Archive for the ‘Chapter 2’ Category
The Queen’s speech 2021: proposals affecting the English Legal System
In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.
Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.
It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.
But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.
A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.
Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.
A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.
A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)
Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.
Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.
Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.
The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes
End of the 2019-2021 Parliamentary Session: legislative and other outcomes
It feels as though the 2019-2021 Parliamentary session, which started immediately after the election of the Boris Johnson Government and has just come to an end has gone on for ever. The dramas of Brexit were anticipated; those of the Covid-19 pandemic were certainly not. This note looks at some of the key outcomes from this session, in particular those that impact on my book, Introduction to the English Legal System, the 15th edition of which will be published soon.
As I have written before, despite all the attention and time that needed to be spent on dealing with the pandemic, four important pieces of legislation managed to get through the Parliamentary process.
The Divorce, Dissolution and Separation Act 2020 and the Sentencing Act passed in 2020. Both have been considered in these notes and are included in the new edition of the Book.
Two other important pieces of legislation completed their parliamentary journey in the dying days of the 2019-2021 session.
First is the Domestic Abuse Act 2021 which should have a major impact on how domestic abuse is dealt with by the police, social authorities and the courts. I have written about this legislation before (see 15 March 2019, 21 May 2020, and 23 July 2020). A Press Release summarizing the key features of the new Act – which has taken a long time to reach the statute book – is at https://www.gov.uk/government/news/landmark-domestic-abuse-bill-receives-royalassent .
The other Act which should be noted here is the Counter-Terrorism and Sentencing Act 2021, about which I have also written before (on 22 July 2020). This is designed to strengthen provisions relating to the detention and monitoring of those convicted of terrorist offences. See the press release at https://www.gov.uk/government/news/longer-jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent for a brief overview of this Act.
This Act needs to be kept distinct from the quite separate Police, Crime, Sentencing and Courts Bill. This was not introduced into Parliament until March 2021. It has already attracted considerable public attention, with demonstrations against the Bill being held in many cities throughout the country.
The Bill picks up proposals in the Smarter Approach to Sentencing White Paper, about which I wrote here on 9 October 2020. But it also reflects earlier Conservative Party manifesto pledges. An extremely helpful background note, setting out both the origins of the Bill and it principal features can be found in the House of Commons Library Research Briefing at https://commonslibrary.parliament.uk/research-briefings/cbp-9158/ which was published in March 2021.
Media headlines are focused on issues relating to powers to limit the right to protest peacefully, but there is a great deal more in this wide-ranging Bill. This Bill will be brought back to Parliament once the new 2021-2022 session gets under way.
Also worth mentioning in this context is the Parliamentary Constituencies Act 2020. This provides for major changes to the boundaries of parliamentary constituencies, to try to ensure that there is approximately the same number of voters in each constituency. This is an idea that has been around for some time – originally linked with proposals to reduce the number of MPs in the House of Commons. This aspect of the changes has been abandoned. The work of redrawing the boundaries will be undertaken by the Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland. Final reports are due by 1 July 2023. See further https://www.gov.uk/government/news/new-law-passed-will-make-voting-in-uk-general-election-fairer
What the legislative landscape for the next 12 months will look like will become clearer after the Queen’s Speech, which will be delivered on 11 May 2021. This will be the subject of a separate note.
Independent Human Rights Act Review: an update
The review of the Human Rights Act, chaired by Sir Peter Gross, has completed the first stage of its work, namely the receipt of written evidence, addressing the issues raised for consultation by the review team. Over 150 papers were received in total/
The submissions have recently been made publicly available.
The review is in the process of holding a number of public roadshows – to be hosted by six different law schools around the country. These are scheduled to take place during May 2021.
For links to the submissions and information about the roadshows go to https://www.gov.uk/guidance/independent-human-rights-act-review
Repeal of the Fixed-term Parliaments Act: draft Bill published
The Fixed-term Parliaments Act 2011 was enacted as part of the agreement reached between the Conservative and Liberal Democrat Parties, when, in 2010, they formed the coalition government led by David Cameron. The idea of fixed-term parliaments had been around for many years. The problem has been that when a political party becomes a government, statutorily fixed-terms reduce the freedom Prime Ministers have long had to decide when they wanted to call an election would be constrained. Those in power have been reluctant to give up this freedom. (There is of course an overall limit – that an election much be called at least every 5 years.)
In 2011, the creation of the Coalition Government changed the political landscape. It was felt that, without setting a timetable for elections, there could be considerabe political instability if the majority partner in the coalition had the freedom to call an election when the opinion polls looked favourable, which could potentiallyhave left the minority in the lurch. The General Election 2015 was conducted within the framework laid down in the 2011 Act.
