Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘devolution

Report of the Commission on Justice in Wales: summary of recommendations

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I have just published a short blog on the constitutional changes being made in Wales. As part of that, I mentioned the publication of the Commission on Justice in Wales, whose report was published in October 2019. I think it is an extremely interesting document, for two main reasons.

  1. There are a number of specific ideas in this report which should be considered more actively for implementation in England as well.
  2. It offers a holistic set of proposals for a distinct Justice system for Wales. I have long thought that justice policy in England was made in a piecemeal way. This report provides a model of what a comprehensive Justice Policy in England might look like.

Of course, it is easier for a new government to engage in forward planning at a time when its responsibilities are limited. But the ways in which different parts of the English legal system have been dealing with Covid 19 have often been innovative and imaginative. I would argue that this provides an opportunity, for those willing to seize it, for thinking about what a coherent modern justice policy for England might look like.

Anyway, I offer this summary, adapted from the Commission’s report as something that those interested in Justice policy in England might also like to consider.

Source: Commission on Justice in Wales at https://gov.wales/commission-justice-wales

Commission on Justice in Wales: Summary of recommendations

1. Information, advice and assistance

  • The funding for legal aid and for the third sector providing advice and assistance should be brought together in Wales to form a single fund.
  • Criminal legal aid policy and delivery should be based on the approaches to public defender schemes adopted by the Nordic nations.

2. Criminal justice: reducing crime and promoting rehabilitation

  • A new Wales Criminal Justice Board should be created. It should set an overall strategy for Wales including responsibility for ensuring the rights of victims are respected and there is proper delivery of services to victims.
  • The Police, Crown Prosecution Service, the judiciary and HM Prison and Probation Service should each publish a strategy in respect of Black, Asian and Minority Ethnic people in Wales and report annually on the strategy to the Assembly.
  • Policing and crime reduction policy, including drug abuse and mental health related issues, should be determined in Wales so that it is aligned and integrated with Welsh health, education and social policy.
  • Problem-solving courts should be established in Wales along the Northern Ireland model.
  •  Youth justice policy should be determined and delivered in Wales. The age of criminal responsibility should be raised to at least 12 years old.
  • A comprehensive network of services and centres as alternatives to custody should be established rapidly. An integrated and whole system approach to offender management should be established with a single rehabilitative strategy in Wales.
  • Needs assessments of Welsh offenders should be conducted to identify the range of interventions required in both prisons and the community.

3. Civil justice

  • Digital court services and other dispute resolution services that are being developed and introduced must be fully accessible to people throughout Wales.
  • Dispute resolution before courts, tribunals, alternative dispute resolution and ombudsmen, as well as dispute resolution in respect of administrative law, should be promoted and coordinated in Wales through a body chaired by a senior judge.
  • The feasibility of a low cost and effective resolution method for civil disputest hrough the use of a comprehensive ombudsmen scheme, taking into account the online court, should be examined.

4.  Administrative justice and coroners

  • All public bodies, ombudsmen and other tribunals which have been established under Welsh law or by the Welsh Government, which make judicial or quasi-judicial decisions, and are not currently subject to the supervision of the President of Welsh Tribunals, should be brought under the supervision of the President.
  • The Administrative Court should have the power to stay court proceedings whilst the Public Services Ombudsman for Wales investigates a complaint. The Ombudsman should have the power to refer a point of law to the Court.
  • The Welsh Tribunals Unit should have structural independence and the Welsh tribunals should be used for dispute resolution relating to future Welsh Legislation.

