Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Archive for the ‘chapter 6’ 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

Reform of the justice system: update on progress

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Those who are following the progress of the programme to change the ways in which the justice system works might care to look at the presentation delivered to the 4th Annual Users Conference.

Online sessions were spread across three days (3, 4, 5 November 2020) and covered the work of criminal, civil, family, tribunals and cross-jurisdictional reform projects over the past 12 months, a year that has been significantly impacted by the need to respond to the pandemic.

Readers can access the main speeches at https://www.judiciary.uk/announcements/civil-justice-councils-9th-national-forum-on-access-to-justice-for-those-without-means/

This links to the principal speeches which are on YouTube.

Further information and powerpoint presentation can be accessed at https://www.gov.uk/government/news/hmcts-heads-online-for-2020-public-user-event#history

Review of the Human Rights Act 1998: latest news

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Following the announcement of this review, chaired by Sir Peter Gross, in December 2020, the review has now published its call for evidence, together with the membership of the team who will be assisting Sir Peter in his review.

Evidence is sought on two specific issues:

The first deals with the relationship between domestic courts and the European Court of Human Rights (ECtHR), in particular how the requirement that domestic courts ‘take into account’ decisions of the ECtHR.

The second seeks evidence on the impact of the HRA on the relationship between the judiciary, the executive and the legislature.

The time for responding is short. Submissions have to be in by 7 March 2021.

The Review promises that there will be public consultation sessions to be arranged. The intention is that the report should be submitted to Government in Summer 2021.

Details are at https://www.gov.uk/guidance/independent-human-rights-act-review#contents

Written by lwtmp

February 1, 2021 at 11:42 am

Responding to Human Rights Judgments: 2019 to 2020 – new report

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Just a few days ago (18 December 2020) I noted the establishment of the Independent Review of the Human Rights Act 1998, to be chaired by Sir Peter Gross. One of the documents the review will, have to consider is the latest report by the Government to the Joint Committee (of the House of Lords and the House of Commons) on how it has been responding to judgements of the European Court of Human Rights (ECtHR). Despite its title, it covers a longer period than 2019-2020. Indeed, it provides important background on how the European Convention on Human Rights impacts on the UK.

What strikes me is, that while there have undoubtedly been a small number of controversial cases that have gone to the ECtHR over the last 20 years, the overall impact has been much more limited than many of the stories in the print media might suggest.

It is striking to see that the numbers of cases against the UK Government is actually very small – and many of the cases started are dismissed as disclosing no cause of action.

In the small number of cases which go against the UK Government, the outcomes of the Court seem to me sensible and balanced. (The low numbers may reflect the fact that, as a result of the enactment of the Human Rights Act 1998, it is easier to argue Convention issues in the UK courts than it used to be.)

Even where cases are taken in the UK Courts, the numbers of declarations of incompatibility made by the UK courts are also very small, and most being dealt with by changes to regulations rather than major legislative changes.

The report is available at https://www.gov.uk/government/publications/responding-to-human-rights-judgments-2019-to-2020

Written by lwtmp

December 22, 2020 at 4:08 pm

Review of the Human Rights Act 1998

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In its Election Manifesto for 2019 the Conservative Party announced that it wished to review the operation of the Human Rights Act 1998.

For a number of years, some politicians had been argung for a repeal of the act and its possible replacement with a ‘British Bill of Rights’. That idea never gained broad political support and seems to have fallen away. Certainly the announcement, on December 7 2020, of the current review states, in terms, that the Government remains committed to the European Convention on Human Rights.

According to the official announcement, the new review – chaired by retired Court of Appeal judge, Sir Peter Gross – has the following tasks. It will consider:

  • The relationship between the domestic courts and the European Court of Human Rights (ECtHR). This includes how the duty to ‘take into account’ of ECtHR case law has been applied in practice, and whether dialogue between our domestic courts and the ECtHR works effectively and if there is room for improvement.
  • The impact of the HRA on the relationship between the judiciary, executive and Parliament, and whether domestic courts are being unduly drawn into areas of policy.
  • The implications of the way in which the Human Rights Act applies outside the territory of the UK and whether there is a case for change.

The review is stated to be limited to looking at the structural framework of the Human Rights Act, rather than the rights themselves.

The announcement of the review also says that the new review ‘runs alongside’ the independent review of Judicial Review and ‘is part of the government’s work to deliver the commitment in the Manifesto to look at the broader aspects of the constitution and the relationship between the Government, Parliament and the courts’.

It seems that these 2 reviews, taken with ‘others to be announced in due course’ will deliver the ‘Commission on Constitution, Democracy, and Rights’ which the Government said it wished to establish. It is not at all clear whether there will be a separate Commission, or whether these separate reviews will, in some way, be welded together into some kind of final statement of policy. I would have thought that a distinct Commission would be essential to ensure that the outcomes from specific reviews were coherent.

