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Shami Chakrabarti on our concerns with the government’s Courts and Tribunal Bill

I’ve spent my adult life fighting unjust laws but some legislation is unjust for the provisions it fails to make. In its Queen’s Speech, the government heralded a programme of reforms to transform the way that the UK justice system operates. The Courts and Tribunal Bill is not that. However, we are assured by ministers that this scant legislation represents only part of a broader package – in essence, the beginning of a ‘legislative drip-feed’. 

The much anticipated reforms, at the cost of £1bn+ to tax payers, would “modernise” the courts service by transferring more court hearings online or via remote video-links. Despite deferring appropriate parliamentary legislative scrutiny and debate, the government is pushing ahead with planned closures, cuts and growing reliance on digital courts. It has, since 2010, closed hundreds of courts and cut thousands of vital staff. 

In May 2018, the National Audit Office (NOA) released a report raising serious concerns, with the observation that “expected costs have increased and planned benefits have decreased” – £200m more than the government’s original projections. Concerns were compounded, when ministers admitted to not undertaking sufficient research into the impacts of court modernisation, including on the impact on victims and witnesses. It also refused to publish the business case. 

To understand the perils of justice reforms without sufficient research and consultation, we need only look at the impact of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO). The Public Accounts Committee made clear that in bringing this forward, the Ministry of Justice had not “properly assessed the full impact of the reforms”. That impact has proved devastating for some of the most vulnerable in our society, with a drop of 46% in the number of legal aid cases granted since the LASPO provisions came into force. 

It is essential that Clause 3 of this Bill, which delegates judicial functions to ‘authorised staff’ is understood in this broader context of a wider agenda and the austerity measures behind it. The savings generated will arise through the reduction of the court estate and savings on judicial salaries. Further proposals include the relocation of many case management functions (i.e. listings and scheduling) to new off-site service centres. The implication is that these will be supervised by ‘authorised staff’, not judges. 

Though, there is argument for the delegation of the most straightforward decisions to ‘authorised staff’, the devil will be in the detail. Without limits on who can be delegated what powers, these measures have the potential to change the essential nature of our judicial system. Such fundamental reforms require external scrutiny by parliamentarians and should not be decided exclusively by Procedure Rule Committees, made up predominantly of senior judges. 

As the legislation begins its passage through the Lords, Labour will be pushing for limits to the delegation of judicial powers and for base qualifications of ‘authorised staff’ to be included on the face of the bill. With a minimum safeguard ofe a statutory right of reconsideration by a judge for any party to a decision by an authorised person – as recommended by Lord Justice Briggs in his 2016 report. 

With this wafer-thin bill, the government appears to be testing the waters for more controversial court reforms. It is vital that we understand its provisions in the context of the broader agenda of reforms and devastating cuts. Nor should we be persuaded that the bill itself does not have the potential to profoundly impact our justice system. Without careful scrutiny and additional safeguards, the government’s drip-feed may erode some of our most fundamental institutions.

Baroness Shami Chakrabarti is Shadow Attorney General

Published 20th June 2018

Court in the act

Shami Chakrabarti on our concerns with the government’s Courts and Tribunal Bill

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Baroness Angela Smith speech at start of Lords 'parliamentary ping-pong' debate on the EU Withdrawal Bill

My Lords, this is the first of the Motions before us today. Before dealing with the substance I’d like to briefly reflect on the role Your Lordships House has played in consideration of this Bill and, for the avoidance of any doubt, our approach to today’s business.

Despite attracting a little more excitement, this is the same procedure as for every legislative Bill that come before YLH. I’ve said before that the process of Brexit cannot be left to those who have no doubt.  It is only through consideration and challenge that we can get better, if not the best, outcomes for any legislation.

This Bill came to us, deeply flawed and divisive. Together, we’ve approached it thoughtfully and diligently. We’ve had some long days, and nights, in Committee and on Report.  And we’re grateful to those Government ministers across departments who have been willing to engage on some of the less controversial, but extremely important issues.

Of around 200 amendments passed, there were 15 that didn’t enjoy the initial or full support of the Government. Of those, 1 was totally accepted – on agencies. Another was largely accepted, with minor changes – on Northern Ireland. 8 were rejected – although on some of these, for example enhanced protection for EU derived protections – the Government has since made further concessions or, in the case of sifting, reinstated earlier amendments. 5 have been replaced with amendments in lieu that we will consider today, including this one on the Customs Union, and also on the publication of primary legislation to enforce environmental protections.

So we’re grateful to Government for their consideration and acceptance of so many of the points raised in YLH. 

Even before the Bill returned to the Other Place significant changes were made on a range of issues which include:-

  • removing the power to levy taxes or to establish new public authorities by SI, particularly important in terms of the new environmental enforcement body
  • Additional explanatory statements and reports to Parliament
  • The introduction of sunset clauses on some issues
  • Prevention of repeal or amendment to devolution clauses by Secondary Legislation
  • Clearer guidance for courts and tribunals in relation to future decision of the CJEU

And importantly – the removal of a clause that I’d never seen before in any legislation - that is the ability of a minister to amend the Bill itself by an SI.

So, despite the disappointment of the rejection of some Lords amendments, this legislation is better for the work undertaken by YLH. We have not exceeded our defined and limited role but have used that role to provide for greater consideration, further reflection and meaningful changes. As the NL Leader of the House has said previously, and reinforced by Government ministers in the Other Place – there is no legislation that doesn’t benefit from scrutiny by the House of Lords.

