Protocol 15 of the European Convention on Human Rights and Fundamental Freedoms – reforming the European Court on Human rights

There is widespread agreement that the European Convention on Human Rights in 1953 was an extremely important development arising out of the horrors of the Second World War. The Convention sought to identify the fundamental human rights which should be protected. The European Court of Human Rights was created to enable both states and individuals to bring cases in which alleged breaches of the Convention could be challenged and adjudicated.

Over the years, the number of states who are members of the Council of Europe has expanded. As more countries have come within the jurisdiction of the court, the numbers of cases coming to the court have increased. This has led to serious problems of delay.

A decade ago, the Court itself made suggestions to improve the ways in which the court works. These were supported in 2012 in the so-called Brighton Declaration. On 1 August 2021, the final results of the work which derived from the Brighton Declaration came into effect, as the last of the 47 countries who are members of the Council ratified Protocol 15.

The primary focus of the Protocol is to devise ways to divert cases from the court which could be dealt with elsewhere. Protocol 15 starts by including the principles of ‘subsidiarity’ and ‘margin of appreciation’ into the text of the Convention.

‘Subsidiarity’ implies that the primary responsibility for ensuring compliance with the Convention should rest with individual states – the Convention and the Court should be subsidiary to the laws and procedures of member states.

The ‘margin of appreciation’ is a doctrine developed by the Court itself which accepts that individual states are on the whole best placed to decide questions relating to Human Rights. The role of the Court is to review whether decisions taken by national authorities are compatible with the Convention, having due regard to the State’s margin of appreciation.

The hope is that these changes in the text will encourage individual states to do more, thus reducing pressure on the European Court.

Second, there have been a couple of changes to the rules relating to the admissability of cases which can be brought to the Court. First, any case must henceforth be brought within 4 months from the decision appealed against, rather than the 6 month limit that existed before. In addition, there are detailed rules designed to enable the court to rule as inadmissable cases which have no merit or which have already been decided.

A third change relates to the appointment of judges to the European Court. Until the changes were made, judges were required to stand down when they reached the age of 70. This rule has been replaced by a rule required judges to be appointed before they are 65. This is designed to enable them to complete a full 9 year term – the standard for such appoiontments. It is hoped that this will reduce the turnover of judges and enable the court to retain judicial expertise for longer.

Will these changes make a difference? My own hunch is that they may have a marginal impact but that problems of delay in getting cases before the court will remain.

Further detail is available at https://www.gov.uk/government/news/european-convention-on-human-rights-protocol-comes-into-force. The full text of the amended convention is at https://www.echr.coe.int/Pages/home.aspx?p=basictexts&c where you can click on the link to Protocol 15 and the explanatory memorandum for more information.

Developing policy on Alternative Dispute Resolution

Many people acknowledge that if disputes can be resolved in ways that do not involve a hearing in court, this can be more effective and flexible than litigation. But use of alternative dispute resolution (ADR) has been constrained by the fact that, for it to take place, both parties need to accept that this would be the preferable way forward. There has been a reluctance to requires parties to use ADR.

In July 2021, the Civil Justice Council published an important report in which it argued that it would not be unlawful for the use of ADR to be made mandatory.

In August, 2021, the Ministry of Justice published a Call for Evidence seeking information about the use of ADR to resolve family, business and other civil disputes away from the courts. The paper makes clear that, in a post-Covid world, it is important to rethink some of the ways in which dispute resolution and how they should be changed to improve access to justice, reduce cost, and deliver fairer outcomes.

Experience from a number of other countries suggests that an element of compulsion in the use of ADR is important in achieving broader acceptance of the use of ADR.

It is unlikely that detailed policy initiatives will be announced for some time. But it seems to me that policy makers and the senior judiciary are working together to create a more postitive context within which ADR will become a central feature of the dispute resolution landscape.

The Civil Justice Council’s Report is at https://www.judiciary.uk/announcements/mandatory-alternative-dispute-resolution-is-lawful-and-should-be-encouraged/.

The Ministry of Justice’s Call for Evidence is at https://www.gov.uk/government/news/views-sought-on-dispute-resolution-vision. Submissions are sought by the end of October 2021.

