Martin Partington: Spotlight on the Justice System

The Queen’s Speech 2013 contains few measures that seem likely to impact directly on the English Legal system. The two most obvious candidates are:

1. Offender Rehabilitation Bill

This is designed to extend statutory supervision after release to offenders serving short custodial sentences, allowing probation providers to deal with the causes of re-offending. This would mean that all offenders released from prison will receive at least 12 months’ statutory supervision.

For sentences served in the community, the Bill would create greater flexibility for probation providers so that they are free to deliver innovative and effective interventions to tackle re-offending.

The main benefits of the Bill would be to:

• Reduce re-offending rates for the most prolific offenders.
• Support Government plans to open up probation services to a wide range of providers(including private and voluntary sector providers) through competition and develop use of a system of payment by results for providers

The Bill would provide for drug-abusing offenders to be required to attend treatment appointments, and expand the drugs that an offender can be required to be tested for from class A to class B.

The Bill would create a new rehabilitation activity requirement that can be imposed as part of sentences served in the community. This would provide a flexible requirement within which probation providers can require offenders to attend appointments or activities that support their rehabilitation.

2. Anti-social Behaviour,  Crime and Policing Bill which  contains a variety of measures including policies to tackle anti-social behaviour, forced marriage, dangerous dogs and illegal firearms used  by gangs and in organised crime. It also includes measures to enhance the professional capabilities and integrity of the police, and continuing the process of modernising police pay and conditions.

3. Immigration Bill may have a significant impact on rights of appeal in immigration disputes.

In addition there are two draft Bill which will have an impact on the English Legal system, when enacted.

1 Draft Deregulation Bill, be published in draft for pre – legislative scrutiny. While many regulations are being scrapped and reformed either administratively or via secondary legislation, the main aims of this Bill are, in the Government’s words, to:

• ·         Reduce or remove burdens on businesses and Civil Society and facilitate growth
• ·         Reduce or remove burdens on public bodies, the taxpayer or individuals
• ·         Tidying up the statute book by repealing legislation that is no longer of any practical use.

 2 Draft  Consumer Rights Bill, designed to

•  Give consumers clearer rights in law and to make sure that consumer rights keep pace with technological advances.
• Provide important new protections for consumers alongside measures to  reduce regulation for business, all with the aim of making markets work  better.

In May 2012, I outlined those features of the Queen’s speech which I thought would impact on the English Legal System. Here is my end of term report on those measures:

Dropped
House of Lords reform, I said this was potentially the ‘big one’ in terms of constitutional change and political controversy. But my observation that ‘it is far from certain that sufficient political consensus will be created to make its enactment an inevitability’ proved accurate – it fell at the first fence and now seems firmly in the long grass.

Incomplete
1. The Children and Families Bill designed to amend the law on adoption and bring into law changes to the Family Justice system recommended by the Norgrove report, did not complete its Parliamentary passage and has been carried over into the 2013-2014 session.

2.The draft Local Audit Bill, which was designed to abolish the Audit Commission, got a pretty hostile reception from the ad hoc Parliamentary Committee that undertook a pre-legislative scrutiny of the draft. See http://www.publications.parliament.uk/pa/cm201213/cmselect/cmdraftlocaudit/696/69602.htm. However, the Government made it clear that it would proceed with the bill. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192495/29073_Cm_8566_v0_4.pdf. A Local Audit and Accountability Bill has been announced in the Queen’s Speech 2013 to take this proposal forward.

Completed
1. Most important for the English Legal System, the Crime and Courts Act 2013 gives statutory authority for the creation of the National Crime Agency. It provides for the creation of a single family court, which will change the infrastructure currently in place. It also amends some of the current provisions relating to the making of judicial appointments and provides for the televising of some court proceedings.
2. The Enterprise and Regulatory Reform Act 2013 implements proposals which seek to ensure that more employment disputes are resolved by conciliation. It also abolishes the Competition Commission and Office for Fair Trading and replaces them with a Competition and Markets Authority.
3. The Electoral Registration and Administration Act 2013 aims to make it easier for people to register to vote.
4.The Groceries Adjudicator Act 2013 formally creates the new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – another area of disputes taken from the courts. (There are over 60 industry adjudication schemes already in existence in the UK – many of them not well understood but doing work of resolving disputes that otherwise might have gone to courts). Although the Act did not receive Royal Assent until April 2013, Christine Tacon was appointed to the post in January 2013.