5. Family justice: children

  • The law relating to children and family justice in Wales should be brought together in one coherent legal system aligned with functions in relation to health, education and welfare.
  • Pending further research and the development of a long-term strategy, an all Wales approach to family justice should be developed and led in Wales through the Family Justice Network for Wales and the Local Family Justice Boards. The approach should be followed by all local authorities for dealing with child protection referrals with the objective of avoiding care proceedings when family support would be more appropriate.
  • It should be a matter of routine practice prior to the first hearing in care proceedings to examine the feasibility of problem-solving and the form it might take, with a view to finding what steps short of taking a child into care can be put in place.
  • The voice of the child should be heard at every stage of the proceedings.
  • Family Drug and Alcohol Courts should be established in Wales
  • There should be vigorous support for a programme of research to underpin reform of Welsh family justice and associated preventative services. The overarching aim should be the reduction in the numbers of children taken into care and the provision of far better evidence of the impacts of intervention on family life.
  • A carefully thought through long-term policy for reducing the numbers of children taken into care should be developed after the conclusions of the research and then implemented.
  • Legal advice should be available to each parent in private family law disputes prior to the commencement of proceedings up to a maximum fixed amount in each case

6. Delivering justice: locality and structure

  • A strategy for Wales for provision of proper physical and digital access to justice before the courts, tribunals and other forms of dispute resolution should be drawn up and determined in Wales based on the needs of the people of Wales

7. The legal sector and the economy of Wales

  • The Welsh Government should, in close consultation with the legal professions, provide fully-funded legal apprenticeships to enable people to qualify as legal professionals in Wales.
  • There should be greater transparency about the level and distribution of expenditure on external legal services by the Welsh Government, each Welsh local authority and all other public bodies in Wales.
  • The procurement of barristers’ services should be reformed to help build the capacity of the Bar in Wales.
  • The Welsh Government should develop and implement as soon as possible our proposed strategy to reinvigorate the rural and post-industrial legal sector in Wales. It should provide strong support for investment in technology, especially in post-industrial and rural Wales.
  • The Welsh Government must provide clear leadership and support for the legal services sector. This should be targeted, user-friendly, flexible and attractive to potential inward investors especially with establishing a technology-based nearshoring centre as an objective.
  • The Welsh Government, legal professionals in Wales, the Law Society, the Bar Council, other professional bodies and academia should work in partnership. They should develop and promote the capabilities of the legal sector, promote South Wales as a legal centre and increase the export of legal services.

8. Knowledge, skills and innovation

  • Welsh law schools must reassess their undergraduate programmes to take advantage of the scope for comparative studies and transferable qualifications.
  • Law tech must be taught to all students and the professions across Wales.
  • All university and college education providers in Wales should teach Welsh law as part of the ordinary undergraduate syllabus and work together to produce the necessary material. The place of Welsh law and the distinctiveness of the law in Wales should be properly reflected in professional and continuing legal education and training. Wales specific data should be collected and published on a sufficient scale to enable disaggregation, with a view to proper evidence-based policy development and as a basis for research.
  • The Welsh Government should lead the development and implementation of an action plan to promote and support public legal education, particularly for children and young people.

9. The Welsh language

  • All justice bodies should be subject to the Welsh Language Measure 2011. The Bar, CILEx and the Law Society should provide courses on using Welsh in the workplace, similar to those used by the Judicial College. Digital services that are being introduced must be accessible, free help must be available and all must be available in Welsh at the same time as the English version.
  • Professional legal education for those wishing to practise in Wales must be available in the Welsh language with the phased introduction of the availability of all professional examinations in Welsh.  Welsh law schools must collaborate on Welsh medium legal education, especially as regards the provision of teaching materials. All coroner services should be available in the Welsh language.

10. Recommendations on devolution of justice

  • There should be legislative devolution of justice. Restrictions and reservations governing the Assembly’s power to legislate on all forms of justice, including policing and offender management and rehabilitation, should be removed, so that it corresponds more closely with the position of the Northern Ireland Assembly and the Scottish Parliament In tandem with the removal of reservations and restrictions on the Assembly’s powers, responsibility for executive functions in relation to justice in Wales should be transferred to the Welsh Government.
  • Devolution of justice must be accompanied by a full transfer of financial resources, including all identifiable administrative and capital resources relating to Wales.

