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Shami Chakrabarti on a crucial moment in the passage of the government’s Courts and Tribunals Bill

In the constitutional system that we love and serve, and which is still admired the world over, legislators who are accountable, make our laws and judges who are independent, apply them. This “little mouse of a bill” (as one peer has called it), which we have been encouraged to wave through without a squeak, seeks to turn that system on its head. It sneaks through changes that will see an unconstitutional double delegation; of legislative powers to unaccountable judges, sitting on Procedural Rules Committees; and of judicial powers to non-independent courts and tribunal staff.

It is vital that Clause 3 of the Bill, which delegates judicial functions to ‘authorised staff’ is understood in the context of a wider court reform agenda and the austerity measures that sit behind this. ‘Efficiencies’ generated through the proposed reforms will not only arise through the reduction of the court estate but through savings on judicial salaries.

Though, there is some argument for the delegation of the most straightforward decisions to ‘authorised staff’, there is an ocean between purely procedural decisions and those that could have the effect of depriving an individual of their freedom. Without limits on who can be authorised and what powers can be delegated, these measures could change the essential nature of our judicial system. Such potentially fundamental aspects of reform require external scrutiny by parliamentarians. They should not be decided exclusively by the Procedure Rules Committees, made up predominantly of senior judges themselves.

The government has gone some way towards addressing the real concerns raised at Lords Committee stage, with an amendment prohibiting this in relation to decisions affecting people’s homes and liberty. But this very welcome development nonetheless highlights the hidden dangers in an apparently benign bill. While Labour intends to warmly welcome this movement from Ministers at this week’s Report stage, we will be pressing for further oversight and accountability.

Another [?] ‘concession’, placing an obligation on the relevant rules committee to consider a right to judicial reconsideration for delegated functions, does much less to satisfy our concerns. In fact, it replicates the fundamental problem with the effect of this Bill. By placing the obligation on the rules committee, it delegates a legislative duty to the same unaccountable body. Consequently, we will push ahead with our amendment, supported by both the Law Society and the Bar Council, proposing a statutory right to judicial reconsideration, for any party to a decision by an authorised person.

We will also call for further parliamentary scrutiny and accountability through the affirmative resolution procedure, of the regulations under Clause 3. This relates to sweeping powers to make rules stipulating which judicial functions may be delegated and to whom, along with an authorised person’s requisite qualifications or experience. As Crossbench peer Lord Pannick observed at Committee Stage, the powers that the Secretary of State or Lord Chancellor is being given under this clause includes the ability to make “consequential provision”. Despite a promise to give further consideration to the issue, Ministers have not tabled an amendment on this, only offering hollow assurance that the power will be limited to changes to statutory instruments.

In line with this, we have also tabled an amendment which stipulates minimum legal qualifications for authorised persons: to be a qualified solicitor, barrister or chartered legal executive with more than three years’ experience post-qualification – as recommended by the Law Society. That is a lower threshold than is required for pupil supervisors or for solicitors to supervise an office.

We are also seeking a firm commitment on the face of the Bill to keep under review, judicial functions and the impact of this legislation.

The safeguards that Labour are calling for are not unreasonable – they are minimal if we consider that provisions in this ‘uncontroversial’ Bill have the potential to profoundly impact on our justice system. The double delegation of powers that the government is encouraging is a slippery constitutional slope that we can and must resist.

Baroness Shami Chakrabarti is Shadow Attorney General

Published 15th October 2018

Delegated dangers

Shami Chakrabarti on a crucial moment in the passage of the government’s Courts and Tribunals Bill

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Glenys Thornton on the dire state of the government’s new mental capacity legislation

The House of Lords today continues to scrutinise the Committee stage of the Mental Capacity (Amendment) Bill – legislation that seeks to amend the Mental Capacity Act to replace a framework known as the Deprivation of Liberty safeguards (DoLs). A framework that impacts on those lacking the capacity to consent to caring arrangements, whether in hospital, a care home or another setting.

Three months on from Second Reading – with a summer parliamentary recess along the way – the government is now telling us that this Bill was a simple improvement based on the Law Commission’s work of two years and its draft Bill. Not so.

We have overcome the problem of producing amendments in the middle of a long recess for a Committee session on our first day back. We have also spent the past few weeks discussing concerns with dozens of stakeholders, who themselves have been struggling to be heard because of the government’s rush to get the Bill through the Lords. No doubt apprehensive about the serious and considered scrutiny it would face. 

Either way, a consensus is forming that the Bill as it stands is “not fit for purpose” – as one group of carers and residents in care homes, told us. The concerns that we expressed at Second Reading are now writ large. Moreover, the message from local government, health practitioners, social workers, charities and families is that the power that is to be given to care home managers to prepare cases for mental capacity assessment is dangerous – lacking both capacity and capability.

