Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘Chapter 3’ Category

Post-legislative scrutiny : LASPO 2012

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

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

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

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

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

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

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

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

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

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

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

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

 

 

 

 

 

 

 

 

 

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Written by lwtmp

March 24, 2018 at 4:35 pm

Law Commission: 13th Programme announced

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After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.

The list is an interesting one containing a wide variety of topics.

A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).

The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.

There is a number of projects that will examine  how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.

Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.

In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.

The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.

Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/

 

 

 

Written by lwtmp

December 14, 2017 at 12:14 pm

Posted in Chapter 3, Chapter 4

Tagged with ,

Prisoners’ voting rights: recent developments

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For over a decade there has been a stand-off between the UK Government and the European Court of Human Rights on the question of whether prisoners should have a right to vote. The law in the UK is that they should not. The European Court of Human Rights took the view that a blanket ban was a denial of the right to vote provided for in the European Convention on Human Rights.

The Coalition Government got as far as publishing a draft Bill setting out a number of options for resolving the impasse (which included doing nothing) in 2013. I noted this in this blog in August 2014. Since then the issue has gone very quiet.

It appears that towards the end of 2016, the Government did issue an undertaking to the Council of Europe that is would do something by the end of 2017. Readers of this blog might be forgiven for not spotting that, in fact, the Government has recently done just that. Not a Bill, as many of us has been expecting, but in the form of a Statement to Parliament.

On November 2nd 2017, the Secretary of State for Justice said (in part):

[T]he Government has considered this issue carefully. We have decided to propose administrative changes to address the points raised in the 2005 judgment, while maintaining the bar on convicted prisoners in custody from voting.

First, we will make it clear to criminals when they are sentenced that while they are in prison this means they will lose the right to vote. This directly addresses a specific concern of the [in the original ECtHR] judgment that there was not sufficient clarity in confirming to offenders that they cannot vote in prison.

Second, we will amend guidance to address an anomaly in the current system, where offenders who are released back in the community on licence using an electronic tag under the Home Detention Curfew scheme can vote, but those who are in the community on Temporary Licence, cannot.

Release on Temporary Licence is a tool typically used to allow offenders to commute to employment in the community and so prepare themselves for their return to society. Reinstating the civic right of voting at this point is consistent with this approach…

These measures will see no changes to the criteria for temporary release, and no offenders will be granted release in order vote.

Our estimate is that these change to temporary licence will affect up to one hundred offenders at any one time and none of them will be able to vote from prison.

So, hey presto! No need for new legislation or amendment of the  Representation of the People Act 1983, but a simple change to Prison Service guidance.

The question this statement raises, of course, is whether this will be enough to satisfy the Council of Europe. My suspicion is that it may not, and that this will not resolve the issue once and for all. But it will probably be enough to kick the issue into the grass for a few more months – possibly longer.

The question of whether the European Court of Human Rights should have jurisdiction over this issue has recently been taken up in  book published by The Policy Exchange. In Human Rights and Political Wrongs: A new approach to Human Rights law Professor Sir Noel Malcolm argues that while Human Rights are very important, the way in which those rights have been interpreted and developed by the European Court of Human Rights has been inconsistent, and in some contexts has had the effect of undermining the authority of democratically elected governments. He argues that Human Rights should be limited to setting the boundaries of state power, and that decisions on whether particular policies or decisions are in breach of Human Rights should be done by domestic courts.

I see the publication of this book as the first step in putting the question of whether we have a separate British Bill of Rights back onto the domestic political agenda.

The Secretary of state’s statement is at https://www.gov.uk/government/speeches/secretary-of-states-oral-statement-on-sentencing.

Professor Malcolm’s book can be downloaded free at https://policyexchange.org.uk/

 

 

 

 

Redrawing Parliamentary constituency boundaries?

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The Parliamentary Voting System and Constituencies Act 2011 had two objectives. The first was to authorise the holding of a referendum on whether the ‘first part the post’ voting system used in general elections should change to one that offered some proportional representation. The idea was rejected.

The second was that the number of MPs in the House of Commons should be reduced from 650 to 600, and that the population size of constituencies should be made more equal.

It was originally intended that these measures should be introduced for the 2015 General Election, but the Lib Dem members of the Coalition Government scuppered the idea, as they could not persuade the Conservative partners in the Coalition Government to take House of Lords reform seriously.

Meanwhile the Boundary Commissions of England, Wales, Scotland and Northern Ireland have been beavering away, developing proposals for realigning parliamentary boundaries. They have just (October 2017) published a second round of consultations on their latest proposals. Final report reports are due in 2018.

The unknown question at the moment is whether the present Government will in fact go ahead with the proposed reduction in the numbers of seats. Many have argued that the fact that Mrs May does not have an overall majority in the present Parliament will mean that she cannot afford to run the risk of defeat on any proposal to fully implement the Boundary Commissions’ proposals.

