Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Amending the doctrine of precedent? Proposals to permit departure from EU case law

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In 1966, the Supreme Court (then the House of Lords) issued a Practice Direction which asserted its authority to depart, in exceptional circumstances, from an earlier decision and thereby change what was regarded as settled law.

Occasions on which this power has been used have been rare. Between the publication of the Practice Direction in 1966 and the abolition of the House of Lords in 2009, the power was used around 25 times. And its use has been similarly restrained by the Supreme Court.

One specific context in which there can be pressure to override a precedent arises where a judgement from the European Court of Justice (or indeed the European Court of Human Rights) is incompatible with UK law.

A question which arises from the departure of the UK from the European Union is how, after the end of the transition period on 31 December 2020, UK courts should deal with cases from the European Court of Justice which will remain effective in the UK (technically known as ‘retained case law’).

The Government has announced a consultation on whether the principle that only the Supreme Court (and the High Court of Judiciary in Scotland) should have this power, or whether other courts should be given the same authority.

The Government’s preliminary view, on which the opinions of consultees are sought, is that the powers should be extended to either:

  • The Court of Appeal of England and Wales, the Inner Court of Session in Scotland, the Court of Appeal Northern Ireland and equivalent level courts throughout the UK; or
  • those courts plus the High Court of England and Wales, the Outer House of the Court of Session in Scotland, The Sheriff Appeal Court in Scotland, the High Court of Justiciary, and the High Court in Northern Ireland.

This raises an interesting possibility. Many years ago, the late Lord Denning argued that the Court of Appeal should have power to depart from its earlier decisions. He felt that because all the important cases went to the Court of Appeal it would be more efficient is they had the authority to make clearly needed changes to precedent, without the expense and delay of a further hearing in the Supreme Court. This view found no general support at the time.

However, if either of the Government’s options in the present consultation is taken forward, might this not lead to a revival of the views Lord Denning, which in turn could generate a somewhat wider argument about the powers of courts other than the Supreme Court to change binding precedent?

The consultation is at https://www.gov.uk/government/news/consultation-launched-on-post-eu-reforms-for-british-courts

 

 

 

 

 

Written by lwtmp

July 8, 2020 at 11:27 am

The Parliamentary Constituencies Bill 2020

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In recent months public attention on events in Parliament has been almost exclusively on the impact of the Covid 19 pandemic. Nonetheless, other important policy initiatives have been taking place, even though they may not have grabbed the headlines. One of these is the introduction of the Parliamentary Constituencies Bill 2020 in May 2020.

The United Kingdom is divided into 650 Parliamentary constituencies. Each constituency elects a Member of Parliament. Constituency areas are not, however, static. While the boundaries themselves may remain the same, the population within them may alter substantially, for example by the provision of new housing or the migration of people from a rural to an urban area.

If some constituencies have far larger numbers of people than other constituencies, it will be realised that to win an election based on a first past the post system, which applies to General Elections in the UK, a winner needs fewer votes in a constituency with a smaller number of voters than one in a constituency with a higher number of voters. To many, this seems unfair.

To reflect the changes that occur in constituencies, statutory agencies, called Boundary Commissions, are required to keep constituency boundaries under review. Historically this has taken place once every 5 years.

The basis on which boundary reviews were to take place was changed in 2011 when the then Coalition Government enacted the Parliamentary Voting and Constituencies Act 2011. This Act had two objectives:

  • to enable the holding of a referendum on whether a system of proportional voting should be introduced for Parliamentary elections (the referendum was held and the advocates of change lost the referendum);
  • to amend the system of constituency boundary review.

This second objective contained 2 noteworthy features. First, it reduced the number of parliamentary constituencies from 650 to 600. Second, it introduced the concept of the ‘electoral quota’ and provided that in carrying out its work, the boundary Commissioners should ensure that the number of constituents in any constituency was within 5% of the ‘electoral quota’. The electoral quota was to be established by dividing the total number of voters in the UK by the number of Parliamentary seats.

Although the Boundary Commissioners made recommendations for boundary changes, as they were required to do, in accordance with the Act of 2011, their recommendations were – for a variety of reasons never implemented.

When enacted, the new Bill will recommence the process of boundary review, but on a slightly changed basis.

  • First, the decision to reduce the number of constituencies from 650 to 600 has been dropped.
  • Second, the concept of the electoral quota, and ensuring that constituency sizes are within 5% of that quota figure is retained.
  • Third, the frequency of boundary reviews is reduced from once every 5 years to once every 8 years.
  • Other detailed changes relate to the consultation procedures to be adopted for undertaking reviews, and the process of presenting the outcomes of those reviews to Parliament.

