Prisoners’ voting rights: recent developments
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 changes 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 a 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/
Children Across the Justice Systems
This was the title of an extremely important and interesting lecture, given by Sir James Munby, President of the Family Court, to the Howard League for Penal Reform at the end of October 2017
What, it might be asked, was our leading family judge doing talking to those whose interest is in the criminal justice system?
Sir James used his lecture as an opportunity to argue for a new approach to the treatment of young people who come into contact with the criminal justice and penal systems. He sets out with admirable clarity what he sees as the main problems with current arrangements, including: the very complex set of institutions with which the young offender may come into contact; the huge variety of government departments – both central and local – charged with developing and delivering policy in relation to young offender; and the inconsistency of approach of different agencies towards how young offenders and their families should be dealt with.
Sir James argues that, in this context, family justice and criminal justice should be brought together. Specifically, he argues that the role of the Family Drug and Alcohol Court should be expanded to enable it to take on cases which are currently dealt with in the Youth Court.
He recognizes that such a development would represent a big policy change and could not come into being in the short-term. He therefore also proposes interim measures that might go someway towards meeting the objective he has outlined.
So far as I am aware,the Government is not currently contemplating such a major change, but I think Sir James offers ideas that should be carefully considered.
The lecture is available at https://www.judiciary.gov.uk/wp-content/uploads/2017/10/speech-pfd-children-across-the-justice-systems.pdf
Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases
In July 2017, HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.
The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.’
This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.
- Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
- Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
- The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
- Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
- There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
- There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
- There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
- The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.
The report set out a strict timetable for change.
Immediately:
all disclosure issues relating to unused material to be identified at the charging stage.
Within six months:
the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;
police forces to improve supervision of unused material;
CPS Compliance and Assurance Team to begin dip sampling;
all police forces to establish role of dedicated disclosure champion of senior rank;
a system of sharing information between CPS Areas and Headquarters to monitor performance;
CPS and police to develop effective communications processes.
Within 12 months:
the College of Policing to introduce a disclosure training package;
the CPS and police to review digital case management systems.
The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/
Transforming our Justice System: Transformation – Courts and Tribunals 2022
Despite the loss of the Prisons and Courts Bill 2017 at the General Election, held in June 2017, work on the Transforming our Justice System programme continues apace. (For those aspects of the reforms which need legislation, a replacement bill is expected shortly.)
Keeping up to date with the progress that has been made is hard, as most of the changes do not hit the headlines in the media. (About the only issue which has been subject to any public discussion has been criticism from the Bar about a pilot trialling the use of courts for longer periods during the day. The criticism focussed almost entirely on the inconvenience this would cause to barristers – no mention of the possibility that the public might prefer court hearings outside the traditional 10-4 Monday-Friday time frame.)
Specific developments can be noted by keeping an eye on Press Releases from the Ministry of Justice. A recent example is the announcement of the opening of the first two Courts and Tribunals Service Centres in Birmingham and Stoke on Trent
See https://www.gov.uk/government/news/first-courts-tribunals-service-centres-launched
A more rolling source of news can be found in the extremely interesting blog relating to the transformation programme – now called Transformation: Courts and Tribunals 2022. This provides news about the new services that are being developed for modernising the courts and tribunals system, both giving accounts of what is currently on going and also what is planned.
The link to the blog is at https://insidehmcts.blog.gov.uk/category/transformation-courts-and-tribunals-2022/
It is possible to sign up to an email notification service so that you are told when a new blog entry is published.
A right to justice? The Bach Commission Final Report
Interesting summary of the Bach Report on a Right to Justice
Source: A right to justice? The Bach Commission Final Report
Reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012
In 2008, the then Labour Government announced its support for the concept of post-legislative scrutiny of legislation. It stated that “the basis for a new process for post-legislative scrutiny should be for the Commons committees themselves, on the basis of a Memorandum on appropriate Acts submitted by the relevant Government department, and published as a Command paper, to decide whether to conduct further post-legislative scrutiny of the Act in question.”
The Ministry of Justice has just (October 30 2017) published a post-legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which it has sent to the Justice Select Committee. While much of the document seeks to explore the extent to which Government objectives in introducing the legislation have or have not been met, it also draws together a number of important other reports which have commented more critically on the effect of LASPO. These include, for example, the reports of the Low Commission, and the Bach Commission’s report on a Right to Justice (both noted in this blog). It also refers to other reports, e.g. from the National Audit Office, and the Equality and Human Rights Commission, and reports from a number of other Parliamentary Committees. It also notes how the Government has responded to a number of legal challenges that were made to LASPO. The response of the Justice Committee is not yet known.
