Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Reducing family conflict: reform of the legal requirements for divorce

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At present, divorce law requires people seeking divorce must show that there has been irretrievable breakdown in the marriage. To do this they must give evidence of one or more of 5 facts; 3 are based on ‘fault’  (adultery, unreasonable behaviour or desertion) and 2 are based on a period of separation (2 years’ separation where the other spouse consents to the divorce, or 5 years’ separation where the other spouse does not consent).

In practice, only about 2% of respondents contest the petitioner’s decision to seek a divorce. Of these 2% of respondents, only a handful go on to contest (“defend”) the divorce at a court hearing. This means that, under the current law, a spouse who wishes to divorce can already be certain of doing so in practice, regardless of the other spouse’s wishes, provided that the petition establishes irretrievable breakdown.

There are domestic abuse cases where the current grounds for divorce can be used in a coercive way.

Proposals detailed in the consultation include:

  • retaining the sole ground for divorce: the irretrievable breakdown of a marriage
  • removing the need to show evidence of the other spouse’s conduct, or a period of living apart
  • introducing a new notification process where one, or possibly both parties, can notify the court of the intention to divorce
  • removing the opportunity for the other spouse to contest the divorce application

The consultation also seeks views on the minimum timeframe for the process between the interim decree of divorce (decree nisi) and final decree of divorce (decree absolute) (currently 6 weeks, one day). This will allow couples time to reflect on the decision to divorce and to reach agreement on arrangements for the future where divorce is inevitable.

The Consultation runs until mid-December 2018.

The Paper can be accessed at https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/.

A detailed Press Release is at https://www.gov.uk/government/news/justice-secretary-confirms-plans-to-reduce-conflict-in-divorce

Although there has been considerable public response to these proposals, it can be anticipated that at the end of the consultation dissenting opinions will be heard. The paper has also been criticised for not addressing other issues arising from relationship breakdown, in particular affecting couples who have not married or engaged in a civil partnership.

 

 

 

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Written by lwtmp

October 2, 2018 at 11:16 am

Disclosure of Evidence: Justice Committee report

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It is a fundamental principle of the criminal justice system in England and Wales that the prosecution must disclose unused evidence to the defence. Following considerable press publicity given to criminal trials  in which this principle has not been observed – leading to lengthy delays in a case being brough to trial, in some cases leading to a defendant being sent to prison for a crime he did not commit – the Justice Committee in the House of Commons took a look at the issue.

In July 2018 they published their report. In it they make no recommendations to change the law. Indeed, the confirm that the principle of disclosure is an important one to ensure a fair trial. What they do say is that those working in the criminal justice system must take their responsibilities in relation to disclosure more seriously.

The Committee notes that in early December 2017 the Government announced that the then Attorney General would conduct a review of disclosure. While the Attorney General has since changed, the Committee expects that this review will conclude.

The Committee also notes that the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing  published a “National Disclosure Improvement Plan” in January 2018. (Noted in this blog 1 Feb 2018)

The Justice Committee’s recent report in effect builds on these initiatives. It states, in summary that there needs to be:

  • a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on;
  • the right skills and technology to review large volumes of material that are now routinely collected by the police; and
  • clear guidelines on handling sensitive material.

Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. The Committee notes that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.

The Committee plans to return to this issue both when the Government publishes its response to the report, and when the Attorney General’s review is completed.

The report can be seen at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm

 

 

Written by lwtmp

October 2, 2018 at 10:48 am

Employment Law Hearing Structures: Consultation from the Law Commission

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The headline features of the Transformation: Courts and Tribunals 2022 programme have been about major changes to the ways in which courts and tribunals work: on-line courts, digitization of process, investment in IT and so on.

But in parallel with these major changes, other more technical changes are being contemplated which it is hoped will improve the efficiency of the work of courts and tribunals.

The recently announced (26 September 2018) consultation paper Employment Law Hearing Structures is an example of how the government is seeking to take this opportunity to make some technical changes to the ways in which  courts and tribunals dealing with employment and discrimination cases interact.