In 2017, the statutory framework was shown to be considerably less rigid than the title of the Act might have suggested. Mrs May, who had become Prime Minister in 2016, following the Brexit Referendum, thought good polling figures would give her a chance of establishing a more stable Government than that which followed the 2015 election. She was able to hold an election in 2017 because the Act provided that, where the House of Commons voted by a 2/3rd majority in favour of holding an early General Election. The political circumstances at the time enabled her to achieve that result.
In 2019, as the Brexit negotiations were drawing to a close, the Government – now led by Boris Johnson – wanted to find a way of ensuring that it could get a Brexit agreement through the Parliament. The Parliament was so divided on the issue that three attempts to get Parliamentary approval of a draft agreement failed. Mr Johnson thought that one way out of this difficulty would be to be to hold a general election which, if he won, would put the Brexit Agreement at the heart of Government policy. However, he could not do this because the statutory conditions for getting around the Fixed-term Parliaments Act timetable were not met. He did not have a 2/3rd majority in favour of holding a General Election (the route used by Mrs May) nor had he lost a vote of confidence which could also have triggered the calling of an early General Election.
Instead, he tried to prorogue Parliament – bringing one session to an end and starting a new session. But his purported use of the prerogative power to prorogue, which would have resulted in Parliament being totally shut down for 5 weeks, was ruled to be unlawful by the Supreme Court. (See R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.) He finally achieved his goal by getting Parliament to sidestep the Act through the enactment of the Early Parliamentary General Election Act 2019.
One item in the Conservative Party’s election manifesto for the 2019 General Election was that, if elected, a Conservative Government would repeal the Fixed-Term Parliaments Act. In December 2020 the Draft Fixed Term Parliaments Act (Repeal) Bill was published.
In fact, the Fixed Term Parliaments Act contained a built-in mechanism for its own review. Section 7, added during its parliamentary passage in 2011, provided that between June and November 2020 the Prime Minister should arrange for a committee to review the operation of the Act. That committee was established in November 2020, with 14 MPs and six members of the House of Lords. It is this Committee, chaired by former Conservative Chief Whip Lord (Patrick) McLoughlin, that is now considering the draft Bill.
Two parliamentary committees had already reviewed the operation of the FTPA: the Lords Constitution Committee (2019), and the Commons Public Administration and Constitutional Affairs Committee (2020). Both raised important questions of principle about the whole idea of creating fixed-term parliaments. Was it right, in principle, that a Prime Minister should have the prerogative power be able to choose an election date? Why should general elections not be held within a timetable agreed by Parliament? The policy arguments in favour of fixed term parliaments as well made in an article by Robert Hazell from the Constitution Unit.
One feature of the draft Bill is that it includes provisions designed to prevent the courts from intervening in any decision taken by a Prime Minister to call an election. Two public lawyers, Professor Elliott and Professor Young, have given their views on the Bill including a consideration of whether the Bill’s attempt to restore the Executive’s prerogative power to determine the date for an election also mean that the potential for a challenge in the courts that an exercise of that power has been unreasonable can be eliminated.
Although the repeal of the Fixed Term Parliaments Act might at first sight seem like a rather narrow issue, it does raise important policy and legal issues which must be considered both while the current Bill is in draft form, and after any legislation has been enacted.
For further information, see the following articles:
By Robert Hazell at https://constitution-unit.com/2020/12/11/the-fixed-term-parliaments-act-should-it-be-amended-or-repealed/
By Professor Elliott at https://publiclawforeveryone.com/2020/12/02/repealing-the-fixed-term-parliaments-act/
By Professor Young at https://ukconstitutionallaw.org/2020/12/04/alison-l-young-the-draft-fixed-term-parliaments-act-2011-repeal-bill-turning-back-the-clock/
Review of the Human Rights Act 1998: latest news
Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.
Evidence is sought on two specific issues:
The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.
The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.
The time for responding is short. Submissions have to be in by 7 March 2021.
The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.
Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents
Responding to Human Rights Judgments: 2019 to 2020 – new report
Just a few days ago (18 December 2020) I noted the establishment of the Independent Review of the Human Rights Act 1998, to be chaired by Sir Peter Gross. One of the documents the review will, have to consider is the latest report by the Government to the Joint Committee (of the House of Lords and the House of Commons) on how it has been responding to judgements of the European Court of Human Rights (ECtHR). Despite its title, it covers a longer period than 2019-2020. Indeed, it provides important background on how the European Convention on Human Rights impacts on the UK.