The intention is that the next round of reviews should start early in 2021 so that they will be in place in time for the next General Election, which is likely to be in 2024.

For the policy background seehttps://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2020-03-24/HCWS183/

The Bill is at https://services.parliament.uk/Bills/2019-21/parliamentaryconstituencies/documents.html

 

 

 

 

 

 

Written by lwtmp

July 7, 2020 at 4:09 pm

Report of the Commission on Justice in Wales: summary of recommendations

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I have just published a short blog on the constitutional changes being made in Wales. As part of that, I mentioned the publication of the Commission on Justice in Wales, whose report was published in October 2019. I think it is an extremely interesting document, for two main reasons.

  1. There are a number of specific ideas in this report which should be considered more actively for implementation in England as well.
  2. It offers a holistic set of proposals for a distinct Justice system for Wales. I have long thought that justice policy in England was made in a piecemeal way. This report provides a model of what a comprehensive Justice Policy in England might look like.

Of course, it is easier for a new government to engage in forward planning at a time when its responsibilities are limited. But the ways in which different parts of the English legal system have been dealing with Covid 19 have often been innovative and imaginative. I would argue that this provides an opportunity, for those willing to seize it, for thinking about what a coherent modern justice policy for England might look like.

Anyway, I offer this summary, adapted from the Commission’s report as something that those interested in Justice policy in England might also like to consider.

Source: Commission on Justice in Wales at https://gov.wales/commission-justice-wales

Commission on Justice in Wales: Summary of recommendations

1. Information, advice and assistance

  • The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund.
  • Criminal legal aid policy and delivery should be based on the approaches to public defender schemes adopted by the Nordic nations.

2. Criminal justice: reducing crime and promoting rehabilitation

  • A new Wales Criminal Justice Board should be created. It should set an overall strategy for Wales including responsibility for ensuring the rights of victims are respected and there is proper delivery of services to victims.
  • The Police, Crown Prosecution Service, the judiciary and HM Prison and Probation Service should each publish a strategy in respect of Black, Asian and Minority Ethnic people in Wales and report annually on the strategy to the Assembly.
  • Policing and crime reduction policy, including drug abuse and mental health related issues, should be determined in Wales so that it is aligned and integrated with Welsh health, education and social policy.
  • Problem-solving courts should be established in Wales along the Northern Ireland model.
  •  Youth justice policy should be determined and delivered in Wales. The age of criminal responsibility should be raised to at least 12 years old.
  • A comprehensive network of services and centres as alternatives to custody should be established rapidly. An integrated and whole system approach to offender management should be established with a single rehabilitative strategy in Wales.
  • Needs assessments of Welsh offenders should be conducted to identify the range of interventions required in both prisons and the community.

3. Civil justice

  • Digital court services and other dispute resolution services that are being developed and introduced must be fully accessible to people throughout Wales.
  • Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge.
  • The feasibility of a low cost and effective resolution method for civil disputest hrough the use of a comprehensive ombudsmen scheme, taking into account the online court, should be examined.

4.  Administrative justice and coroners

  • All public bodies, ombudsmen and other tribunals which have been established under Welsh law or by the Welsh Government, which make judicial or quasi-judicial decisions, and are not currently subject to the supervision of the President of Welsh Tribunals, should be brought under the supervision of the President.
  • The Administrative Court should have the power to stay court proceedings whilst the Public Services Ombudsman for Wales investigates a complaint. The Ombudsman should have the power to refer a point of law to the Court.
  • The Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh Legislation.

5. Family justice: children

  • The law relating to children and family justice in Wales should be brought together in one coherent legal system aligned with functions in relation to health, education and welfare.
  • Pending further research and the development of a long-term strategy, an all Wales approach to family justice should be developed and led in Wales through the Family Justice Network for Wales and the Local Family Justice Boards. The approach should be followed by all local authorities for dealing with child protection referrals with the objective of avoiding care proceedings when family support would be more appropriate.
  • It should be a matter of routine practice prior to the first hearing in care proceedings to examine the feasibility of problem-solving and the form it might take, with a view to finding what steps short of taking a child into care can be put in place.
  • The voice of the child should be heard at every stage of the proceedings.
  • Family Drug and Alcohol Courts should be established in Wales
  • There should be vigorous support for a programme of research to underpin reform of Welsh family justice and associated preventative services. The overarching aim should be the reduction in the numbers of children taken into care and the provision of far better evidence of the impacts of intervention on family life.
  • A carefully thought through long-term policy for reducing the numbers of children taken into care should be developed after the conclusions of the research and then implemented.
  • Legal advice should be available to each parent in private family law disputes prior to the commencement of proceedings up to a maximum fixed amount in each case

