Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Repeal of the Fixed-term Parliaments Act: draft Bill published

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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/

Written by lwtmp

February 2, 2021 at 1:31 pm

The Fixed-term Parliaments Act: should it be amended or repealed?

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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.

The Constitution Unit Blog

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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Written by lwtmp

December 16, 2020 at 1:30 pm

Independent Review of Administrative Law

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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

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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:

  1. 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

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: R (on the application of Miller) (Appellant) v The Prime Minister (Respondent)

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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