For example:

  • At present Employment Tribunals can only claims for contractual damages, where the damages claimed are below £25,000;
  • Employment Tribunals operate on a ‘no-costs’ basis – i.e. the winner of the case cannot seek an order for costs from the losing party;
  • Employment Tribunals have no power to make an order to enforce a decision that it has made.
  • Courts have exclusive jurisdiction over no-employment discrimination cases

These and other rules mean that there can be circumstances in which cases have to go to courts that might be better dealt with by the tribunal, and vice versa.

The detail of the proposals in the Consultation Paper are not considered here, though of great importance to specialist employment lawyers and other interested in employment matters.

But the existence of the consultation is flagged here to indicate yet more ways in which the detailed work of courts and tribunals is likely to be amended under the general banner of the Transformation programme.

(A similar exercise, though not currently the subject of a public consultation, is ongoing in the context of the resolution of housing and property disputes where  complex boundaries have to be negotiated between tribunals and courts which mean that cases may need to be launched in more than one forum. There is likely to be greater public debate on these issues when the promised Consultation Paper on a new Housing Court is published later in 2018.)

The Law Commission’s Consultation Paper can be seen at https://www.lawcom.gov.uk/consultation-launched-into-how-employment-law-disputes-are-decided/

The Consultation runs till January 2019. Final recommendations will be published in 2019.

 

 

 

Written by lwtmp

September 27, 2018 at 12:21 pm

The work of the Law Commission: Justice Committee inquiry 2018

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In the summer 2018, the House of Commons Justice Committee announced that it would start an inquiry into the work of the Law Commission. To date it has received oral and written evidence from the Law Commission.

The evidence shows that over the last 8 years, the core funding for the work of the Commission has been cut by over 50%.

To make up the short-fall, the Commission has been undertaking a number of projects funded by Government Departments, which fall outside the programme of Law Reform which the Commission had itself determined and agreed with the Government.

In oral evidence, the then Chair, Sir David Bean made the point that, while funded projects were important, it could mean that other important projects would have to be dropped or postponed, because they did not fit the political priorities of the day.

The final outcome of the inquiry is currently awaited.

The written and oral evidence is available at https://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/inquiries/parliament-2017/work-of-the-law-commission-17-19/publications/

Written by lwtmp

September 25, 2018 at 12:26 pm

Posted in Chapter 4

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Administrative Justice Council starts work

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The creation of the Administrative Justice Council – replacing the Administrative Justice Forum – was announced in December 2017.

It has now started work. In July 2018 it held its first meeting, the minutes of which have just been published.

The Council is a relatively large body – some 40 participants – who have a wide range of experience of the administrative justice system. The overall direction of the programme is led by a steering group drawn from the wider Council membership. Much of its work is to be done through sub-committees. The first two sub-committees – academic, and pro bono – started work before the first full meeting and fed their progress to date into the main Council meeting. In addition, specific projects will be led by ad hoc Working Groups.

From the minutes, it is clear that much of the first meeting was taken up with scene- setting with individual members explaining their work in the administrative justice field to the other members of the group.

Two particular themes in the minutes caught my eye:

First, it is clear that there are interesting developments taking place in Scotland and Wales which, following devolution, have the freedom to develop their own approaches – this is particularly the case for Wales.

Second, there was an interesting contribution from the Secretary of the Ombudsman Association, proposing that there should be a workshop bringing together people from the tribunals and ombudsmen worlds to look in some detail at how they approached their work, and to explore ways in which their work could be made more interactive.

Obviously these are early days, but I will be keeping and eye on how the Council develops and the contributions it may make to the development of administrative justice policy and its delivery.

Information about the Administrative Council can be found at https://justice.org.uk/ajc/

This page gives a direct link to the minutes of the meeting.

 

 

 

 

Reviewing Parliamentary constituency boundaries: outcome of the 7th review.

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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.

  1. 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.
  2. 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/

 

 

 

 

 

 

Written by lwtmp

September 19, 2018 at 5:30 pm

Post-implementation review of LASPO Part 2: the Jackson Reforms

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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

 

 

 

 

Written by lwtmp

September 15, 2018 at 3:29 pm