Launch of the Unified Probation Service

One experiment in use of the private sector to deliver important public services came to an end on 28 June 2021 with the Government’s announcement of its Unified Probation Service.

This undoes a reform introduced less than a decade ago by the then Lord Chancellor, Chris Grayling, who decided that while a public sector probation service would be retained for looking after the most serious offenders, private and charitable organisations would be responsible for looking after other offenders.

The specific aims of the Grayling reforms were to reduce the amount of re-offending and promote rehabilitation of offenders. These aims were sensible. Most would argue in favour of them.

What was heavily criticised from the outset by many with an interest in the criminal justice system was that the policy would be delivered primarily by private organisations opearting under contracts with Government. In the event, the critics were proved right. Operation of the contracts did not work in practice. It neither cut costs nor reduced reoffending.

The Government announced some time ago that contracts with private providers would be ended early. The latest announcement marks the completion of the process. The new service will continue to engage with some third sector/charitable organisations. But the new service in effect re-creates the National Probation Service which existed before the Grayling changes were made.

Getting probation right is always a challenge for Government. Some who think that the principal role of the criminal justice system is to punish may regard probation as soft option. The reality, however, is that it is clearly in the public interest that serious efforts are made to turn around the lives of offenders so that they can play a full part in society. Probation officers are on the front line in the delivery of these objectives. It is right that they should be seen as delivering a key public service.

I commented on the original Grayling proposals in this blog on 13 August 2013.

Details of the Government’s latest announcement are at https://www.gov.uk/government/news/bigger-better-probation-service-to-cut-crime

Tribunals Journal – latest edition

The latest edition of the Tribunals Journal has just been published. It contains a varied collection of articles – all concise, informative and easy to read!

Among the highlights are thoughts from the new President of Tribunals, Sir Keith Lindholm on his ambitions for the development of the tribunals service, and reflections from Prof Mike Adler on the Leggatt Review of Tribunals and its impact on the shaping of the current system. Two articles consider different aspects on the training of the judiciary – a reflexion by Christa Christensen on her years as Director of Training, and an important article by Barry Clarke on innovations in induction training.

Alison Rowley writes an important piece on the challenge of dealing with judicial burnout – recently highlighted in the Judicial Attitudes Survey, noted in this blog. The new Equal Treatment Benchbook – also noted in this blog – is introduced in an accessible language summary prepared by Alex Durance. See also the piece by Rebecca Howard on advice in the book on the treatment of vulnerable men.

Paul Monserrat writes on the work of the Diversity and Inclusion Team in the Judicial Office. And there is a tribute to Judge Esme Martins – one of the first black women to hold judicial office.

The full edition is available at https://sway.office.com/GDVBBdcCIDfXZZPp?ref=Link&loc=play

I declare an interest, as a member of the Editorial Committee.

The Queen’s speech 2021: proposals affecting the English Legal System

In this note I set out a brief summary of those Bills which are most likely to impact upon the English Legal System and the topics I consider in my book on the subject.

Top of the list is the Police, Crime, Sentencing and Courts Bill. This Bill is not new, but is one being carried over from the last Parliament.

It has already attracted a great deal of public attention with widespread protests against its proposals for changing the law on the powers of the police to control demonstrations.

But it is a Bill which goes much wider than that and contains a range of important proposals which will affect reforms to the ways of working in courts and tribunals, on bail and on sentencing.

A Draft Victims Bill will also be published containing proposals to:
● Put into law the rights that were set out in the recent Victims’ Code which are designed to improve victims of crime experience of the criminal justice systeem; and
● Set expectations for the standard and availability of victim support for victims of domestic abuse and sexual violence.

Being a draft Bill, these ideas will be the subject of consultation before a definitive Bill is presented to Parliament. These measures are unlikely to become law for a couple of years.

A Judicial Review Bill is proposed. The issue of judicial review has been on the Government’s agenda for a long time. It was the subject of a review by a team led by Lord Faulks which suggested the possibility of some detailed changes to the current law (in particularly creating a power for the courts to suspend a quashing order) but which thought the main principles of the law should remain unchanged. The Government has launched a consultation on whether further questions need to be addressed, in particular whether and if so how the courts could be prevented from reviewing particular categories of issue. The outcome of this consultation is not yet available. I assume that the Bill which has been announced will not be published until the current consultation is completed.