11. Recommendations to be implemented under the current scheme of devolution

  • Clear and accountable leadership on justice in the Welsh Government must be established under the current scheme of devolution. The Assembly should take a more proactive role in appropriate scrutiny of the operation of the justice system.
  • The Welsh Government should address policy issues relating to justice by using external experts who can report jointly with civil servants to Ministers.
  • The Welsh Government and the legal sector should develop a joint leadership programme.
  • A Law Council of Wales should be established to promote the interests of legal education and the awareness of Welsh law, to ensure proper provision of teaching the law in Welsh, and to assist students in their education and training as future practitioners.
  • The organisation of the senior judiciary in Wales should be changed to provide the necessary working relationships and leadership within Wales.  Wales should be put in a similar position to Scotland and Northern Ireland in the Supreme Court as regards the appointment of judges to the Supreme Court.

12, Recommendations for implementation with legislative devolution

  • With legislative devolution, there must be a new Justice Department in the Welsh Government led by a Cabinet Minister.
  • The office of Counsel General should continue as an office that provides independent legal advice to the Welsh Government and heads the Government Legal Service in Wales.
  • Legislative devolution will require the establishment of a Justice Committee in the Assembly.
  • Where there is overlap between the roles of local, regional and national boards, committees and partnerships, they should be merged.
  • With legislative devolution, the governance arrangements for the police should be re-examined.
  • The law applicable in Wales should be formally identified as the law of Wales, distinct from the law of England.
  • The present system where legal practitioners can practise in England and Wales and the legal professions are jointly regulated should be continued.
  • Legislation should provide for a High Court and a Court of Appeal of Wales to be established by the Assembly.
  • With legislative devolution, a Welsh Courts and Tribunals Service should be developed from the base of a Welsh Tribunals Unit reformed on the model of the Scottish Courts and Tribunals Service.
  •  With legislative devolution, the Welsh Government will need to review, and keep under continuing review, the justice infrastructure for Wales.

13. Action to be taken now by the Welsh Government and the Assembly

  • The Welsh Government should begin the process of reform by listing the recommendations it will seek to implement whilst the current scheme of devolution continues. The Assembly should make arrangements to monitor and review the process of reform.

The Legal System of Wales – recent developments

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In my book, Introduction to the English Legal System, I write that the book is “about the English legal system (which includes at least for the present the legal system in Wales)”.

However, devolution has led to a number of developments which need to be noted which point to the creation of a distinct system of government for Wales. In this context it is possible to see the outlines of a new Welsh Legal system beginning to emerge.

1 The National Assembly of Wales – executive and ‘legislature’

The first Government of Wales Act 1998 (GOWA 98) began a process of devolving powers to Wales. It created a new body, the National Assembly of Wales. Under GOWA 98 this body had executive functions in delivering policy and services in specific areas such as agriculture, culture, economic development, education, health, housing, local government, social services and planning. Henceforth, the National Assembly became responsible for carrying those out in respect of Wales.

At the same time. the National Assembly was given limited legislative powers including the making of regulations, rules and orders, and the giving of financial assistance. The National Assembly was also the body which held the Welsh Government to account.

This blending of executive functions and parliamentary functions proved to be very confusing.

In fact, soon after the National Assembly of Wales was established an informal division was created between the ‘Welsh Assembly Government’ (Ministers and civil servants predominantly based in Cathays Park, Cardiff and other offices across Wales) and the ‘National Assembly for Wales’ (Assembly Members and officials based in Cardiff Bay).

2 National Assembly and Welsh Government

The informal division between the legislative and executive branches of the Welsh Government was formally recognised in the Government of Wales Act 2006 (GOWA 2006).

This established a newly constituted National Assembly as the legislature. It also created a separate executive – initially called the ‘Welsh Assembly Government’, later amended to the ‘Welsh Government’. It was made accountable to the National Assembly.

GOWA 2006 gave the National Assembly power to pass its own primary legislation – initially called ‘Assembly Measures’, from 2011 called  ‘Assembly Acts’. These Measures and Acts were limited to 21 areas of activity which were conferred on the National Assembly by the UK Parliament in Westminster. The Wales Act 2014 increased those power by giving the National Assembly limited taxation powers.

The Wales Act 2017 changed the system for determining the powers of the National Assembly from a ‘conferred powers’ model to a ‘reserved powers’ model. (This is consistent with the models adopted for Scotland and Northern Ireland.) In a reserved powers model, there is no specific list of devolved subjects. The model operates on the basis that everything is devolved unless it is reserved to the UK Parliament.

