a reconsideration of the sentence. In 2018, around 100 convicted criminals had their sentences increased under this scheme.
In its Victims Strategy, published in November 2018, the Government stated that it would review the scheme to see whether it should be extended to more offences.
The Government has announced (September 2019) that there should be an extension of the scheme to 14 further offences, including offences of controlling and coercive behaviour, as well as child sexual abuse offences, such as those involving the taking, distributing and publishing of indecent images of children and abusing a position of trust with a child.
Implementation of these decisions requires the approval of secondary legislation which is expected in the autumn 2019.
Further details of the changes is at https://www.gov.uk/government/news/more-victims-able-to-challenge-unduly-lenient-prison-sentences.
The Victims Strategy 2018 was noted in this blog on 29 November 2018
New Victims’ Commissioner appointed
In June 2019, Dame Vera Baird replaced Baroness Newlove as the Victim’s Commissioner. Her appointment is for 3 years.
See https://www.gov.uk/government/news/dame-vera-baird-appointed-as-new-victims-commissioner
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 