Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

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/

 

 

 

 

 

 

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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

The law-making process: consultation over-load?

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In Chapter 3 of the book, I suggest that the legislative process passes through a number of stages:

  • ideas set out in the party election manifesto of the winning political party;
  • (sometimes) publication of a Green paper – setting out ideas for law reform;
  • (more frequently) publication of a White paper – setting out firmer proposals for changing the law
  • publication of a Bill – putting the proposed changes into draft legislative form.

Of course, real life is not as clear-cut as that.

I was struck, however, by an article that recently appeared in The Times (30 March 2018) under the heading “Hundreds of government pledges the Tories have quietly forgotten”. Investigators from the newspaper stated that, since 2015, 1,661 consultations that have been launched by the present government. In most cases, there is little sign that the results of the consultations are either being analysed or acted upon. And given that consultations cost, on average, £40,000, this represents a waste of cash resources as well.

The authors state “Whitehall guidelines say there should be an official response within three months outlining steps for new policy or legislation. However, the government website shows that almost a third of the Tories’ consultations have had no such response and 202 out of 898 that started before the end of 2016 remain incomplete.”

Thus what might seem to be an important source of ideas for legislative change turns out to be somewhat underwhelming. Sorting out legislative priorities is a challenge for any government, but it is important that, when the public is asked for its views on possible reform ideas, it should feel that its views are taken into account, even if not acted upon in the way respondents might hope for. If the public starts to think that ‘consultation’ – which might imply some action – is being used, instead, as an excuse for inaction, this does not seem to me to be a sensible use of the consultation process – which should encourage engagement in the policy/law-making process.

The Times article is at https://www.thetimes.co.uk/article/hundreds-of-government-pledges-the-tories-have-quietly-forgotten-6kwt879bg 

(This may be behind a paywall).

 

 

 

Written by lwtmp

April 23, 2018 at 3:40 pm

Slimming down the size of Parliament: the turn of the House of Lords

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I have commented before on current plans to reduce the size of the House of Commons from 650 to 600 MPs. The process, taking place under the Parliamentary Voting System and Constituencies Act 2011, has already been subject to delay. And, there is much speculation that the revised date for implementation (sometime in 2018) will either be further delayed or even abandoned. (See this blog October 30 2017.)

A somewhat similar exercise has been launched in relation to the House of Lords. As the House of Lords is not an elected body, a reduction in size cannot be achieved simply by reducing the number of Parliamentary Constituencies. Instead, other steps have to be adopted if its numbers are to reduce.

In 2017, Lord Burns was asked by the Lord Speaker to chair a Committee on how this might be achieved. The Burns report, which was published in October 2017, sets out a programme for size reduction over the next ten years. Among the recommendations are that membership of the House of Lords should be limited to 15 years (currently appointments are for life); and that until the target number of reached only 1 new member should be appointed for every two members whose appointments end.

To date the report has been debated in the House of Lords (December 2017) and is now being examined by the Public Administration and Constitutional Affairs Committee of the House of Commons. Final decisions have not yet been taken.

Lord Burn’s Report can be read at https://www.parliament.uk/size-of-house-committee. 

The Lords’ Debate is at https://www.parliament.uk/business/news/2017/december/lords-debates-size-of-the-house-report/.

The Select Committee on Public Administration and Constitutional affairs is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/public-administration-and-constitutional-affairs-committee/inquiries/parliament-2017/lord-speakers-committee-size-house-17-19/

Written by lwtmp

April 4, 2018 at 3:43 pm

Posted in Chapter 3

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Post-legislative scrutiny : LASPO 2012

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The concept of the post-legislative scrutiny was introduced in 2008, following a report on the idea, published by the Law Commission in 2006.

Now called ‘Post Implementation Review’, the Government has decided to subject Part 1 of the  Legal Aid, Sentencing and Punishment of Offenders Act, 2012 (LASPO) to such a review. This is the part of LASPO which deals with legal aid.

The effect of LASPO was to make significant cuts to the provision of legal aid in England and Wales. There have been many calls – from the legal profession, from the judiciary and from those working in the advice sector, among others –  for those cuts to be reversed.

The Low Commission (2014) and the Bach Commission’s Report (2017) argued that the cuts had led to legal advice deserts and were having an adverse impact on the citizens’ access to justice.

The Government has recently (March 2018) set out the terms of reference for what it calls the ‘consultation’ phase of the LASPO review and has invited the submission of evidence on the impact of the 2012 changes.

The process is currently being monitored by the Select Committee on Justice. It has recently published correspondence with the Secretary of State for Justice.

It may also be noted that criminal legal aid barristers are currently threatening strike action on the impact of changes to the rates of pay they receive for doing criminal legal aid work.

It is likely that many of the submissions to the review will argue for the restoration of cuts imposed 5 years ago.

My view is that a roll-back to the pre-LASPO position is extremely unlikely. More likely is  a renewed emphasis on ways of improving the provision of front-line advice, to try to enable more people to undertake legal work for themselves. There will also be an emphasis on new processes for handling legal disputes which might be easier for people to operate themselves.

It would be nice to think that the innovative ideas of the Low Commission for a new National Strategy for Advice and Legal Support would be put in place, supported by its proposed National Advice and Legal Support Fund. But, in the absence of strong lobbying from the public in favour of these ideas, I have my doubts as to whether these will gain political traction.

For the terms of reference of the consultation, see https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/686576/pir-laspo-terms-of-reference.pdf

The Select Committee on Justice is at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/.

 

 

 

 

 

 

 

 

 

Written by lwtmp

March 24, 2018 at 4:35 pm