There are virtually no safeguards for the person being assessed, no guarantee that their family or people close to them will be involved, and no automatic right to have an advocate. Plus the care home manager will decide on their “best interests”. We know it takes years for a social worker to qualify to do mental capacity assessments. But the government are proposing managers will get half a day of “familiarisation”. No wonder, some care home groups are expressing an unwillingness to take on that task.

The check in the system is that local authorities (with whom the legal responsibility for deprivation of liberty sits) will conduct a tick box exercise on the assessment – without seeing the person concerned. One of two things are likely to happen at that point. As the body which could end up in costly legal proceedings, the council will return the forms demanding more evidence, potentially creating a bureaucratic delay. Or they will let the assessment through and some injustices will take place, followed inevitably by court cases.

Then there is also a potential conflict of interest in care homes, where full occupancy means financial sustainability. Why would they look for alternative solutions for someone who may or may not qualify in terms of their mental capacity? 

Among the many problems with the Bill are that fact that it contains nothing about ascertaining the wishes or feelings of the cared for person. The consultation about whether they need to be deprived of their liberty must put them at its heart. That means advocacy must be made available right from the start of the assessment. The legislation as it stands only allows access to an AMCP (approved mental capacity professional) if they object to the process. That is both inadequate and fails to recognise that some people will be unable to object. 

In the Bill’s current form, it falls short of Article 5 of the European Convention on Human Rights – regarding individual liberty and security. Indeed, what Ministers have yet to properly explain is why, when the Law Commission draft of the Bill did contain all the safeguards, the government has dropped them.

The many amendments that have been tabled to the Bill will attempt to test its many flaws. And there will be a push for enough time before Report stage to seek remedies and make the legislation serve the interests of our most vulnerable fellow citizens.

Baroness Glenys Thornton is Shadow Health Minister in the House of Lords. She tweets @glenysthornton 

Published 15th October 2018

Care inequality

Glenys Thornton on the dire state of the government’s new mental capacity legislation

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Maggie Jones on Labour’s plans to tackle the illegal wildlife trade

This week, I attended the international conference on the illegal wildlife trade hosted by the UK government in London. The conference was attended by representatives from more than 80 countries alongside businesses, conservation organisations and civil society leaders, who are working together to combat wildlife crime around the world.

The illegal wildlife trade is a major threat to the survival of some of the world’s most threatened species of animals and plants. This trade has grown rapidly over the past decade, and has now reached unprecedented levels. Tigers, elephants, pangolins and rhinos killed respectively for their skin, tusks, scales and bone now face a very real prospect of extinction from the wild. Illegal logging meanwhile, causes huge economic and environmental damage.

The impact of such illegal trade is not just confined to wildlife. Serious, organised and worth over an estimated £15bn each year, it has far-reaching and devastating consequences across the world. It is used by criminal networks involved in drugs, weapons and people smuggling, who launder money, fund conflict and thrive on corruption. It overwhelmingly affects the poorest and more marginalised communities, many of whom are reliant upon access to natural resources for their livelihoods. And it impedes economic development.

That is why it is critical that governments around the world unite to tackle the illegal trade, by addressing corruption, improving law enforcement and giving greater support to those upon whom it has the most negative impact.

In the last year alone, more than 100 rangers were killed on the front line of the fight against poachers. As part of the international community, the UK must do everything possible to support their vital work and to strengthening the related legal frameworks.

For wildlife crime to be stamped out, those communities whose lives are inextricably linked economically, socially, and culturally with endangered species need to benefit from them in a meaningful way. At present, many people who become involved in the illegal trade do so because other opportunities are so few and far between. Poaching is extremely lucrative and when the rewards are so high, the risks can seem worthwhile. They must therefore, be empowered to see the economic advantages of ending such practices.

The tourism sector offers a unique opportunity to transform the relationship between wildlife and local communities. At the conference, it was inspiring to hear about the partnership between the government and tourism sector in Botswana; and how the industry is leading the fight against wildlife crime.

If communities have a stake in persevering wildlife, they will be its best protectors. We must do all we can to support alternative, sustainable livelihoods. But the UK must also play its part in reducing demand for wildlife products, which fuels the illegal trade in so many species.

The government’s long awaited Ivory Bill is currently making its way through the House of Lords. This legislation seeks to ban the trade of almost all items containing elephant ivory, with limited exemptions for musical instruments and antiques of significant historical, cultural or artistic value. Along with others in the Labour Peers Group, I am working to ensure the legislation is extended to other ivory bearing species as soon as possible.

An incoming Labour government would end the import of wild animal trophies from species that are classified by the international Union for the Conservation of Nature as critically endangered. We would also extend this ban to species listed under the Convention on International Trade in Endangered Species of Wild Fauna and Flora.

Baroness Maggie Jones of Whitchurch is Shadow Defra Minister in the House of Lords. She tweets @WhitchurchGirl

Published 12th October 2018

Wild cards

Maggie Jones on Labour’s plans to tackle the illegal wildlife trade

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