A Dissolution and Calling of Parliament Bill is designed to repeal the Fixed-Terms Parliaments Act 2011. In addition, the briefing on the Bill states that it will revive the prerogative powers relating to the dissolution of Parliament, and the calling of a new Parliament. (This provokes an interesting question whether prerogative powers – which are the residual powers of the Crown still exercised by the Executive branch of Government – retain this character once they have been provided for in an Act of Parliament.)

Furthermore, it is said that the Bill will reaffirm ‘the long-standing position that the courts may not block a dissolution (and hence a general election)’ through a non-justiciability clause.

Both the Judicial Review Bill and the Dissolution and Calling of Parliament Bill will be the subject of intense critical debate, particularly by constitutional and public lawyers as well as others interested in the operation of Government.

Finally, mention may be made of the Electoral Integrity Bill which make changes to the ways in which elections are run. In addition to the widely publicised proposal that voters should be required to bring some form of photo ID with them to the polling station, the Bill will also require election messages sent on social media should contain an ‘imprint’ showing who has published the message; improving access to polling stations for the disabled; and removing limits on the ability of UK citizens who live overseas (expats) to vote in UK elections.

The speech and the background briefing are available at https://www.gov.uk/government/publications/queens-speech-2021-background-briefing-notes

End of the 2019-2021 Parliamentary Session: legislative and other outcomes

It feels as though the 2019-2021 Parliamentary session, which started immediately after the election of the Boris Johnson Government and has just come to an end has gone on for ever. The dramas of Brexit were anticipated; those of the Covid-19 pandemic were certainly not. This note looks at some of the key outcomes from this session, in particular those that impact on my book, Introduction to the English Legal System, the 15th edition of which will be published soon.

As I have written before, despite all the attention and time that needed to be spent on dealing with the pandemic, four important pieces of legislation managed to get through the Parliamentary process.

The Divorce, Dissolution and Separation Act 2020 and the Sentencing Act passed in 2020. Both have been considered in these notes and are included in the new edition of the Book.

Two other important pieces of legislation completed their parliamentary journey in the dying days of the 2019-2021 session.

First is the Domestic Abuse Act 2021 which should have a major impact on how domestic abuse is dealt with by the police, social authorities and the courts. I have written about this legislation before (see 15 March 2019, 21 May 2020, and 23 July 2020). A Press Release summarizing the key features of the new Act – which has taken a long time to reach the statute book – is at https://www.gov.uk/government/news/landmark-domestic-abuse-bill-receives-royalassent .

The other Act which should be noted here is the Counter-Terrorism and Sentencing Act 2021, about which I have also written before (on 22 July 2020). This is designed to strengthen provisions relating to the detention and monitoring of those convicted of terrorist offences. See the press release at https://www.gov.uk/government/news/longer-jail-terms-and-stricter-monitoring-as-new-terror-laws-gain-royal-assent for a brief overview of this Act.

This Act needs to be kept distinct from the quite separate Police, Crime, Sentencing and Courts Bill. This was not introduced into Parliament until March 2021. It has already attracted considerable public attention, with demonstrations against the Bill being held in many cities throughout the country.

The Bill picks up proposals in the Smarter Approach to Sentencing White Paper, about which I wrote here on 9 October 2020. But it also reflects earlier Conservative Party manifesto pledges. An extremely helpful background note, setting out both the origins of the Bill and it principal features can be found in the House of Commons Library Research Briefing at https://commonslibrary.parliament.uk/research-briefings/cbp-9158/ which was published in March 2021.

Media headlines are focused on issues relating to powers to limit the right to protest peacefully, but there is a great deal more in this wide-ranging Bill. This Bill will be brought back to Parliament once the new 2021-2022 session gets under way.

