Archive for the ‘Chapter 3’ Category
The Legal System of Wales – recent developments
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)
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.
Justice in Wales – a developing picture
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
Reviewing Parliamentary constituency boundaries: outcome of the 7th review.
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.
- 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.
- 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/
Post-implementation review of LASPO Part 2: the Jackson Reforms
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
Post-implementation Review: Legal Aid – progress report
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
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
The law-making process: consultation over-load?
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).
Slimming down the size of Parliament: the turn of the House of Lords
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/
Post-legislative scrutiny : LASPO 2012
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/.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 