Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

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

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