What strikes me is, that while there have undoubtedly been a small number of controversial cases that have gone to the ECtHR over the last 20 years, the overall impact has been much more limited than many of the stories in the print media might suggest.
It is striking to see that the numbers of cases against the UK Government is actually very small – and many of the cases started are dismissed as disclosing no cause of action.
In the small number of cases which go against the UK Government, the outcomes of the Court seem to me sensible and balanced. (The low numbers may reflect the fact that, as a result of the enactment of the Human Rights Act 1998, it is easier to argue Convention issues in the UK courts than it used to be.)
Even where cases are taken in the UK Courts, the numbers of declarations of incompatibility made by the UK courts are also very small, and most being dealt with by changes to regulations rather than major legislative changes.
The report is available at https://www.gov.uk/government/publications/responding-to-human-rights-judgments-2019-to-2020
Review of the Human Rights Act 1998
In its Election Manifesto for 2019 the Conservative Party announced that it wished to review the operation of the Human Rights Act 1998.
For a number of years, some politicians had been argung for a repeal of the act and its possible replacement with a ‘British Bill of Rights’. That idea never gained broad political support and seems to have fallen away. Certainly the announcement, on December 7 2020, of the current review states, in terms, that the Government remains committed to the European Convention on Human Rights.
According to the official announcement, the new review – chaired by retired Court of Appeal judge, Sir Peter Gross – has the following tasks. It will consider:
- The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
- The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
- The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.
The review is stated to be limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.
The announcement of the review also says that the new review ‘runs alongside’ the independent review of Judicial Review and ‘is part of the government’s work to deliver the commitment in the Manifesto to look at the broader aspects of the constitution and the relationship between the Government, Parliament and the courts’.
It seems that these 2 reviews, taken with ‘others to be announced in due course’ will deliver the ‘Commission on Constitution, Democracy, and Rights’ which the Government said it wished to establish. It is not at all clear whether there will be a separate Commission, or whether these separate reviews will, in some way, be welded together into some kind of final statement of policy. I would have thought that a distinct Commission would be essential to ensure that the outcomes from specific reviews were coherent.
The announcement of the HRA review is at https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act
I noted the review of judicial review at https://martinpartington.com/2020/08/07/independent-review-of-administrative-law/. See also https://martinpartington.com/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/
The Fixed-term Parliaments Act: should it be amended or repealed?
A really interesting discussion about the proposed repeal of the Fixed Term Parliament Act, noting that there are more issues involved than might at first appear.
A parliamentary committee has been established to review the effectiveness of the Fixed-term Parliaments Act 2011. Rather than wait for its conclusions, the government has published a draft bill designed to return control of the timing of general elections to the executive. Robert Hazell examines the issues the committee will have to consider, and proffers some possible improvements to the status quo.
On 1 December the government published its draft bill to repeal the Fixed-term Parliaments Act 2011 (FTPA). This would implement the commitment in the Conservative 2019 manifesto, which pledged: ‘We will get rid of the Fixed Term Parliaments Act – it has led to paralysis when the country needed decisive action’. The bill would revert to the previous system, and restore the prerogative power of dissolution. As the government’s Foreword explains:
The Bill makes express provision to revive the prerogative power to dissolve Parliament. This means once…
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Independent Review of Administrative Law
In an earlier blog (13 July 2020), I noted the House of Lords Library paper on the proposed Constitution, Rights and Democracy Commission, an idea contained in the Conservative Party manifesto for the 2019 General Election.
Although no further steps towards the creation of the Commission have been announced, at the end of July 2020 the Government announced that it was establishing an independent review of administrative law to look in particular at judicial review – the power of the courts to review and where necessary overturn a decision made by Goverment.
Governments frequently complain that the use of judicial review can prevent them from taking decisions they think are necessary. Defenders of judicial review argue that the principle of the rule of law demands that executive/administrative actions can only be taken if they are authorised by law.
The Independent Review, chaired by Sir Edward Faulks QC, a former Minister of State for Civil Justice, has been asked to examine a number of questions relating to judicial review.
The Terms of Reference for the Review state that the Review should
- examine trends in judicial review of executive action, in particular in relation to the policies and decision making of the Government;
- bear in mind how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law;
- consider data and evidence on the development of JR and of judicial decision-making and consider what (if any) options for reforms might be justified.
More specifically the review has to consider:
1. Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality (an area of law developed by the judges) should be codified in statute;
2. Whether the legal principle of non-justiciability (i.e. that certain types of decision cannot be reviews in the courts) requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
3. Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
4. Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing – i.e. deciding who can bring an action by way of judicial review; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners (the ability of bodies not parties to an action to intervene in the action by providing specialist advice or assistance).
