Queen’s Speech 2017 and the Parliamentary session: 2017-2019
The draft legislation relating to the exit of the UK from the European Union is going to be extremely complicated – both in terms of the technical content of the proposed measures, and in terms of the political controversies that the legislation will attract, arising from the fact that Mrs May is leading a minority Government in the House of Commons and that there is a great deal of opposition to Brexit in the House of Lords.
The Government has therefore decided that, exceptionally, the current Parliament should last for two years rather than more normal one. Thus the next Queens Speech, following that delivered in June 2017, will not be made until May 2019.
In addition to the raft of measures required to deal with different aspect of Brexit, the 2017 speech contained annoucements about two measures that will have specific impact on the English legal system.
- “Legislation will be introduced to modernise the courts system and to help reduce motor insurance premiums.” This will not actually be wholly new. The measures relating to court reform and insurance premiums were originally contained in the Prisons and Courts Bill 2017, which fell when the 2017 General Election was called. The revised version of the new Bill has not yet been published but may be anticipated in Autumn 2017.
- “To support victims, my government will take forward measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests.” This is a reform that has long been called for. The details of this measure are not yet available.The Queen’s speech may be read at https://www.gov.uk/government/speeches/queens-speech-2017
Regulation of Claims Management Companies: The Financial Guidance and Claims Bill 2017
In March 2016, the Government announced that it planned to change the ways in which the regulation of Claims Management Companies is organised.
At present, this work is undertaken by a special unit within the Ministry of Justice. What is planned is that this work should be transferred to the Fincancial Conduct Authority – which has broad regulatory oversight of the financial services sector.
In the Financial Guidance and Claims Bill, which was published in June 2017, legislative proposals have been set out which – when the Bill is enacted – will achieve this objective. Clauses in the Bill will make amendments to the Financial Services and Market Act 2000 to enable the Financial Conduct Authority to regulate claims management company activity as a ‘regulated activity’ under the Act.
In addition, clauses in the Bill provide for the transfer of complaints-handling responsibility from the Legal Ombudsman to the Financial Ombudsman Service. This will allow the Financial Ombudsman Service to take over jurisdiction to investigate and determine consumer complaints about the service provided by the claims management companies.
The Financial Conduct Authority will also be given power to impose a cap on the fees that claims management companies can charge for their services.
These seem to me sensible reforms which should offer better protection to consumers who use Claims Management Companies and to protect companies against malpractice by those companies.
The Bill has started its progress through Parliament. I anticipated the measures will be enacted sometime in 2018, with implementation shortly thereafter.
The Bill can be viewed at https://publications.parliament.uk/pa/bills/lbill/2017-2019/0001/18001en03.htm
Recent annual reports on the work of the Claims Management Regulator can be found at https://www.gov.uk/government/collections/claims-management-regulator-annual-reports
Keeping the administrative justice system under review
When the first major step was taken in the creation of what we would today recognise as a modern administrative justice system – the passing of the Tribunals and Inquiries Act 1958 – the Government of the day decided to create a statutory body – the Council on Tribunals – to keep the work of tribunals under review.
It was a body whose influence waxed and waned over subsequent years, but its reports were influential, particularly in promoting the need for training of tribunal personnel, ensuring that procedures would enable unrepresented parties to have the chance to be heard.
The Leggatt Review of Tribunals (of which I was a member) started with the view that the time had come to abolish the Council – but during discussion, it changed its mind, not least because of the powerful advocacy of its then Chair, the late Lord Tony Newton. Leggatt ended up recommending retention of the body that came to be known as the Administrative Justice and Tribunals Council (AJTC).
In the so-called bonfire of the quangos launched by the Cameron-Clegg Coalition Government in 2010, the AJTC was once again back in the firing line. The truth is that civil servants had long wanted to get rid of a body which they felt added to their administrative burdens without offering much in return.
Notwithstanding the fact that in its final years, the AJTC did extremely valuable work looking at some of the principles and broad strategic issues affecting the administrative justice system, the axe finally fell on the AJTC in 2013.
This was not however the end of the story. An Administrative Justice Advisory Group was created in 2012. In 2013 it became the Administrative Justice Forum (AJF). It was given a specific remit to keep under review the strategic programme of work being undertaken with regard to the administrative justice system – in particular tribunals – work now being taken forward under the Transforming Our Justice System programme.
In March 2017, the Government published the final report of the AJF, summarising some of the issues on which the Ministry of Justice had been working since 2013. Although the work is still ongoing, the AJF has been shut down.
Interestingly, its functions have not entirely disappeared. Arrangements are being put in place (the full details are not yet finalised) for JUSTICE, the Human Rights Group that has been engaged in a major programme of work relating to aspects of the development of the justice system, to host a new advisory group which will continue to have input to the Ministry of Justice.
The key topics on which the AJF reported were, in fact, issues which the former AJTC had done much to promote – for example,
- the importance of ensuring that practice and procedure take users of tribunals fully into account;
- the importance of Government departments learning from the outcomes of tribunal decisions, particularly where the may indicate operational practices that may need changing;
- the importance of enduring that there was no excessive delay in arranging and delivering decisions.
What the AJF did not do was consider broader questions about how different parts of the administrative justice system – tribunals, ombudsmen, complaints procedures – might interact more efficiently.
From my perspective what the latest development shows is that trying to keep a clear overview of the whole of the administrative justice landscape is a daunting prospect, particularly at a time when the bulk of civil service resources have to be devoted to the modernisation programme currently under way. This overview has to come from outside government, led by those who can take a holistic view and who are not locked into any specific aspect of the system.
