Martin Partington: Spotlight on the Justice System

The Queen’s speech which sets out the Government’s legislative proposals for the forthcoming year, was delivered on May 9 2012. While the headline media commentary was largely on the economy, there are matters in the proposals which – if enacted – will have an impact on the English Legal System. These are listed here, so that readers can take note of them and follow how they come into legislative form:

1 House of Lords reform – this is potentially the ‘big one’ in terms of constitutional change and political controversy. It is far from certain that sufficient political consensus will be created – in particular within the Coalition – to make its enactment an inevitability.

2 The Enterprise and Regulatory Reform Bill will contain proposals which will impact on the work of Employment Tribunals, and seek to ensure that more employment disputes are resolved by conciliation.

3 The Groceries Adjudicator Bill will create a new scheme for adjudicating disputes between consumers and the ‘big name retailers’ – thus another area of disputes will – in effect be removed 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).

4 The draft Local Audit Bill will, if enacted, abolish the Audit Commission, which audits the activities of local government.

5 The Children and Families Bill will amend the law on adoption. It will also bring into law changes to the Family Justice system recommended by the Norgrove report.

6 The Electoral Registration and Administration Bill will make it easier for people to register to vote.

7 The Crime and Courts Bill will give statutory authority for the creation of the National Crime Agency. It will also amend some of the current provisions relating to the making of judicial appointments. It also provides for the televising of some court proceedings.

At page 40 of the book, it is stated that the Queen’s speech – which starts each session of a Parliament – is usually delivered in November. This used to be the case.Readers of the book who also take note of what is happening in Parliament may therefore be puzzled as to why in 2012 the speech was delivered in May.

The reason is that, following enactment of the Fixed-Term Parliaments Act 2011 – which will result in future General Elections normally being held in May (see p 30 of the book), it has been decided that the Queen’s speech should also be delivered in May – i.e. roughly on the anniversary of the Election that started the Parliament.

The question of the relationship between the English Legal System and in particular the UK Supreme Court and the European Court of Human Rights has been generating a lot of political heat in recent months – much of it deriving from the decision in the case Abu Qatada – who the British Government was to deport to Jordan for trial, but who – it is feared – may have evidence obtained by torture used against him. The political fallout from this very controversial case has been significant, with many people demanding that the UK no longer acknowledge the jurisdiction of the European Court.

By chance, in April 2012 – during the UK Presidency of the Council of Europe – a conference was held in Brighton designed to consider proposals for the reform of the court. In the event, the ‘nuclear option’ of the UK withdrawing from the Convention was averted and instead a number of reforms were agreed, designed to rebalance the relationships between Strasbourg and national supreme courts.

In outline, the Brighton Declaration does the following things:

• Makes proposals for amending the Convention to include the principles of subsidiarity and the margin of appreciation – this should give more power to domestic courts t0 decide matters without intervention from Strasbourg;
• Proposes amending the Convention to tighten the admissibility criteria- so that trivial cases can be thrown out and the focus of the Court can be serious abuses
• Reducing the time limit for claims from six months to four
• Improving the selection process for judges
• Setting out a roadmap for further reform.

The full text of the Brighton Declaration is at http://www.coe.int/en/20120419-brighton-declaration/

It will be realise that while what has been achieved may be useful first steps, the final implementation of the reform proposals will take some time to complete.

Much discussion in the media – especially the print media – about the Human Rights Act and its impact on the UK is conducted in an extremely shrill  tone,  and is sometimes not as well informed as it should be. It is therefore worth looking out for more sober appraisals of the working of the legislation. The Ministry of Justice publishes a (more or less) annual survey – both of cases where the UK government has been taken before the European Court on Human rights, and where the UK Courts have made declarations of incompatibility. The latest of these reports was published in September 2011.

This shows that the number of cases where the UK is a party before the ECtHR is very small (though the issues are important – e.g. the case on the voting rights of prisoners), and that there have been very few declarations of incompatibility – only 27 in 10 years, about half of which were not supported by the Supreme Court (formerly House of Lords).

