“The scrutiny of an active, engaged and committed legal community encourages accountability and better decision-making.”
As the two-year countdown to Brexit began to run from 29 March, it is easy to see that the nature of the UK’s relationship with Europe and the wider world will continue to dominate public debate for some time to come. However, not all eyes will be on Brussels. As part of the process, we have been promised that the Queen’s Speech in May will include a Great Repeal Bill to provide the legislative groundwork to break the link between the UK and EU law. It is expected to provide a statutory basis for the eventual repeal of the European Communities Act 1972 and, most likely, a mechanism for the unknitting of domestic standards from any EU legacy.
Many Legal Action
regulars are already playing an active part in that conversation. As Louise Christian has pointed out (November 2016 Legal Action
9), the process need not be entirely defensive and we should all be alive to any possibility to secure greater protection for individual rights within the new legal settlement. However, as a panoply of parliamentary committees – from the Joint Committee on Human Rights to the House of Commons Women and Equalities Committee – have recently recognised, the scrutiny of the Brexit process and the Great Repeal Bill will require some great minds to ensure parliament does not reshape the legal landscape in a way that is deeply damaging, whether inadvertently or by design.
While we are busy working to remake our constitutional settlement without diminishing the protection of individual rights, we should not be distracted from the everyday business of government, which continues to march on. Last month saw the second reading of the Prisons and Courts Bill (see page 5
of this issue). The bill provides the foundation for the reform of the civil and criminal justice systems in the UK, including through provision for the online court, which, it is estimated, will lead to 60,000 more pre-trial hearings in the magistrates’ court, 17,000 more contested bail hearings, and 30,000 more pre-trial hearings in the Crown Court being done remotely each year. It also includes provisions for the reform of prisons and recovery in personal injury cases.
Beyond the Prisons and Courts Bill, consultation on change for the justice system and legal practice continues apace. Lord Justice Jackson will report in the summer on areas thought suitable for the extension of fixed recoverable costs (initial indications given during the public seminars are that the application of this regime to legally aided cases, at least in respect of judicial review, would not be appropriate). The Ministry of Justice (MoJ) has finally agreed to conduct its promised review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). There is little information available on the proposed internal review. However, it will begin in May 2017, with a report to the House of Commons Justice Select Committee. Commentators have fairly set little stall by the government’s plans for post-legislative scrutiny, following an earlier internal review of the devastating impact of employment tribunal fees in which the MoJ identified limited need for reform (see page 8 of this issue). However, silence from the legal aid community on the injustices of the post-LASPO system is unlikely.
Scrutiny of the Brexit process will require some great minds to ensure parliament does not reshape the legal landscape in a way that is deeply damaging.
The range of reforms headed for Westminster and relevant to the practice of legal aid lawyers is telling. From the Law Commission’s proposals to replace the Deprivation of Liberty Safeguards published in March (see page 4
of this issue), to the draft Public Service Ombudsman Bill, the shape of the law that affects our clients’ interests continues to shift.
Big battles fought and lost, as well as consultation fatigue, make carving time out of a heavy workload to participate in discussions on policy and law reform all the more trying; but the experience of the people working on the front lines of the justice system for those increasingly excluded from it should not be lost from government thinking on the future of the law. The scrutiny of an active, engaged and committed legal community encourages accountability and better decision-making; its absence would be for the worse.
While the big-ticket items of Brexit and the Great Repeal Bill will require commitment, time and energy, whatever our new constitutional settlement may look like, the rule of law and a functioning, fair and effective justice system must sit at its heart. It would be a real constitutional tragedy if, alongside the unpicking of the legacy of our EU membership, we absolutely diminish both the protection of the individual by the law and the opportunities for people to access justice in our domestic courts.
In shaping the Great Repeal Bill and what lies beyond, legal aid lawyers should be at the heart of each of these crucial conversations, working positively and proactively to protect and promote the interests of the clients we serve.