3. Senedd Cymru or the Welsh Parliament.

The increased importance of the Parliamentary function led politicians in Wales to argue that the name of the National Assembly should be altered to reflect more clearly its legislative function. After a period of consultation and legislation, the name of the National Assembly of Wales was changed, on 5 May 2020, to ‘Senedd Cymru or the Welsh Parliament’.  With full law-making powers and the ability to vary taxes, the new name will reflect its constitutional status as a national parliament.

4. A Welsh Justice system

Under the doctrine of the separation of powers, governments comprise 3 separate branches: a legislature, an executive and a judiciary. For Wales, the first two of these are now in place. Currently, there is no clearly delineated Welsh Justice system. There are, however, moves to change the current position.

  • Commission for Justice in Wales

The Welsh Government established a Commission for Justice in Wales in December 2017. It reported in 2019. It was chaired by Lord John Thomas, who had recently retired as the Lord Chief Justice for England and Wales.

Its report is a very wide-ranging one covering such issues as: legal aid and advice; new approaches to civil dispute resolution; new approaches to the sentencing and rehabilitation of offenders and the protection of victims of crime. I plan to summarise its principal recommendations in a separate blog item.

The work of the Commission for Justice has been complemented by a programme of social research, funded by the Nuffield Foundation, on the development of Administrative Justice in Wales, which has produced reports on matters including housing and education.

  • The Legislation, Justice and Constitution Committee Consultation

Arising from the Commission’s report, the Legislation, Justice and Constitution Committee of Senedd Cymru ran,  from March to June 2020, a consultation on Making Justice Work in Wales.  Its terms of reference stated that its work should be in 2 parts: (i) fact-finding and looking forward; and  (ii) analysis of how the justice system could operate more effectively in Wales

In Part 1, the Committee intends

  • To identify and map the Senedd and Welsh Government’s existing responsibilities and functions relating to the scrutiny of justice matters;
  • To identify and review the current funding arrangements for justice matters already within the responsibility of the Senedd and Welsh Government;
  • To consider the existing operation of justice functions in Wales, including Welsh Government policies in devolved areas and their interaction with the administration of justice;
  • To consider the impact of relationships between UK and Welsh competence on specific justice matters and to identify areas of concern;
  • To consider how the Senedd could have a more proactive role in the scrutiny of justice, including how justice bodies could engage with the Senedd.

In Part 2,  the Committee is asked:

  • Using results of Part 1, to explore any areas of concern in the balance of justice powers and accordingly whether a more coherent and joined-up approach to justice policy could be achieved;
  • To consider the implications, consequences and practicalities of any potential justice devolution;
  • To learns lessons on the approach to scrutiny of justice from the UK and other legislatures.

The outcome of the inquiry has not yet been published.

Sources:

General information about the Welsh Government is at https://gov.wales/

Information about Senedd Cymru is at https://senedd.wales/en/Pages/Home.aspx

The Commission on Justice in Wales Report is at https://gov.wales/commission-justice-wales-report

The Nuffield Foundation sponsored programme on Administrative Justice in Wales is at https://www.nuffieldfoundation.org/project/paths-to-administrative-justice-in-wales

Information about the Senedd Cymru Committee inquiry is at https://business.senedd.wales/mgConsultationDisplay.aspx?id=388&RPID=1017209288&cp=yes

 

 

 

 

Justice in Wales – a developing picture

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Until relative recently it was possible to state that, for all practical purposes, the justice system in Wales was the same as the justice system in England.

Since devolution began, following enactment of the Government of Wales Act 2006, this statement needs qualification. Following the passing of the Wales Act 2017, the pace of change has quickened.

Two major initiatives are in progress. First, an Independent Expert Advisory Committee has been looking at the operation of Justice in Wales. Second, the former Lord Chief Justice, Lord Thomas, has been commissioned by the Welsh Government, to undertake a review of justice arrangements in Wales.

Lord Thomas’s review is expected in Autumn 2019. This note reports on the first report from the Independent Expert Advisory Committee.