Comment

It is perhaps a consequence of Coalition Government that the passage of legislation is not as predictable as when a single political party is in Government. Even so, most of the key measures, apart from House of Lords Reform, have made progress. It should of course be noted that major policy changes – effected by legislation passed in previous years – came into effect. These include: the reform of legal aid; fundamental change to the health service; changes to social welfare and benefits.

The Commission, established in the early days of the Coalition Government, has now reported. The outcome does not give clear advice to Government.

Seven of the Commission’s nine members believe that, on balance, there is a strong argument in favour of a UK Bill of Rights on the basis that such a Bill would incorporate and build on all of the UK’s obligations under the European Convention on Human Rights, and that it would provide no less protection than is contained in the current Human Rights Act and the devolution settlements.  Some of the majority believe that it could usefully define more clearly the scope of some rights and adjust the balance between different rights. For the majority as a whole, the most powerful arguments for a new constitutional instrument are what is called ‘the lack of ownership’ by the public of the existing Human Rights Act and the European Convention on Human Rights, and the opportunity which a UK Bill of Rights would offer to provide greater protection against possible abuses of power.

The two members are strongly opposed to this conclusion – Helena Kennedy and Philippe Sands. They believe that now is not the time to focus on a new UK Bill of Rights. They believe that the majority has failed to identify or declare any shortcomings in the Human Rights Act or its application by our courts. While they remain open to the idea of a UK Bill of Rights were they to be satisfied that it carried no risk of decoupling the UK from the European Convention on Human Rights, they fear that one of the principal arguments relied upon by the majority – the issue of public ownership of rights – will be used to promote other aims, including the diminution of rights available to all people in our community, and a decoupling of the UK from the European Convention on Human Rights.

Press reporting of the Commission’s report was pretty sketchy – not the subject of big headlines. The consensus seems to be that little action is likely to be taken in the short-term – it is one of those issues that divides the Coalition. However, in the run up to the 2015 General Election, commentators anticipate the Conservatives in particular returning to the attack, and arguing for closing off the existing routes to the European Court of Human Rights.

To read the report go to http://www.justice.gov.uk/news/press-releases/cbr/the-commission-on-a-bill-of-rights-report-a-uk-bill-of-rights-the-choice-before-us

In the book (Chapter 3) I note various ways in the legislative process has changed over recent years. At present, however, there is no mention of a new process of post-legislative scrutiny that has been in place for the last 2 or three years.

The idea of post-legislative scrutiny is fairly simple. After a period following the enactment of a new Act of Parliament the question should be posed: is the Act working as it was intended to do?

The idea has been floating around academic circles for many years. The House of Lords Constitution Committee considered it in 2004. Things moved forward significantly when the former Labour Administration asked the Law Commission to consider the issue and how it could be turned into a practical reality.

Its report was published in 2006; the then Government’s reponse was published in 2008.

Since then there has been a programme of post-legislative scrutinies.

The key features of the programme are:

• not all Acts of Parliament are subject to scrutiny;

• where there is scrutiny, the review is undertaken by the relevant Departmental Select Committee – it is a process driven by back-bench MPs, taking evidence and reaching conclusions as they do in other inquiries they undertake;
• the scrutiny process is started by the preparation within the Government department concerned of a memorandum on the Act of Parliament concerned being presented to the Select Committee, who then invite wider observations and inputs from outside government on the Act’s operation.

