Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘law commission

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.

 

 

 

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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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Search warrants – reform proposals

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As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.

The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of  a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.

A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.

Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence.  More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.

The Commission identified a number of problems with the current law:

  • the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
  • there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
  • a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
  • the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.

In the light of their analysis, the Commission has made proposals to:

  • simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
  • make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
  • modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
  • make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.

The consultation runs until 5 September 2018.

For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/

 

 

 

 

 

Written by lwtmp

June 7, 2018 at 9:35 am

Controlling trolling? A job for the Law Commission

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Although the Law Commission’s 13th Programme of Work was announced only in December 2017, the Commission has already had those plans amended by the Government asking whether changes to the law are needed to ensure that internet trolling can be controlled. More specifically the government has asked the Law Commission to review the laws around offensive communications and assess whether they provide the right protection to victims online.

This is a serious problem. Research shows that nearly a third of UK internet users were on the receiving end of trolling, harassment or cyberbullying in 2017.The Commission will  review  the current laws and set out how they apply to online communications. Its work be informed by developing Government policy in the Government Digital Charter. (See https://www.gov.uk/government/publications/digital-charter published in January 2018.)

Among issues to be addressed are the following:

  • How the Malicious Communications Act 1988 deals with offensive online communications

  • How the Communications Act 2003 deals with online communications

  • What “grossly offensive” means and whether that poses difficulties in legal certainty

  • Whether the law means you need to prove fault or prove intention to prosecute offensive online communications

  • The need to update definitions in the law which technology has rendered obsolete or confused, such as the meaning of “sender”

  • How other parts of the criminal law overlap with online communications laws

It is intended that thw work should be undertaken swiftly. A consultation paper is expected within 6 months.

For further detail see https://www.lawcom.gov.uk/government-asks-law-commission-to-look-at-trolling-laws/

 

Written by lwtmp

February 10, 2018 at 11:51 am

Law Commission: 13th Programme announced

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After delay resulting from the calling of the General Election in May 2017, the Law Commission has just (14 December 2017) announced its latest programme of law reform projects which it intends to take forward over the next three years.

The list is an interesting one containing a wide variety of topics.

A number of these can be see to be a response to technological change. Projects on Automated Vehicles, Electronic Signatures, Intermediated Securities or Smart Contracts would not have been on such a list, even three years ago (when the 12th Programme was published).

The general area of property law attracts a number of projects. These include: Modernising Trust Law for a Global Britain, Registered Land and Chancel Repair Liability, Museum Collections, Residential Leasehold, and Unfair Terms in Residential Leasehold.

There is a number of projects that will examine  how current processes, which affect the public, might be reformed. These include: Administrative Review, Employment Law Hearing Structures, and Simplifying the Immigration Rules.

Controversial issues concerning both the start and end of life are reflected in proposals to review Surrogacy and A Modern Framework for Disposing of the Dead.

In addition to these new projects, the Law Commission will continue to work on items brought over from the 12th Programme of work, including work on Sentencing, and Search warrants.

The Law Commission also lists a number of other topics which is considered for inclusion but which do not appear in the current programme.

Further details of all these projects can be found at https://www.lawcom.gov.uk/project/13th-programme-of-law-reform/

 

 

 

Written by lwtmp

December 14, 2017 at 12:14 pm

Posted in Chapter 3, Chapter 4

Tagged with ,

Implementation of Law Commission reports

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As a former law Commissioner, I retain an interest in the progress being made with the implementation of Law Commission reports. Under the Law Commission Act 2009, the Government is required to publish an Annual Report setting out progress with the implementarion programme. All went swimmingly up to March 2015 – annual reports were duly published, as required.

But nothing in 2016. The Government has now (January 2017) published the sixth report on implementation, setting out progress between January 2015 and January 2016 – but ‘updated to the point of publication’ – i.e. including details of what happened during 2016.

So what happens now? It seems unlikely that there will be a further formal report until early 2018. Reports every other year might actually make good sense. But that is not what the legislation requires. So long as the legal requirement for an annual report is on the statute book Government should take note of it.

Turning to the content of the report itself, if has to be said that, while no reports from the Law Commission have been definitively rejected by the Government,  the list of reports still under consideration by the Government is considerably longer than the list of reports implemented either wholly or in part.

The main success stories were in the areas of consumer rights, contempt of court by jurors, and the rights of third parties against insurers.

Looking to the future, the administrative burden that will inevitably be associated with the Brexit negotiation is likely to result in even slower implementation of reforms which – by definition – will have lower political prioroty.

For details of the Implementarion report, see https://www.gov.uk/government/publications/report-on-the-implementation-of-law-commission-proposals-january-2015-to-january-2016

Written by lwtmp

January 23, 2017 at 11:36 am

Bringing coherence to sentencing: proposals from the Law Commission

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There is a huge volume of law relating to the sentences courts may impose on those found guilt of committing criminal offences.

Indeed, there is so much that judges often take decisions that, in law, they are not allowed to make. To quote from a recent announcement from the Law Commission:

A survey of 400 Court of Appeal cases from 2012 by the sentencing expert Robert Banks found that 262 were appeals against sentences and that of these, 76 included sentences that had been unlawfully passed in the Crown Court. Banks wrote, “[This] figure shows that we can no longer say the sentencing system is working properly. Cases since then have indicated that these figures are not unrepresentative.”

Currently, the law lacks coherence and clarity: it is spread across many statutes, and frequent updates are brought into force at different times by different statutory instruments and with a variety of transitional arrangements. This makes it difficult, if not impossible for practitioners and the courts to understand what the present law of sentencing procedure actually is. This can lead to delays, costly appeals and unlawful sentences.

The Law Commission is currently engaged in a project designed to introduce a single sentencing statute that will act as the first and only port of call for sentencing tribunals.

It will set out the relevant provisions in a clear and logical way, and ensure that all updates to sentencing procedure can be found in a single place. It is not the aim of this project to interfere with mandatory minimum sentences or with sentencing tariffs in general. Those will remain entirely untouched, but the process by which they come to be imposed will be streamlined and much improved.

The latest stage in the process has recently taken place with the publication on 20 May 2016 of a paper setting out proposals for the transition from the current position to a reformed position.

The amount of work still to be undertaken is enormous, and will not be effective for at least two more year – perhaps longer. But this is a project of great importance not just to criminal lawyers, but all those interested in the criminal justice system.

For an outline of the progress on work to date go to http://www.lawcom.gov.uk/project/sentencing-code/

 

Written by lwtmp

May 20, 2016 at 5:27 pm