The Committee’s terms of reference are to:

  • review the operation of the justice system in Wales on an ongoing, periodic basis.
  • make recommendations that ensure that the justice system in Wales keeps pace with both Assembly and Parliamentary law making within the single jurisdiction.
  • monitor the effectiveness of administrative arrangements on justice in Wales and make recommendations to deliver efficient and effective justice services across the devolution boundary, building on examples of good practice and co-operation.

The report states:

The Committee is considering the effects of laws passed by the National Assembly for Wales and the UK Parliament on the operation of the justice system within the single legal jurisdiction in England and Wales and is working strategically to identify key challenges in the justice landscape in Wales, how they can be overcome and wider opportunities for better administration of justice.

These challenges and opportunities cover all areas of the single legal jurisdiction, including criminal justice arrangements; courts and tribunals; prisons and probation; legal practice and the judiciary.

The Committee is also monitoring any issues relating to the relationship between reserved and devolved tribunals.

The Committee is also considering the wider implications of policy developments in UK government on the operation of justice in Wales, in order to recommend sustainable long-term solutions that would improve delivery. This work provides opportunity for a structured approach to tackling challenges identified in this first report on the operation of justice in Wales.

The report also states:

The key issues the Committee are currently focusing on are divergence in laws and accessibility of Welsh laws. The main priorities are to ensure that the impacts on the justice system of diverging laws and legislation are properly identified, accessibility of Welsh laws is improved and that there is continually improving collaboration between the MoJ and Welsh Government officials.

This is therefore work in progress, the outcomes from which are not yet clear. But what is clear that over coming years the justice system in Wales will increasinly diverge from that in England – an issue on which lawyers both in England and Wales will need to take note.

The first report of the Independent Expert Advisory Committee is at https://www.gov.uk/government/publications/justice-in-wales-first-report-of-the-independent-advisory-committee-on-justice-in-wales

 

Written by lwtmp

September 20, 2019 at 9:51 am

The Wales Act 2017

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The Wales Act 2017 amends the Government of Wales Act 2006 by moving to a ‘reserved powers’ model for Wales. (This is the model that underpins the devolution settlement in Scotland.) The reserved powers model set out in the Act provides a clearer separation of powers between what is devolved and what is reserved to the UK Parliament. As a consequence, the Assembly has power to legislate on any subject except those specifically reserved to the UK Parliament. (One measure that has already been announced is that there will be legislation to rename the Welsh Assembly the Welsh Parliament.

The Wales Act 2017 includes a declaration that the Assembly (Parliament) and the Welsh Ministers and the laws that they make, are considered a permanent part of the UK’s constitutional arrangements and will not be abolished without a decision of the people of Wales. It is also declared that the UK Parliament will not normally legislate with regard to devolved matters without the consent of the Assembly, whilst retaining the sovereignty to do so.

The Act devolves further powers to the Assembly and the Welsh Ministers in areas where there was political consensus in support of further devolution. These include:

  1. Devolving greater responsibility to the Assembly to run its own affairs, including deciding its name;
  2. Devolving responsibility to the Assembly for ports policy, speed limits, bus registration, taxi regulation, local government elections, sewerage and energy consenting up to 350MW;
  3. Devolving responsibility to Welsh Ministers for marine licensing and conservation and energy consents in the Welsh offshore region; and extending responsibility for building regulations to include excepted energy buildings;
  4. Devolving power over Assembly elections; and
  5. Devolving powers over the licensing of onshore oil and gas extraction
  6. Aligning the devolution boundary for water and sewerage services along the border between England and Wales.

The most interesting provision from a Legal System perspective is that the Wales Act provides for establishing in statute a President of Welsh Tribunals to oversee devolved tribunals and allowing cross-deployment of judicial office holders. This could be the first step in the development of a more distinct Welsh legal system.