The Law Commission’s report is at:http://lawcommission.justice.gov.uk/docs/lc302_Post-legislative_Scrutiny.pdf

The Government’s response is at: http://www.official-documents.gov.uk/document/cm73/7320/7320.pdf

For an example of a current post-legislative scrutiny exercise, see the Justice Select Committee’s inquiry into the operation of the Freedom of Information Act. In relation to this, evidence has been sought and obtained; the final report is being written.
For further information see:
http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/
The Ministry of Justice’s memorandum which formed the basis for the inquiry is at http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2010/foi/

Clearly at some point there needs to be an evaluation of the scrutiny process. Are lessons being learned from the process which can be fed back into the legislative process?

As well as ministerial changes there have been changes in two of the top judicial jobs.

Lord Phillips, who was the first President of the Supreme Court, reached retirement age this autumn. He is replaced as President, from 1 October 2012, by Lord David Neuberger – who was formerly the Master of the Rolls. See http://www.supremecourt.gov.uk/news/new-president-of-the-supreme-court.html.

The resultant vacancy as Master of the Rolls is filled by Lord John Dyson, currently a member of the Supreme Court. See http://www.number10.gov.uk/news/appointment-of-master-of-the-rolls/

Over the summer, the Prime Minister shuffled his ministerial team. Ken Clarke, the former Lord Chancellor, was one of the minister to lose his job (though he remains in the Cabinet).

Replacing him is Chris Grayling. You can read a bit about him at http://www.justice.gov.uk/about/moj/departmental-board/chris-grayling-mp.

Press coverage suggests that Grayling is likely to be ‘tougher on crime’ than his predecessor – a reputation arising from the time he was the Shadow Home Secretary before the arrival of the Coalition Government.

I’m not so sure. While his predecessor sought to argue for changes in penal policy based on their efficacy, he was also seeking to save money – putting people in jail is expensive. The need for public expenditure cuts remains – so it is not clear how far Grayling will be able to lock more people up, even assuming that that is what he wants to do.

Recent press stories suggest that Grayling’s first challenge will be to try to get the judiciary to accept a cut in their pension entitlements (in fact a process started by Clarke). Now that is a challenge. See, e.g. http://www.solicitorsjournal.com/node/14064

So, after years of discussion about the desirability of reforming the House of Lords, the changes proposed by the Coalition Government have been kicked into the long grass. Tory backbench MPs have ensured that this Coalition policy would not see the light of day. Even the more modest reforms proposed by Lord Steel have been shelved – including sensible proposals that members of the House of Lords should be able to resign.

One consequence of this outcome is that the propsed changes to the constitution of the House of Commons are now also under threat – though final decisions on the size of the Commons and changes to constituency boudaries will not be made until 2013.

The next step on the road to possible reform of the House of Lords has taken place. The House of Lords Reform Bill 2012 has been published.

If enacted in its published form 80 per cent of House of Lords members would be elected by the public (360 of the total number of Lords). The total number of members would be reduced by nearly half from 826 to 450.

The first elections for members of the reformed House of Lords would take place in May 2015. One-third of the elected members would be chosen then, with another third in 2020 and the final third in 2025 – 120 members in each election.

Existing Peers would be ‘phased’ out as elected members were brought in.

The Bill provides that the remaining 20 per cent (90 members) would be appointed by a statutory Appointments Commission on a non-party basis.

In addition, the Bill provides that there would also be 12 Church of England bishops, a reduction from the current 26 church representatives, reflecting the smaller overall size of the Chamber. In addition, anyone appointed to a Ministerial position who was also made a members of the House of Lords would be added to the overall total.

Under the Bill, members of the reformed House would serve for 15-year terms of office, and they would only be allowed to serve for one term. Elected members would be picked using a Semi-Open List electoral system, giving voters the choice of voting for a party or for an individual in their region.

The Bill provides that the reformed House of Lords would not challenge the historical legislative primacy of the House of Commons. The new Bill specifically states that the Parliament Acts of 1911 and 1949, which define the relationship between the Houses, remain in force.

Publication of the Bill has resulted in great controversy, with many predicting that it will no become law. The progress of the Bill however cannot be ignored and progress will be noted here.

To see the Bill and its Explanatory Notes go to http://services.parliament.uk/bills/2012-13/houseoflordsreform/documents.html