Whether or not the Committee pursues its own post-legislative scrutiny, it is important to note that, in the memorandum, the Government confirms that in the course of the coming months it will undertake two more analytical reviews of aspects of LASPO, relating to,
- the changes to the Legal Aid scheme, and
- the changes to rules on the funding of litigation.
This will provide an opportunity for critics of LASPO to make their arguments and might lead to further thought being given to the ideas set out in the Low and Bach Commissions’ reports.
It will also provide the opportunity to reflect on the changes resulting from Lord Justice Jackson’s review of Costs and his 2017 Supplementary Report (also noted in this blog).
The text of the memorandum is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/655971/LASPO-Act-2012-post-legislative-memorandum.pdf
UKAJI New Voices Workshop: Report
Interesting collections of papers by younger researchers in administrative justice
Employment Tribunals fees: payback scheme
In R (on the application of UNISON) (Appellant) v Lord Chancellor (Respondent) [2017] UKSC 51 (noted in this blog on 1 October 2017) the Supreme Court held that the fees being charged for taking cases to Employment Tribunals were so high that they were effectively barring access to justice. In consequence the Court ruled that the fee scheme was unlawful. The Government has now announced arrangements for the refunding of those fees. Stage 1 of the refund scheme became operative on 20 October 2017.
It is clear that the Government plan to introduce a revised scheme which they hope will meet the Supreme Court’s objections.
For the announcement see https://www.gov.uk/government/news/opening-stage-of-employment-tribunal-fee-refund-scheme-launched
Redrawing Parliamentary constituency boundaries?
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/
The Right to Justice: Final Report of the Bach Commission
In September 2017, the Bach Commission (chaired by Lord Willy Bach) published its report on the Right to Justice. The Commission was established at the end of 2015 to find solutions that will restore access to justice as a fundamental public entitlement.
The commission found that the justice system is in crisis. Most immediately, people are being denied access to justice because the scope of legal aid has been dramatically reduced and eligibility requirements made excessively stringent. But problems extend very widely through the justice system, from insufficient public legal education and a shrinking information and advice sector to unwieldy and creaking bureaucratic systems and uncertainty about the future viability of the practice of legal aid practitioners.
Covering many of the same issues as the Low Commission (which reported in 2014) this report makes the following specific recommendations.
The commission has concluded that the problems in the justice system are so wide-spread that there is a need for a new legally enforceable right to justice, as part of a new Right to Justice Act. This Act would:
- codify existing rights to justice and establish a new right for individuals to receive reasonable legal assistance without costs they cannot afford;
- establish a set of principles to guide interpretation of this new right covering the full spectrum of legal support, from information and advice through to legal representation;
- establish a new body – the Justice Commission – to monitor and enforce this new right.
The purpose of the Right to Justice Act is to create a new legal framework that will, over time, transform access to justice.
In addition, early government action is also required.
- Legal aid eligibility rules must be reformed, so that the people currently unable either to access legal aid or to pay for private legal help can exercise their right to justice.
- The scope of civil legal aid, which has been radically reduced, must be reviewed and extended. In particular, all matters concerning children should be brought back into the scope of legal aid.
- An independent body that operates the legal aid system at arm’s length from government should replace the Legal Aid Agency and action must be taken to address the administrative burdens that plague both the public and providers.
- Public legal capability must be improved through a national public legal education and advice strategy that improves the provision of information, education and advice in schools and in the community.
My own view is that there is a growing consensus that the cuts to legal aid have gone too far. I have doubts whether there will be a wholesale return to the legal aid system that existed before the programme of cuts that has been going on for the best part of a decade.
This is potentially an important area of policy making. However, when considering new policies:
- more attention should be given to new ways of delivering legal services, embracing new technologies that would allow more to be provided for less;
- greater consideration of alternative sources of funding for the provision of legal advice and assistance, especially through different forms of insurance;
- the legal needs of small and medium size business should be treated as seriously as the legal needs of individuals, and
- there should be a recognition that there is scope for ‘do-it-yourself’ lawyering.
The Bach report may be downloaded from http://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission_Right-to-Justice-Report-WEB.pdf
The Report of the Low Commission is at https://www.lowcommission.org.uk/dyn/1389221772932/Low-Commission-Report-FINAL-VERSION.pdf together with a follow up report, published in 2015 at https://www.lowcommission.org.uk/dyn/1435772523695/Getting_it_Right_Report_web.pdf
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 