The Wales Act 2017 is at http://www.legislation.gov.uk/ukpga/2017/4/introduction/enacted

 

For recent comment on the possible development of a distinct system of justice in Wales, see the report of the Justice in Wales Working Group at http://sites.cardiff.ac.uk/wgc/files/2017/09/Justice-in-Wales-Working-Group-Report-Final-2.pdf, and the work of the Welsh Governance centre on Justice in Wales: http://sites.cardiff.ac.uk/wgc/justice-in-wales/

Written by lwtmp

October 6, 2017 at 1:04 pm

Posted in Chapter 3

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Turning constitutional conventions into law

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During the debate on what became the Scotland Act 1998, Lord Sewel indicated in the House of Lords  (H.L. Deb vol. 592 col. 791) that “we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.

Clause 2 of the Scotland Bill 2015  inserts a new subsection (8) into section 28 of the 1998 Act so it is recognised in statute that, although the sovereignty of the UK Parliament is unchanged by the legislative competence of the Scottish Parliament, the UK Parliament will not normally legislate for devolved matters in Scotland without the consent of the Scottish Parliament.
For further details see http://services.parliament.uk/bills/2015-16/scotland.html

 

Written by lwtmp

October 13, 2015 at 4:31 pm

The Scotland Bill 2015

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A principal outcome of the Referendum on Scottish Independence was an agreement – the Smith Commission Agreement – that more power should be devolved from Westminster to the Scottish Parliament. The Scotland Bill was published in July 2015 and has started its progress through the Westminster Parliament.

The Explanatory Notes to the Bill summarise the contents of the Bill as follows:

The Bill is an enabling Bill and the majority of the provisions in the Bill set out the powers that are being transferred to the Scottish Parliament and or the Scottish Ministers. In particular the Scotland Bill amends sections of the Scotland Act 1998 and rebalances the devolved and reserved responsibilities between the administrations. The Bill also includes provisions which set out the constitutional relationship of the Scottish Parliament and Scottish Government within the United Kingdom’s constitutional arrangements. It does not amend this relationship.
…[T]he Bill:
• declares that a Scottish Parliament and a Scottish Government are considered permanent parts of the UK’s constitutional arrangements, and that the UK Parliament will not normally legislate in devolved areas without the consent of the Scottish Parliament, whilst retaining the sovereignty to do so;
• gives increased autonomy to the Scottish Parliament and the Scottish Ministers in relation to the operation of Scottish Parliament and local government elections in Scotland;
• gives increased autonomy to the Scottish Parliament in relation to the power to amend sections of the Scotland Act 1998 which relate to the operation of the Scottish Parliament and the Scottish Government within the United Kingdom;
• increases the financial accountability of the Scottish Parliament through devolution of the rates and bands of income tax, Air Passenger Duty and the Aggregates Levy, and assignment of VAT revenues;
• increases responsibility of welfare policy and delivery in Scotland through the devolution of welfare powers to the Scottish Parliament and / or the Scottish Ministers;
• gives significant responsibility to Scotland for areas such as road signs, speed limits, onshore oil and gas extraction, consumer advocacy and advice amongst others by devolution of powers in relation to these fields to the Scottish Parliament and the Scottish Ministers; and
• increases scrutiny for the Scottish Government of specific bodies and increases the ability of the Scottish Government to design schemes relating to energy efficiency and fuel poverty by the devolution of functions to the Scottish Ministers.

The Smith Commission Agreement increases the financial accountability of the Scottish Parliament. A new fiscal framework will be agreed for Scotland to accompany the further powers included in this Bill, in order to set and coordinate sustainable fiscal policy for the UK as a whole. This will give the Scottish Government the tools to manage the powers in this Bill while ensuring consistency with the fiscal framework in the rest of the UK. It is intended that that framework will be negotiated in parallel to the passage of this Bill.

There is still considerable political debate as to whether the provisions of the Bill go far enough. The Scottish National Party is arguing for more devolution. The final outcome of this process will be known in 2016.

The Bill and accompanying papers is at http://services.parliament.uk/bills/2015-16/scotland/documents.html

The subject of English Votes for English Laws – EVEL – is considered in a separate note.