6. Delivering justice: locality and structure

  • A strategy for Wales for provision of proper physical and digital access to justice before the courts, tribunals and other forms of dispute resolution should be drawn up and determined in Wales based on the needs of the people of Wales

7. The legal sector and the economy of Wales

  • The Welsh Government should, in close consultation with the legal professions, provide fully-funded legal apprenticeships to enable people to qualify as legal professionals in Wales.
  • There should be greater transparency about the level and distribution of expenditure on external legal services by the Welsh Government, each Welsh local authority and all other public bodies in Wales.
  • The procurement of barristers’ services should be reformed to help build the capacity of the Bar in Wales.
  • The Welsh Government should develop and implement as soon as possible our proposed strategy to reinvigorate the rural and post-industrial legal sector in Wales. It should provide strong support for investment in technology, especially in post-industrial and rural Wales.
  • The Welsh Government must provide clear leadership and support for the legal services sector. This should be targeted, user-friendly, flexible and attractive to potential inward investors especially with establishing a technology-based nearshoring centre as an objective.
  • The Welsh Government, legal professionals in Wales, the Law Society, the Bar Council, other professional bodies and academia should work in partnership. They should develop and promote the capabilities of the legal sector, promote South Wales as a legal centre and increase the export of legal services.

8. Knowledge, skills and innovation

  • Welsh law schools must reassess their undergraduate programmes to take advantage of the scope for comparative studies and transferable qualifications.
  • Law tech must be taught to all students and the professions across Wales.
  • All university and college education providers in Wales should teach Welsh law as part of the ordinary undergraduate syllabus and work together to produce the necessary material. The place of Welsh law and the distinctiveness of the law in Wales should be properly reflected in professional and continuing legal education and training. Wales specific data should be collected and published on a sufficient scale to enable disaggregation, with a view to proper evidence-based policy development and as a basis for research.
  • The Welsh Government should lead the development and implementation of an action plan to promote and support public legal education, particularly for children and young people.

9. The Welsh language

  • All justice bodies should be subject to the Welsh Language Measure 2011. The Bar, CILEx and the Law Society should provide courses on using Welsh in the workplace, similar to those used by the Judicial College. Digital services that are being introduced must be accessible, free help must be available and all must be available in Welsh at the same time as the English version.
  • Professional legal education for those wishing to practise in Wales must be available in the Welsh language with the phased introduction of the availability of all professional examinations in Welsh.  Welsh law schools must collaborate on Welsh medium legal education, especially as regards the provision of teaching materials. All coroner services should be available in the Welsh language.

10. Recommendations on devolution of justice

  • There should be legislative devolution of justice. Restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament In tandem with the removal of reservations and restrictions on the Assembly’s powers, responsibility for executive functions in relation to justice in Wales should be transferred to the Welsh Government.
  • Devolution of justice must be accompanied by a full transfer of financial resources, including all identifiable administrative and capital resources relating to Wales.

11. Recommendations to be implemented under the current scheme of devolution

  • Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution. The Assembly should take a more proactive role in appropriate scrutiny of the operation of the justice system.
  • The Welsh Government should address policy issues relating to justice by using external experts who can report jointly with civil servants to Ministers.
  • The Welsh Government and the legal sector should develop a joint leadership programme.
  • A Law Council of Wales should be established to promote the interests of legal education and the awareness of Welsh law, to ensure proper provision of teaching the law in Welsh, and to assist students in their education and training as future practitioners.
  • The organisation of the senior judiciary in Wales should be changed to provide the necessary working relationships and leadership within Wales.  Wales should be put in a similar position to Scotland and Northern Ireland in the Supreme Court as regards the appointment of judges to the Supreme Court.

12, Recommendations for implementation with legislative devolution

  • With legislative devolution, there must be a new Justice Department in the Welsh Government led by a Cabinet Minister.
  • The office of Counsel General should continue as an office that provides independent legal advice to the Welsh Government and heads the Government Legal Service in Wales.
  • Legislative devolution will require the establishment of a Justice Committee in the Assembly.
  • Where there is overlap between the roles of local, regional and national boards, committees and partnerships, they should be merged.
  • With legislative devolution, the governance arrangements for the police should be re-examined.
  • The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.
  • The present system where legal practitioners can practise in England and Wales and the legal professions are jointly regulated should be continued.
  • Legislation should provide for a High Court and a Court of Appeal of Wales to be established by the Assembly.
  • With legislative devolution, a Welsh Courts and Tribunals Service should be developed from the base of a Welsh Tribunals Unit reformed on the model of the Scottish Courts and Tribunals Service.
  •  With legislative devolution, the Welsh Government will need to review, and keep under continuing review, the justice infrastructure for Wales.