Also worth mentioning in this context is the Parliamentary Constituencies Act 2020. This provides for major changes to the boundaries of parliamentary constituencies, to try to ensure that there is approximately the same number of voters in each constituency. This is an idea that has been around for some time – originally linked with proposals to reduce the number of MPs in the House of Commons. This aspect of the changes has been abandoned. The work of redrawing the boundaries will be undertaken by the Boundary Commissions – one each for England, Wales, Scotland and Northern Ireland. Final reports are due by 1 July 2023. See further https://www.gov.uk/government/news/new-law-passed-will-make-voting-in-uk-general-election-fairer

What the legislative landscape for the next 12 months will look like will become clearer after the Queen’s Speech, which will be delivered on 11 May 2021. This will be the subject of a separate note.

Independent Human Rights Act Review: an update

The review of the Human Rights Act, chaired by Sir Peter Gross, has completed the first stage of its work, namely the receipt of written evidence, addressing the issues raised for consultation by the review team. Over 150 papers were received in total/

The submissions have recently been made publicly available.

The review is in the process of holding a number of public roadshows – to be hosted by six different law schools around the country. These are scheduled to take place during May 2021.

For links to the submissions and information about the roadshows go to https://www.gov.uk/guidance/independent-human-rights-act-review

Criminal Injuries Compensation scheme: updated guidance

Government guidance on the Criminal Injuries Compensation scheme was updated in April 2021.

The guidance in available at https://www.gov.uk/guidance/criminal-injuries-compensation-a-guide

Whiplash reform programme: implementation

Way back in March 2019 I noted the enactment of the Civil Liability Act 2018. One of its principal objectives was to introduce a new way of dealing with claims for ‘whiplash injuries’ suffered when a car is hit from behind, causing those in the front car to suffer whiplash. It had been planned that the new scheme would come into operation in April 2020. The Government has now announced that it will commence on 31 May 2021.

The Whiplash Reform Programme provides, among other things that:

• A fixed tariff of compensation will determine the personal injury damages claimants will receive for whiplash injuries. Until now, most whiplash claims are determined by negotiation rather than by a ruling from a judge. The tariff – set by the Lord Chancellor – will in future decide the issue. The levels of compensation will be reviewed by officials every three years.
• There will be a ban on settling whiplash claims without medical evidence. It was argued that, in the past, insurance companies paid out on small claims which had been made without any supporting medical evidence because it was not financially worth their while to resist them. The effect of paying out on unmeritorious claims was to increase the costs of motor insurance, to the detriment of motorists who did not make unwarranted claims.
• A new online official Injury Claim Service will be established which will enable claimants to source medical reports to ensure claims are supported by medical evidence before settlement.
• The Small Claims Track (SCT) limit for Road Traffic Accident related Personal Injury claims will be raised from £1,000 to £5,000. This means that the majority of such claims (which are for sums under £5,000) will no longer be subject to fast track rules, where the recovery of legal costs operates on the ‘loser pays’ principle but will be allocated to the SCT, where parties are responsible for paying their own legal costs.

It is hoped that the introduction of the Official Injury Claim Service which has been designed to provide claimants with a user-friendly digital system, supported by guidance, will enable all claimants, particularly those without legal representation, to make and settle their own claim pre-court. It is also hoped that the new system will stop unmeritorious claims from being made.

Since these changes are expected to result in insurance companies being able to reduce their overhead expenditure on motor insurance, insurers are required to provide to demonstrate that they have passed any savings on to customers.

Further information on the new scheme is at https://www.gov.uk/government/publications/whiplash-reform-programme-information-and-faq

Misperceptions of ‘deregulation’

Another excellent thought piece from Stephen Mayson, highlighting the challenge of ensuring that professional regulators can drive effective change and innovation in the delivery of legal services.

StephenMayson

Last month, Boston Consulting Group published a report that claimed to assess the effects of deregulating legal services in England & Wales, as driven by the Legal Services Act 2007. The analysis and conclusions are, to put it at its best, disappointing. I am grateful to have been spared the need to offer a detailed review, thanks to this informed critique of the report by Alison Hook.

In the interests of full disclosure, I should note that the report’s authors based some of their work on my independent review (Legal Services Reform: Regulation Beyond the Echo Chambers, published last year). However, having done so, their report could encourage others to take my principal conclusion – that further reform is needed – and, contrary to my intention, use it to amplify the echo within the chambers of my title.

These, therefore, are my summary observations:

First, I have…

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