The Review has been asked to report by the end of 2020. Recommendations will be considered by the Lord Chancellor and the Chancellor for the Duchy of Lancashire, Michael Gove.
Although the announcement does not state this, the creation of this panel is, at least in part, a result of the decision of the Supreme Court in R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41. The issues in the case were noted in this blog on 24 September 2019. Although it was argued that the Prime Minister’s use of the prerogative to prorogue Parliament (i.e. bring a Parliament to an end prior to the holding of a General Election) was non-justiciable – i.e. it could be reviewed by the Court, the Supreme Court rejected this argument and found exercise of the power was justiciable. Further, there the effect of the Prime Minister’s decision was to prevent all Parliamentary activity for 5 weeks, this was far more than necessary to prepare for a General Election and so went beyond the scope of his prerogative power and was unlawful.
The announcement of the review and links to the Terms of Reference are at https://www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review
The Supreme Court decision in the Miller case is at https://www.supremecourt.uk/cases/uksc-2019-0192.html
Counter-Terrorism and Sentencing Bill 2020
So far as the legal system is concerned (and in many other contexts as well) the headlines have all been about dealing with Covid-19. But this does not mean we should not keep an eye on other developments which will have an impact on aspects of the legal system.
One example is the Counter-Terrorism and Sentencing Bill 2019-21, introduced in the House of Commons in May 2020, and which yesterday (21 July 2020) completed the Report Stage and Third Reading. It now proceeds to the House of Lords.
This Bill is a second response to two terror attacks which occurred in London – at Fishmongers Hall on 29 November 2019 and in Streatham on 2 February 2020. Each attack was committed by a known terrorism offender who had been released automatically at the halfway point of their sentence without any input from the Parole Board. There was no provision to allow for an assessment of risk prior to release.
The first response was the enactment of emergency legislation, the Terrorist Offenders (Restriction of Early Release) (TORER) Act 2020. This was designed to ensure that terrorist offenders serving or sentenced to a determinate sentence could not be released before the end of their custodial term without the agreement of the Parole Board.
The Counter-Terrorism and Sentencing Bill 2019-21 develops the law on the handling of those found guilty of terrorist offences further. It has two broad objectives:
- Longer periods in custody
Reflecting the seriousness of the offences they have committed, the Government hopes that the changes will offer better protection for the public and more time in which to support the disengagement and rehabilitation of offenders through the range of tailored interventions available while they are in prison.
Among the measures in the Bill are:
- Serious and dangerous terrorist offenders will spend longer in custody, by introducing the Serious Terrorism Sentence for the most serious and dangerous terrorist offenders. This sentence carries a minimum of 14 years to be spent in custody, with an extended licence period of up to 25 years.
- This legislation removes the possibility of an early release from custody for serious and dangerous terrorist offenders, aged under and over 18, who receive an Extended Determinate Sentence.
- This legislation increases the maximum sentence that the court can impose for three terrorism offences (membership of a proscribed organisation, supporting a proscribed organisation, and attending a place used for terrorist training), from 10 to 14 years.
- The courts will be given power to find any offence with a maximum penalty of more than two years to have a terrorist connection. (This may result in a higher sentence than would otherwise be the case.)
2. Changes to the management and monitoring of terrorist offenders.
The measures in the Bill include:
- extending the scope of the sentence for offenders of particular concern (SOPC) by expanding the list of terrorist and terror-related offences which attract the sentence, and creating an equivalent sentence for offenders aged under 18 in England and Wales, Scotland and Northern Ireland. This will ensure terrorist offenders have a minimum period of supervision on licence of 12 months following release.
- extending the maximum licence periods for serious and dangerous terrorist offenders for offenders aged under and over 18.
- extending the application of mandatory polygraph testing when on licence to terrorist offenders aged over 18.
The Bill’s measures will also
- strengthen Terrorism Prevention and Investigation Measures (used by Counter-terrorism Police and the Security Services),
- support the use of Serious Crime Prevention Orders in terrorism cases, and
- expand the list of offences that trigger the Registered Terrorist Offender notification requirements. These changes strengthen our ability to manage the risk posed by those of terrorism concern.
Details of the Bill and background fact sheets are available at https://www.gov.uk/government/publications/counter-terrorism-and-sentencing-bill.
The Bill and the Explanatory Notes are at https://services.parliament.uk/Bills/2019-21/counterterrorismandsentencing.html
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 