Each Boundary Commission has its own website. The one for England is at https://boundarycommissionforengland.independent.gov.uk/2018-review/

 

Written by lwtmp

October 30, 2017 at 4:55 pm

The Wales Act 2017

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The Wales Act 2017 amends the Government of Wales Act 2006 by moving to a ‘reserved powers’ model for Wales. (This is the model that underpins the devolution settlement in Scotland.) The reserved powers model set out in the Act provides a clearer separation of powers between what is devolved and what is reserved to the UK Parliament. As a consequence, the Assembly has power to legislate on any subject except those specifically reserved to the UK Parliament. (One measure that has already been announced is that there will be legislation to rename the Welsh Assembly the Welsh Parliament.

The Wales Act 2017 includes a declaration that the Assembly (Parliament) and the Welsh Ministers and the laws that they make, are considered a permanent part of the UK’s constitutional arrangements and will not be abolished without a decision of the people of Wales. It is also declared that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly, whilst retaining the sovereignty to do so.

The Act devolves further powers to the Assembly and the Welsh Ministers in areas where there was political consensus in support of further devolution. These include:

  1. Devolving greater responsibility to the Assembly to run its own affairs, including deciding its name;
  2. Devolving responsibility to the Assembly for ports policy, speed limits, bus registration, taxi regulation, local government elections, sewerage and energy consenting up to 350MW;
  3. Devolving responsibility to Welsh Ministers for marine licensing and conservation and energy consents in the Welsh offshore region; and extending responsibility for building regulations to include excepted energy buildings;
  4. Devolving power over Assembly elections; and
  5. Devolving powers over the licensing of onshore oil and gas extraction
  6. Aligning the devolution boundary for water and sewerage services along the border between England and Wales.

The most interesting provision from a Legal System perspective is that the Wales Act provides for establishing in statute a President of Welsh Tribunals to oversee devolved tribunals and allowing cross-deployment of judicial office holders. This could be the first step in the development of a more distinct Welsh legal system.

The Wales Act 2017 is at http://www.legislation.gov.uk/ukpga/2017/4/introduction/enacted

 

For recent comment on the possible development of a distinct system of justice in Wales, see the report of the Justice in Wales Working Group at http://sites.cardiff.ac.uk/wgc/files/2017/09/Justice-in-Wales-Working-Group-Report-Final-2.pdf, and the work of the Welsh Governance centre on Justice in Wales: http://sites.cardiff.ac.uk/wgc/justice-in-wales/

Written by lwtmp

October 6, 2017 at 1:04 pm

Posted in Chapter 3

Tagged with , ,

Reform of the European Court of Human Rights

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In 2012, in Brighton, decisions were made to reform the ways in which the European Court of Human Rights operate. I note in the book (Chapter 3) that progress is likely to be slow. In fact the main recommendations of the Brighton Declaration have been implemented. Although there was a dip in the numbers of cases coming before the Court in 2015, numbers have subsequently increased. Thus the principal problem  – delay – which the Brighton Declaration sought to address has not been resolved.

Those interested in the process of reform of the European Court can, however, follow recent developments at the following website which sets out documents showing what has been done.  It is revised as and when new information is made available.

See http://www.echr.coe.int/Pages/home.aspx?p=basictexts/reform&c=#n13740528735758554841286_pointer

 

Written by lwtmp

October 5, 2017 at 3:08 pm

Keeping up with Brexit

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Whatever your views on the wisdom of the UK leaving the European Union, the process of leaving has started and is due to be completed by March 2019. At least, that is the date by which the European Union (Withdrawal) Bill is due to have completed its Parliamentary process. How long any transition period will be after March 2019 is not yet decided.

There is considerable debate in the media about the whole process with fierce political arguments continuing to rage about the process and what would constitute a desirable outcome.

One thing is crystal clear; the process is not going to be easy. There is a vast amount of detailed technical argument to be had before agreements are reached; and once agreements are reached a vast amount of technical work to translate the terms of those agreements into effective legal force.

It is hard for those interested in what is going on to know where to turn for information. The Government is trying to help by bringing together all the policy, future partnership and other documents it has published which relate to Brexit. A collection of these can be found at https://www.gov.uk/government/collections/article-50-and-negotiations-with-the-eu. This list will be continually added to as discussions with the EU progress.

It will be seen that there are many issues in the list of matters to be decided that will affect the English Legal System.

Of course at the moment, these documents represent what the UK Government would like to achieve. Whether it will be successful will depend on the outcome of the negotiations currently in progress.

The process seen from the EU side can be found by going to https://ec.europa.eu/commission/brexit-negotiations_en which sets out materials arising from the negotiations led, for the EU by M Barnier.

 

 

 

 

 

 

 

 

 

 

 

 

Written by lwtmp

October 4, 2017 at 12:07 pm