13. Action to be taken now by the Welsh Government and the Assembly

  • The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues. The Assembly should make arrangements to monitor and review the process of reform.

The Legal System of Wales – recent developments

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In my book, Introduction to the English Legal System, I write that the book is “about the English legal system (which includes at least for the present the legal system in Wales)”.

However, devolution has led to a number of developments which need to be noted which point to the creation of a distinct system of government for Wales. In this context it is possible to see the outlines of a new Welsh Legal system beginning to emerge.

1 The National Assembly of Wales – executive and ‘legislature’

The first Government of Wales Act 1998 (GOWA 98) began a process of devolving powers to Wales. It created a new body, the National Assembly of Wales. Under GOWA 98 this body had executive functions in delivering policy and services in specific areas such as agriculture, culture, economic development, education, health, housing, local government, social services and planning. Henceforth, the National Assembly became responsible for carrying those out in respect of Wales.

At the same time. the National Assembly was given limited legislative powers including the making of regulations, rules and orders, and the giving of financial assistance. The National Assembly was also the body which held the Welsh Government to account.

This blending of executive functions and parliamentary functions proved to be very confusing.

In fact, soon after the National Assembly of Wales was established an informal division was created between the ‘Welsh Assembly Government’ (Ministers and civil servants predominantly based in Cathays Park, Cardiff and other offices across Wales) and the ‘National Assembly for Wales’ (Assembly Members and officials based in Cardiff Bay).

2 National Assembly and Welsh Government

The informal division between the legislative and executive branches of the Welsh Government was formally recognised in the Government of Wales Act 2006 (GOWA 2006).

This established a newly constituted National Assembly as the legislature. It also created a separate executive – initially called the ‘Welsh Assembly Government’, later amended to the ‘Welsh Government’. It was made accountable to the National Assembly.

GOWA 2006 gave the National Assembly power to pass its own primary legislation – initially called ‘Assembly Measures’, from 2011 called  ‘Assembly Acts’. These Measures and Acts were limited to 21 areas of activity which were conferred on the National Assembly by the UK Parliament in Westminster. The Wales Act 2014 increased those power by giving the National Assembly limited taxation powers.

The Wales Act 2017 changed the system for determining the powers of the National Assembly from a ‘conferred powers’ model to a ‘reserved powers’ model. (This is consistent with the models adopted for Scotland and Northern Ireland.) In a reserved powers model, there is no specific list of devolved subjects. The model operates on the basis that everything is devolved unless it is reserved to the UK Parliament.

3. Senedd Cymru or the Welsh Parliament.

The increased importance of the Parliamentary function led politicians in Wales to argue that the name of the National Assembly should be altered to reflect more clearly its legislative function. After a period of consultation and legislation, the name of the National Assembly of Wales was changed, on 5 May 2020, to ‘Senedd Cymru or the Welsh Parliament’.  With full law-making powers and the ability to vary taxes, the new name will reflect its constitutional status as a national parliament.

4. A Welsh Justice system

Under the doctrine of the separation of powers, governments comprise 3 separate branches: a legislature, an executive and a judiciary. For Wales, the first two of these are now in place. Currently, there is no clearly delineated Welsh Justice system. There are, however, moves to change the current position.

  • Commission for Justice in Wales

The Welsh Government established a Commission for Justice in Wales in December 2017. It reported in 2019. It was chaired by Lord John Thomas, who had recently retired as the Lord Chief Justice for England and Wales.

Its report is a very wide-ranging one covering such issues as: legal aid and advice; new approaches to civil dispute resolution; new approaches to the sentencing and rehabilitation of offenders and the protection of victims of crime. I plan to summarise its principal recommendations in a separate blog item.

The work of the Commission for Justice has been complemented by a programme of social research, funded by the Nuffield Foundation, on the development of Administrative Justice in Wales, which has produced reports on matters including housing and education.