For the final report of the Administrative Justice Forum see https://www.gov.uk/government/publications/administrative-justice-and-tribunals-final-progress-report
Business and Property Courts
The creation of the Business and Property Courts was noted here in April. From 4 July 2017 a series of events is being held in court centres around the country to launch the new Courts. The Courts will become operational from 2 October 2017.
The existing courts being brought together under the single umbrella are:
- The Admiralty Court.
- The Business List
- The Commercial Court (covering all its existing subject areas of banking and finance, shipping and insurance, trade and energy, and international arbitration, as well as the Circuit Commercial Courts, formerly Mercantile Courts.)
- The Competition List.
- The Financial List (covering banking and financial markets).
- The Insolvency and Companies Court.
- The Intellectual Property List (Including the Patents Court and the Intellectual Property and Enterprise Court, the “IPEC”).
- The Property Trust and Probate List.
- The Revenue List.
- The Technology and Construction Court (covering all its traditional areas of major technology and construction cases).
For further details see https://www.judiciary.gov.uk/announcements/launch-of-business-and-property-courts/
Prisons and Courts Bill 2017: new version awaited
One of the casualties of the calling of the General Election in June 2017 was that the Prison and Courts Bill 2017 was lost – i.e. failed to complete its Parliamentary process.
I have noted in earlier blogs the key features of this important legislation, both in relation to the reform of the Prison Service and to the Civil Justice system. It also planned to deal with rules relating to whiplash injuries (see entries in Spotlight on the Justice System 8 March 2017.)
It is clear from announcements in the Queen’s speech – delivered in June 2017 – that the Bill will be introduced, not necessarily in the same form but with the same policy objectives in mind.
For the moment, therefore, plans are on hold (though civil servants are actively working on the assumption that eventually they will get the new legal powers they need to introduce the proposed reforms.)
I will give further details when the new Bill is published.
Fixed-term Parliaments Act 2011 and the General Election 2017
There were those who thought that the enactment of the Fixed-term Parliaments Act 2011 meant that there would be general elections only every 5 years, unless very special circumstances arose. Enacted by the Cameron-Clegg government, it was designed to give some assurance that the Coalition Government would stay in power and would not be able to call a general election just on the whim of the Prime Minister.
What few people appreciated, however, was that the terms of the legislation did not in fact prevent the Prime Minister – now Theresa May – from putting in process the steps that would enable her to call an election, at a time when she was seeking to strengthen her position as Prime Minister, given her apparent strong position in the opinion polls. All she needed was a vote passed by a 2/3rds majority of MPs to trigger an early election.
As we now know, things did not work out like that. Her gamble did not pay off – at least not in the way she anticipated. So where are we with the Fixed-term Parliaments Act?
It remains on the statute book, and there are some who think that there will be a General Election – under the terms of the Act – in 2022. Political reality suggests, however, that the next election will take place before then. Exactly when will depend on specific factors such as strength of the Prime Minister’s position, and the progress of the Brexit negotiations.
I would not be surprised if, at some date in the not too distant future, steps were taken to repeal the legislation – unless perhaps there is another period of Coalition Government in the UK.
New Lord Chancellor and Secretary of State for Justice: David Lidington MP
Following the outcome of the General Election in 2017, the period of office of the first female Lord Chancellor, Lynne Truss MP, was brought to an end.
This was widely predicted, as there was a widely held opinion, especially among lawyers and the judiciary, that she had failed to gain the confidence of the legal profession. In particular, her failure to intervene to protect the independence of the judiciary when sections of the mass media attacked senior judges for upholding the argument that parliamentary authority was required before the formal process of the UK leaving the EU could begin, was seen as a lack of understanding of the Lord Chancellor’s obligations to protect the independence of th judiciary, set out in the Constitutional Reform Act 2005. Lord Thomas, the current Lord Chief Justice, was particularly critical of this.
Truss’ replacement is David Lidington MP. He is another post holder who has no experience of the law. Under section 2 of the Constitutional Reform Act, non-lawyers must nevertheless be ‘qualified by experience’. What this phrase means in practice is proving hard to determine. Presumably the post holder should be someone who understands and is willing to uphold the independence of the judiciary – even where such independence may lead to decisions unwelcome to the Government of the day.
At present it is impossible to say whether the new appointee will turn out to be a more satisfactory appointment than his predecessor, though his previous experience as a Foreign Office Minister suggests that he may have a particular understanding of the importance of upholding the rule of law, and the function of the judiciary is the process.
For comments of the Lord Chief Justice to the Constitution Committee of the House of Lords see http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/constitution-committee/lord-chief-justice/oral/49312.pdf
For the Lord Chancellor’s speech at his swearing-in ceremony, see https://www.gov.uk/government/speeches/lord-chancellor-swearing-in-speech-david-lidington
Book review: Ombudsmen at the Crossroads
This is a interesting review of a book by Nick O’Brian and Mary Serevinatne about the now defunct Legal Services Ombudsman (now replace by the Office for Legal Complaints). Written by the current Parliamentary and Health Services Ombudsman, Rob Behrens, both the book and the review offer interesting insight into the role of ombudsmen and how they may better serve the public.
Immigration appeals and delays: On the verge of a crisis?
This links to a short blog article written by Robert Thomas, the leading academic authority on the work of Immigration Tribunals. Analysing recent (December 2016) reports from the Public Accounts Committee and the Justice Select Committee (among others), the note provides evidence that while the number of appeals are declining, the numbers of appeals already in the system awaiting a decision is actually increasing. This seems to be largely the consequence of an over-zealous reduction in the number of Tribunal Judges.
The announcement that the Human Rights Group JUSTICE is embarking on a review of immigration appeals is therefore particularly welcome.
Source: Immigration appeals and delays: On the verge of a crisis?.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 