The review of recent developments can be seen at http://www.justice.gov.uk/downloads/publications/policy/moj/responding-to-human-rights-judgments.pdf

The current review by the Commission on a Bill of Rights http://www.justice.gov.uk/about/cbr/index.htm is specifically required not to consider the withdrawal by the UK Government from its obligations under the convention. But it has recently published interim advice to Government supporting the view that the Strasbourg Court is in need of serious reform if it is not to grind to a complete halt. The advice may be seen at http://www.justice.gov.uk/downloads/about/cbr/cbr-court-reform-interim-advice.pdf

One of the items I have not yet commented on here are the Government’s draft proposals for a smaller, reformed House of Lords, to which members are elected, which were published in May 2011. The question of House of Lords reform has been debated for well over 100 years; and there have been major changes – significant reductions in the numbers of hereditary peers; introduction of life peers. But till now no elected members.

The proposals, contained in the a draft House of Lords Reform Bill  and accompanying White Paper, set out possible options for how a reformed House could look. While the draft Bill sets out firm proposals, the White Paper also considers alternative options on which the Government remains open-minded. For example, the Bill proposes that 80% of the reformed House should be elected, with 20% being appointed by a special appointments commission to sit as independent cross-benchers; the White Paper considers the case for a 100% elected body.

Key proposals contained in the draft House of Lords Reform Bill include:

• a reformed House containing only 300 members, considerably smaller than the present House. Members would be paid a salary, rather that simply claim expenses and a daily allowance as currently happens;
• those elected would be eligible to sit for a single term of three parliaments (i.e. roughly 15 years). Life and hereditary appointments would disappear;
• elections using the single transferable vote (STV), electing a third of members each time with elections normally taking place at the same time as General Elections. The White Paper acknowledges that other modes of election might also be considered;
• the franchise would be based on multi-member electoral districts, drawn up independently based on national and county boundaries;
• there would be a continuation of the presence of Bishops of the Church of England in the House of Lords, though their number would be reduced from 26 to 12;
• the new membership elections would be staggered over the course of three electoral cycles, which once complete would ensure that there was a continual renewal of a third of the House.

As regards the functions of the House of Lords, both the draft Bill and White Paper are clear that the powers of the reformed House of Lords should remain the same. It would continue with its legislative functions of scrutinising legislation; it would also continue its investigative and accountability functions through its Select Committee, thereby complementing the work of the Commons.

It is the Government’s intention that the first elections take place in 2015. The draft Bill and White Paper are currently being considered by a Joint Committee, composed of 13 peers and 13 MPs, before legislation is introduced next year.

Although the Bill is an important component of the Coalition Government’s programme, it has already drawn some pretty hostile reaction, both from those who think it goes too far, and those who thinks it does not go far enough. We will clearly return to the issue in the next (academic) year how far the weight that the Prime Minister and Deputy Prime Minister have put behind the proposals is able to push the proposals.

What do you think of them? Should Church of England Bishops retain a right to sit, whereas other religious leaders have no such right? Should the body be wholly elected? Should the name of the House of Lords be changed – given the new system of appointment? If so, what should be the name? Senate?

For full details of the proposals, go to http://www.cabinetoffice.gov.uk/resource-library/house-lords-reform-draft-bill

For some time I have been meaning to draw the attention of readers to the amazing Democracy Live website run by the BBC.

It can be found at http://news.bbc.co.uk/democracylive/hi/default.stm.

The reporting of events in Parliament in the print media has significantly reduced over the last decade, so people who might be interested in knowing what is going on in Parliament don’t have an easy regular channel of information.

At the same time, Parliament’s functions have been developing – for example more use of Select Committees, backbench debates. And there have been other very important developments resulting from the creation of devolved governments in Scotland Wales and Northern Ireland. As if this was not enough, we cannot forget that our governance also embraces developments in Europe and the institutions of the EU.

The BBC website offers instant access to all these different Parliaments, including videos of speeches, and live debates as well as introductions to the background to many contemporary issues.