  • The Legislation, Justice and Constitution Committee Consultation

Arising from the Commission’s report, the Legislation, Justice and Constitution Committee of Senedd Cymru ran,  from March to June 2020, a consultation on Making Justice Work in Wales.  Its terms of reference stated that its work should be in 2 parts: (i) fact-finding and looking forward; and  (ii) analysis of how the justice system could operate more effectively in Wales

In Part 1, the Committee intends

  • To identify and map the Senedd and Welsh Government’s existing responsibilities and functions relating to the scrutiny of justice matters;
  • To identify and review the current funding arrangements for justice matters already within the responsibility of the Senedd and Welsh Government;
  • To consider the existing operation of justice functions in Wales, including Welsh Government policies in devolved areas and their interaction with the administration of justice;
  • To consider the impact of relationships between UK and Welsh competence on specific justice matters and to identify areas of concern;
  • To consider how the Senedd could have a more proactive role in the scrutiny of justice, including how justice bodies could engage with the Senedd.

In Part 2,  the Committee is asked:

  • Using results of Part 1, to explore any areas of concern in the balance of justice powers and accordingly whether a more coherent and joined-up approach to justice policy could be achieved;
  • To consider the implications, consequences and practicalities of any potential justice devolution;
  • To learns lessons on the approach to scrutiny of justice from the UK and other legislatures.

The outcome of the inquiry has not yet been published.

Sources:

General information about the Welsh Government is at https://gov.wales/

Information about Senedd Cymru is at https://senedd.wales/en/Pages/Home.aspx

The Commission on Justice in Wales Report is at https://gov.wales/commission-justice-wales-report

The Nuffield Foundation sponsored programme on Administrative Justice in Wales is at https://www.nuffieldfoundation.org/project/paths-to-administrative-justice-in-wales

Information about the Senedd Cymru Committee inquiry is at https://business.senedd.wales/mgConsultationDisplay.aspx?id=388&RPID=1017209288&cp=yes

 

 

 

 

A big day in the Supreme Court

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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.

Thus the issue in the present case was whether a 5-week prorogation was appropriate.
On this the justices were unanimous. They held unequivocally that such a long prorogation prevented Parliament from exercising its constitutional function of holding the Government to account.
The fallout from this decision is far from clear.
The Speaker of the House of Commons has announced that Parliamentary business will resume on Wednesday 25 September 2019. Will the Government take any steps to counter this decision?
One effect of prorogation is that Bills going through Parliament at the time of prorogation fall, and have to be reintroduced or carried over into the following session. (Where there is a general election, ‘carry-over’ is not possible.) What will happen in this instance?
Looking to the longer term, was one of the problems here that we do not have a written constitution in the United Kingdom that might have clarified in a basic law the process for prorogation? There are certainly some influential voices being heard that the time is approaching when we should adopt a written constitution.
All the written submissions made to the Supreme Court have been published on-line – as have all the hearings in the Court. This case will be studied by lawyers and politicians for years to come, and will divide opinion.
You can find all the material relating to the case at
https://www.supremecourt.uk/watch/prorogation/judgment.html,
https://www.supremecourt.uk/cases/uksc-2019-0192.html
https://www.supremecourt.uk/brexit/written-case-submissions.html

Justice in Wales – a developing picture

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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

 

Written by lwtmp

September 20, 2019 at 9:51 am

Reviewing Parliamentary constituency boundaries: outcome of the 7th review.

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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.

  1. 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.
  2. 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/

 

 

 

 

 

 

Written by lwtmp

September 19, 2018 at 5:30 pm

Post-implementation review of LASPO Part 2: the Jackson Reforms

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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

 

 

 

 

Written by lwtmp

September 15, 2018 at 3:29 pm

Post-implementation Review: Legal Aid – progress report

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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/

 

 

 

Explanatory notes to Bills and Acts

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Explanatory notes have been published alongside Bills and Acts for many years now.

There are legal purists who argue that no lawyer worth his/her salt should look at them; truly independent legal advice can only be based on the actual legislative words.

I completely disagree with this argument. In my view these notes are key to an understanding of what particular Acts of Parliament are about and are an essential ingredient in promoting the public understanding of law.

The Office of Parliamentary Counsel considered Explanatory Notes in a couple of short papers published in 2014 and 2015. (I missed them at the time.)

It is clear that there is no intention of abandoning the use of these Notes. Indeed, it is intended that their use and usefulness should be enhanced. A survey of users of legislation found that overwhelmingly the Notes were used by people consulting statutes on-line. At the same time, it also found that significant numbers of those using statutory material either did not know they existed or how to find them.

The two papers can be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/322113/Explanatory_Notes_survey_Jul_2013_report.pdf

and https://www.gov.uk/government/consultations/explanatory-notes-for-bills-new-format

 

 

 

Written by lwtmp

June 7, 2018 at 11:02 am