I often recall the expression that I first heard from My Noble Friend, Lord Rooker.  It’s not particularly flattering for us but, when it comes to legislation, YLH is in effect a sub Committee of the House of Commons. In passing any amendment all this House can do is ask the Chamber of elected MPs to consider or reconsider an issue.

And My Lords, we understand, that in a democracy that can be both an asset, and at times a frustration to Govt. The Canadians describe their Second House as the Chamber of Sober Second thought.  A further opportunity to think things through and fine tune legislation. Which makes the outbursts of pro-Brexit MPs raging against this role all the more ridiculous.

We’ve seen a fair bit of sabre rattling from some of the most enthusiastic of Brexiteers and supporters.  While inaccurate and misleading press headlines such as ‘enemies of the people’ and ‘saboteurs’ may add excitement and drama it does nothing to improve the quality of debate or journalistic integrity. And we hear calls for this House to be abolished, to be replaced with a committee of experts or indeed an elected House. 

Many hold honourable and genuine positions on different kinds of reform. But to base a case for fundamental change and abolition of the current system because of disagreement on a particular Bill is poor judgement.  And in response to proposals for an elected House or a House of experts – can I suggest that it might not be quite so compliant at accepting the Primacy of the elected house. So our role today is very clear.  This House does not and should not engage in Ping pong lightly or without thought.  The process of Ping Pong is not to challenge the elected House, but to provide an opportunity. 

Where matters are clearly and obviously unresolved in the House of Commons that is where they should be dealt with.  The reports since Friday of the disagreement between the Government and its own MPs is not one we should seek to intervene in, other than to provide an opportunity for MPs’ consideration - this can only be resolved by those elected to the House of Commons.

The Lords amendments 1 and 2 on a customs union have been returned to this House with in effect just one amendment – changing the term Customs Union – to Arrangement. This is unnecessary but I understand why Government has done so. Understand, because Government doesn’t yet know, even today, what it wants.  Currently has two work streams: 1) Customs Partnership and 2) Maximum facilitation.

When the Dutch Government is advising its manufacturing industry not to buy car components from the UK, because our future customs relationship with the EU is unclear we know there is a problem to be addressed urgently.  As a result of our amendment the Government is now committed to returning to Parliament within just over 4 months– by end of October this year – with a written statement of what it has done and how it will proceed.

My Lords – I don’t feel this is an issue that we should return to the Other Place.

-Ends-

Baroness Angela Smith of Basildon is Labour Leader in the House of Lords. She tweets @LadyBasildon

Published 18th June 2018

 

The role of the Lords in revising government legislation

Baroness Angela Smith speech at start of Lords 'parliamentary ping-pong' debate on the EU Withdrawal Bill

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Jeremy Beecham on a missed opportunity to properly tackle fraudulent whiplash claims

Lord Bowen, a distinguished former member of the Lords in the late 19th century, served as a Lord of Appeal. He was also a noted wit, and wrote:

The rain it raineth on the just

And also on the unjust fella

But chiefly on the just

Because the unjust has the just’s umbrella.

The current government, through its Civil Liability Bill, enthusiastically deprives the unjust claimant in whiplash cases of the umbrella of justice. But in doing so, effectively removes this also from the just claimant. A reversal of Lord Bowen’s scenario; and as the former Lord Chief Justice Lord Woolf asserts: “a proposal which involves a genuine victim of whiplash injuries receiving reduced damages in order to deter a dishonest claimant from bringing a claim”.

Nobody participating in today’s Report stage debate on the Bill wants to facilitate false claims. All of us support the need for any claim to be founded on objective medical evidence, and it is right for this to be a requirement for any out of court settlement.

The Bar Council however, suggests the legislation as drafted and the draft regulations published alongside it would see a massive reduction in compensation for the victims of whiplash injuries. Somewhere between 22% and 89%, coupled with the costs they will have to bear as these will be no longer recoverable from the defendants.

The current Judicial College guidelines for a four to six month duration of injury would drop from a range of £2150 to £3810 (the average being £2250) to £470; and for 13-15 months from £3810 to £6920 (the average being £191). And to make matter’s worse, these new arbitrary figures will relate only to the time factor and not, for example, the intensity of pain.

The Lords Justice Minister has declared that “the Lord Chancellor should set those tariffs (i.e. levels of damages) which will act to disincentivise unmeritorious claims to reduce costs for all motorists but which will, also continue to provide a proportionate amount of compensation where genuine injury is suffered”.

In other words, genuine claimants will recover less compensation than they would otherwise receive in order to deter the fraudsters. But why don’t insurers become more rigorous in assessing claims? And what happens when the fraudsters cotton on to the implication that they simply need to moderate their claims, so the insurers are content to pay up without proper examination?

There is disagreement about the extent and cost of fraudulent claims, which should certainly be resisted. Insurance companies, it has been suggested, have been too ready to settle dubious claims rather than risk the costs of defending them. But more importantly the insurance industry’s own estimates show the amount paid out on whiplash claims falling by 17% between 2007 and 2016, while premiums rose by an average of 71%. In addition, Premium Tax doubled to 12% between 2014 and 2017 while the cost of repair bills have risen by 33% since 2013.

If the real concern is the prevention of fraud, we should be looking at other measures. These could include heavier sentences and higher no claims bonuses. And above all, not punishing the genuine claimant for the misdemeanours of the fraudulent or the laxity of the insurance industry. 

Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords. He tweets @JeremyBeecham

Published 12th June 2018

Just unfair

Jeremy Beecham on a missed opportunity to properly tackle fraudulent whiplash claims

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