The announcement of the HRA review is at https://www.gov.uk/government/news/government-launches-independent-review-of-the-human-rights-act

I noted the review of judicial review at https://martinpartington.com/2020/08/07/independent-review-of-administrative-law/. See also https://martinpartington.com/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/

Written by lwtmp

December 18, 2020 at 11:17 am

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

Launch of the Administrative Justice Council Newsletter

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Useful summary of just published newsletter from the Administrative Justice Council.

UKAJI

Launch of the Administrative Justice Council Newsletter

Starting November 2020, the Administrative Justice Council (‘AJC’) has launched a new tri-annual newsletter which will highlight the current work of the AJC and its members.

The first edition of the newsletter includes a review of the AJC’s recent Windrush Scandal webinar on 29 September, its responses to recent consultations regarding the future of legal aid and the Independent Review of Administrative Law, together with details regarding its survey on providing welfare benefit advice during the Covid-19 pandemic.

The first edition of the newsletter is available here. Those who wish to receive the updates should contact ajc@justice.co.uk.

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Written by lwtmp

November 20, 2020 at 2:57 pm

Collection of responses to the Independent Review of Administrative Law (IRAL)

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Given the importance of judicial review, it seems strange that the Independent Review of JR, chaired by Lord Faulks, decided it would not publish submissions it received to the Consultation it launched. This blog from the UK Institute for Administrative Justice very usefully provides a list of those submissions of which it is aware, with links to them.

UKAJI

Given the decision of the Independent Review of Administrative Law (IRAL) not to make publicly available responses received as part of its call for evidence, UKAJI has decided to bring together in one place IRAL responses which have been made public. Should you wish to include an IRAL responses on this page, please contact Lee Marsons on lm17598@essex.ac.uk.

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Written by lwtmp

November 4, 2020 at 10:46 am

When Things Go Wrong: the response of the justice system: a report from JUSTICE

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When Things Go Wrong: Grenfell

On 24 August 2020, JUSTICE, the Human Rights Group published an important report on the principles that should be applied when establishing public inquiries when some catastrophic event has occurred.

At present, a tragic incident may result in a range of concurrent legal processes: criminal investigations, disciplinary hearings and civil claims may be initiated that share identical subject matter with an inquiry, inquest or both. These overlapping processes can be confusing for those involved: at worst, layers of legal duplication can fuel the pain of loss. From the perspective of those caught up in the aftermath of the disaster – including victims, witnesses and alleged wrongdoers – the process can be agonisingly protracted. Further, survivors and their families often speak of alienation, mistreatment and whitewashing by the very bodies set up to identify the wrongs they have suffered. Their accounts suggest that inquest and inquiry processes are often highly adversarial and potentially retraumatising. And those with the most at stake may understandably fear that nothing will change once the processes conclude.

A Working Party of JUSTICE, chaired by Sir Robert Owen, asked whether there were ways to overcome these perceived deficiences. It considered:

  • timely justice: how elements of current fact-finding processes and investigation might be integrated to reduce duplication and delay;
  • transparency and responsibility: how investigations, inquiries and inquests can be better coordinated to embed best practice, promote certainty and ensure inclusion of bereaved people and survivors; and
  • fairer outcomes: how inquiry hearings can be improved with regard to procedures, evidence and effective participation.

The report made 54 recommendations under the following broad heads:

  • The framework – They recommended new State and independent bodies to provide oversight and facilitate information-sharing – a Central Inquiries Unit within Government, a full-time Chief Coroner and a special procedure inquest for investigating mass fatalities as well as single deaths linked by systemic failure, able to consider closed material and make specific recommendations to prevent recurrence.
  • Opening investigations – Greater collaboration between agencies, in order to build a cross-process dossier, which would reduce the multiple occasions that bereaved people and survivors have to recount traumatic events and ensure that they are fully informed throughout the process.
  • Procedure – Processes for appointing inquiry chairs and panels, for establishing the terms of reference and for providing information and relevant documents to core participants need to be more structured and transparent. Drawing on previous JUSTICE working parties on accessibility, we recommend that bereaved people and survivors are placed at the heart of the process – in choice of hearing space; improved communication and questioning by professionals and signposting to support services. Aside from the legal formalities, the report also called for widespread use of commemorative “pen portraits” and therapeutic spaces for bereaved and survivor testimony.
  • A statutory duty of candour, including a rebuttable requirement for position statements, which would help foster a “cards on the table” approach. Directing the inquiry to the most important matters early on could result in earlier findings and reduced costs.
  • Accountability and systemic change – An independent body should lead oversight and monitoring of the implementation of inquest and inquiry recommendations, whose review could aid scrutiny by parliamentary committees.

Source: Adapted from https://justice.org.uk/our-work/system-wide-reform/when-things-go-wrong/


Written by lwtmp

September 7, 2020 at 4:55 pm

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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