I know that there is concern that people in general do not take politics as seriously as perhaps they should. However, the work of our representatives in Parliament is at the heart of our system of representative democracy. One should not become cynical about the work of our representative institutions without actually knowing what they do.

Any argument that people will find it difficult to find out what is going on in our various Parliaments is totally undermined by this exceptionally informative and richly resourced website – for which I think the BBC should be unreservedly praised – this is public interest broadcasting of the highest quality and value.

There has been much controversy in recent months about the use of ‘super-injunctions’ to prevent the press and broadcasting media from reporting details of the private lives or confidential affairs of the rich and powerful. (I leave to one side the very practical question of the extent to which such super-injunctions can – because of Twitter and other social e-media – actually be effective in keeping the lid on confidential matters.)

Much press reporting of the issue might lead to one the view that the development of super-injunctions has been the result of the senior judiciary seeking to develop new legal principles, in the teeth of opposition in Parliament. (Of course there is nothing new in this as an idea – many of the fundamental principles of the law of England and Wales have been developed by the senior judiciary.)

The recent publication of the report on super-injunctions, written by the Master of the Rolls – who led a team of experts, including representatives of the press – seeks to offer a more reasoned analysis of what has been happening.

This shows, first, that it was Parliament that, by enacting the Human Rights Act 1998, created the conditions in which the judiciary was required to balance the competing rights to freedom of expression and privacy in individual cases.

The report also emphasises that there is an important distinction to be drawn – which recent reporting has often failed to do – between ‘super-injunctions’ and ‘anonymised injunctions’.

A super-injunction is an interim injunction which restrains a person from: (i) publishing information which concerns the applicant and is said to be confidential or private; and, (ii) publicising or informing others of the existence of the order and the proceedings.

An anonymised injunction is an interim injunction which restrains a person from publishing information which concerns the applicant and is said to be confidential or private where the names of either or both of the parties to the proceedings are not stated.

Again, contrary to the impression given in many press reports,  since January 2010, only two super-injunctions have been granted, one which was set aside on appeal and the second which was in force for seven days. In practice, super-injunctions are now only being granted, for very short periods, and only where this level of secrecy is necessary to ensure that the whole point of the order is not destroyed.

While there has been an increase in the number of cases which are anonymised, the law on anonymisation has been clarified in two recent Court of Appeal decisions. When anonymised orders are made, the court should wherever practicable provide a reasoned judgment for its decision.

The Committee produced draft Guidance setting out the procedure to be followed when applying for injunctions to protect information said to be private or confidential pending trial. This procedure will enable the media to be informed about applications in advance as Parliament envisaged when it passed section 12 of the Human Rights Act 1998.

The Master of the Rolls has asked HMCTS to monitor these cases in future to see whether the changes to procedure proposed are having the desired effect.

The full report of the Master of the Rolls’ Committee can be found at http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/super-injunction-report-20052011.pdf

So, the referendum on the Alternative Voting system went against those who were arguing for change. But as I have noted before, the  Parliamentary Voting System and Constituencies Act 2011 did more than make provision for the AV referendum. It also started a process of reducing the numbers of constituencies to the House of Commons from 650 to 600.

The detailed work on this is being undertaken by the Boundary Commissions – there are four Commissions, for England, Scotland, Wales and Northern Ireland.

In the case of England there will be 502 MPs rather than the current 533. The number of electors in each constituency must be no smaller than 72,810 and no larger than 80,473. In other words constituencies will become more equal in size than they are at present.

The Boundary Commission for England has stated: ‘Early indications are that the changes will have to be significant in order to reduce the number of constituencies by 31 and to ensure that they are of equal size. The majority of existing constituencies are likely to be affected.’

Provisional proposals for changes will be published in the autumn 2011. This will be followed by a period of consultation – with final recommendations due by the end of 2013.

You can follow developments at http://boundarycommissionforengland.independent.gov.uk/ which also links to the other boundary commission websites.