Access to justice and the general election
Well, we are in the middle of a general election campaign that no one predicted. It seems a combination of a commanding lead in the opinion polls and a brighter than expected economic outlook meant Theresa May could not resist the temptation to go to the country to try to secure her own mandate. LAG believes the election campaign raises opportunities to get commitments from the political parties on legal and access to justice policies.
Due to the election, and much to the relief of personal injury lawyers, the Prisons and Courts Bill had to be abandoned. This had included provisions that would have reformed the rules around compensation for whiplash in road traffic accidents and other personal injury cases.
Many argued that the government, in its proposals, had caved in to the insurance industry lobby and that the proposed reforms would have led to much injustice. They would also have had a devastating impact on high street solicitors’ firms that rely on this business.
With the bill failing to make what is called the ‘wash-up’ of legislation that is quickly passed on to the statute book before a general election, important reforms were lost around prisons and the protection of domestic violence victims from having to face cross-examination by their abusers.
The bill also included provisions that would have enabled the planned digital transformation of the courts and tribunals. Such are the pressures on parliamentary time due to Brexit that it is unclear whether, if re-elected, the Conservatives will put the bill into the Queen’s speech for the new parliament.
As already stated, we would argue that the immediate economic outlook was one of the reasons the PM called the general election now. The International Monetary Fund has predicted that the UK economy will grow by a healthy two per cent this year. The remainers’ dire predictions for the economy in the EU referendum campaign have not come to pass, at least not yet.
So far, the Conservative government has got away with revealing very little of the detail of its Brexit plans. However, holding this line during the coming weeks will be challenging in the heat of the election campaign in which one of the main dividing lines will be hard v soft Brexit and the risks to the economy of not getting a deal on access to the single market.
The Great Repeal Bill has been described in a paper by the House of Commons Library as ‘potentially one of the largest legislative projects ever undertaken in the UK’. With the bill, the Conservatives plan to sweep all EU legislation on to the UK statute book while repealing the European Communities Act 1972.
The parliamentarians LAG spoke to all expressed doubts over whether the undertaking is possible within the two-year deadline imposed by article 50. And this was before the general election was called, which will delay this process by at least two months. It seems likely that the new government will be seeking interim measures to facilitate untangling our relationship with the EU.
Of concern to many, including LAG, are the extensive powers the Conservatives want to be granted to create secondary legislation under the proposed Great Repeal Bill. The white paper on the bill is very vague on what protections there will be against the abuse of these powers. Assurances need to be sought during the election campaign around the proper parliamentary scrutiny of these measures and a strict sunset clause should be attached to any additional powers.
Immigration and the status of EU citizens in the UK, meanwhile, is something else that should be ventilated in the coming weeks. A question mark cannot be allowed to hang over the status of EU nationals.
Another casualty of the prime minister’s unexpected decision to go to the country was the post-legislative review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The government had started the process, but this will now be put on hold.
LAG believes the combined impact of LASPO and austerity policies is choking off access to justice for many hundreds of thousands of people. The Ministry of Justice’s (MoJ’s) own most recent research indicates that around a third of the population experience civil legal problems that may lead to a legal solution through a court or tribunal hearing.
The MoJ acknowledges that research shows some groups of people, ‘particularly those vulnerable to social exclusion’, are more likely to experience a legal problem.
In its report on the civil legal aid reforms two years ago, the House of Commons Justice Select Committee concluded that LASPO has ‘harmed access to justice’ for some litigants (page 75, para 50) and that the MoJ should take steps to remedy the problems it had identified. LAG wholeheartedly agrees with these sentiments.
We must therefore put pressure on all of the political parties to reinstate the post-legislative review of LASPO after the election.