Written by lwtmp

October 13, 2015 at 12:12 pm

The changing constitution – abolition of the Select Committee on Political and Constitutional Reform

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Just over a year ago, (October 2014) I published a blog item here on a consultation by the Political and Constitutional Reform Select Committee of the House of Commons in which it explored the arguments for and against the adoption of a Written Constitution. It followed that with a rather anodyne report, published before the dissolution of the Coalition Government, suggesting that more work should be done on this.
It also suggested that the Committee should be reconstituted after the outcome of the 2015 Election was known.
Despite the fact that there is considerable discussion about constitutional change, particularly issues – such as English Votes for English Laws – which came out of the Scottish Referendum, the Select Committee itself has not been reconstituted.

For the Select Committee’s Final Report on this subject go to http://www.publications.parliament.uk/pa/cm201415/cmselect/cmpolcon/599/59902.htm
Under the title ‘Consultation on A new Magna Carta?’ it attaches, as an Annex, a draft accessible summary constitution, with options for reform, written by Professor Robert Blackburn of King’s College London. This is an interesting contribution to a much wider debate.
For more detailed discussion about constitutional developments you need to look at the work of the Constitution Unit, based in University College London. See http://www.ucl.ac.uk/constitution-unit/

Written by lwtmp

October 12, 2015 at 3:04 pm

Reflecting on how measures set out in the Queen’s Speech 2015 may impact on the English Legal System

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The Queen’s Speech sets out each year the bare bones of the proposed legislative programme for the forthcoming 12 months.

I’ve been looking through the detailed briefing to see whether there are issues which will affect the English Legal System (ELS) that may not be apparent from the speech itself.

Here are my personal comments:

Enterprise Bill.

The headline aim of the new Bill is to reduce red tape and improve the ways in which regulators work. But there are also two specific ELS related issues that may be noted:

  • Establishing a Small Business Conciliation Service that will handle business-to-business disputes without the need for court action, tackling  in particular, late payment issues;
  • Introducing business rates appeals reform, including modifying the Valuation Tribunal powers to consider ratepayer appeals.

Immigration Bill

Among proposed measures to be set out here, there are proposals to change the way in which immigration appeals work. In particular, the Government plans to:

Extend the principle of “deport first, appeal later” from just criminal cases, to all immigration cases. In 2014 the
last government cut the number of appeal rights but other than foreign criminals, migrants retain an in-country
right of appeal against the refusal of a human rights claim. We will now extend the “deport first, appeal later” principle to all cases, except where it will cause serious harm.
Devolution
In addition to the well publicised plans to devolve further legislative power to the Scottish Assembly Government, there are also proposals for a new Wales Bill and a Northern Ireland bill that will also contain detailed devolution measures.
English Votes for English Laws
This contentious measure, designed to ensure that only English MPs vote on legislative measures that will only apply in England is to be introduced, not by legislation, but by changes to the Standing Orders of the House of Commons.
Investigatory Powers Bill
Among other issues this will deal with the question of who should authorise various forms of electronic surveillance – the Home Secretary or senior Judges (as recently recommended by the Government’s Independent Reviewer of Counter-Terrorism legislation)
Policing and Criminal Justice Bill
Among other things, this will change the law on Bail, The proposals are
To create a presumption that suspects will be released without bail unless it is necessary.
The Bill would initially limit pre-charge bail to 28 days, with an extension of up to three months, authorised by a senior police officer.
In exceptional circumstances, the police will have to apply to the courts for an extension beyond three months, to be approved by a magistrate.
This will introduce judicial oversight of the pre-charge bail process for the first time, increasing accountability and scrutiny in a way that is manageable for the courts.
British Bill of Rights
Proposals on this are delayed.
Victims of Crime Bill
This will put existing protections for Victims on a statutory footing and give greater protection to victims and witnesses
Votes for Life Bill
This will give UK citizens who live abroad a life time right to vote, rather than, as at present losing that right after 15 years.
Draft Public Sector Ombudsman Bill
Proposals to merge the current Parliamentary Commissioner, local government ombudsmen and the Health Service Ombudsman will be considered in a draft Bill.
Of course at this stage, most of the details are not available and they may well change during their various Parliamentary processes. But it is worth noting these issues so that you can keep an eye on them.
For more detail go to https://www.gov.uk/government/publications/queens-speech-2015-background-briefing-notes