The Queen’s Speech sets out the Government’s legislative and policy proposals for the forthcoming parliamentary session. This article focuses on:
- bills being carried over from the 2019–21 parliamentary session;
- bills announced in the December 2019 Queen’s Speech that have not yet been introduced; and
- policy announcements on justice that may be the subject of future legislation.
What bills are being carried over to the next parliamentary session?
Policing, Crime, Sentencing and Courts Bill
The Policing, Crime, Sentencing and Courts Bill was the subject of a carry-over motion in the House of Commons on 16 March 2021. This will allow the bill to continue its progress through both Houses in the new parliamentary session. The bill will start its Commons committee stage in the new parliamentary session.
The bill provisions are wide ranging, covering both justice and home affairs matters. On justice, proposals relate to the sentencing and release framework in England and Wales. The explanatory notes to the Police, Crime, Sentencing and Courts Bill set out what the provisions would do, including:
- Increasing the minimum sentences for certain offences. This includes making a whole life order the starting point for those convicted of child murder. A whole life order sees an offender spend the rest of their life in prison without ever becoming eligible for release. The starting point is used by judges as a guide when determining what the appropriate sentence would be.
- Introducing provisions for the management of offenders, including new targeted stop and search powers for the police for knife crime offenders.
- Enabling certain custodial sentences of more than four years to become ‘spent’ after a certain period of time. Spent convictions are effectively discounted and do not always need to be disclosed, for example when applying for certain jobs.
- Procedural changes in courts and tribunals.
The Conservative Party 2019 manifesto contained several commitments relating to sentencing and release in England and Wales, including to “introduce tougher sentencing for the worst offenders”, and “creating tougher community sentences”.
- House of Commons Library, Police, Crime, Sentencing and Courts Bill 2019–21: Background, 12 March 2021
What bills were announced in the December 2019 Queen’s Speech and not introduced?
Reform of victims’ law
In the Queen’s Speech December 2019, the Government committed to introducing legislation to support victims of crime and their families.
In April 2021, a written statement by Victoria Atkins, the Parliamentary Under Secretary of State for Safeguarding, announced that a consultation on the victims’ law would be launched during summer 2021.
Previously, the Government held a public consultation on improving the code of practice for victims of crime from 5 March to 28 May 2020. The victims’ code is a statutory document that sets out the minimum level of service victims of crime should receive during the criminal justice process. The Government published an updated version of the victims’ code and supporting documents in April 2021.
In the Government’s response to the consultation on improving the victims’ code, it said that the new code would help pave the way for a new victims’ law.
During topical questions in the House of Commons on 22 September 2020, Robert Buckland, the Secretary of State for Justice, said that the Government would legislate for a new victims’ law to enshrine the rights for victims that were contained within the victims’ code and elsewhere.
What government plans may be subject to future legislation?
This section considers government announcements that may be the subject of future legislation or policy measures.
Review of judicial review
The Government is considering reforming the judicial review process. The Conservative Party 2019 manifesto committed to a broad review of the UK constitution. As part of this commitment, the Conservative Party said it wanted to ensure that judicial review “is not abused to conduct politics by another means or to create needless delays”.
The Ministry of Justice launched a judicial review reform consultation in March 2021. The consultation ran from 18 March to 29 April 2021. The Government said it will publish its response “in due course” and set out the reforms it intends to implement.
Proposals included in the consultation include:
- Legislating to clarify the effect of statutory ouster clauses. An ouster clause in primary legislation means that a decision or use of a specific power is non-justiciable. This means that courts are unable to judicially review a decision or use of that power.
- Legislating to introduce suspended quashing orders to be presumed or required. This would see a public body’s decision/exercise of power quashed if, after a certain period of time, certain conditions set down by the court have not been met.
- Making further procedural reforms.
The Government took many of the proposals in the consultation from the independent review of administrative law panel’s final report. This independent panel, chaired by Lord Faulks (Non-affiliated), conducted the independent review of administrative law during 2020. The panel considered whether the correct balance was being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government, amongst other things. The panel’s final report included several recommendations, including two substantive law changes and various procedural changes.
The Justice Secretary, Robert Buckland, gave an update on the independent review of administrative law in the House of Commons on 18 March 2021. In reference to the consultation, Mr Buckland said that there were two recommendations that the Government wanted to implement quickly. The first was to legislate to remove a type of judicial review known as the ‘cart judicial review’ (named after a supreme court case of that name). This would ensure that decisions of the Upper Tribunal and the High Court are on an equal footing. The second was the introduction of suspended quashing orders.
Whilst some supported the Government’s proposals, concerns were also raised. The Shadow Spokesperson for Justice, Lord Falconer of Thoroton, raised several of these in a House of Lords debate on the independent review of administrative law update, for example on the review of use of ouster clauses.
- House of Lords Library, Judicial Review: Time for Change?, 18 January 2021
Royal commission for criminal justice
In a House of Commons debate about the court backlog on 2 February 2021, Chris Philp, the Parliamentary Under Secretary for the Home Office, was asked about the Government’s progress on establishing the royal commission for criminal justice. Mr Philp advised that the Lord Chancellor continued to work towards its establishment and announcements were expected in due course.
Plans to establish a royal commission were first announced in the Conservative Party 2019 manifesto. A royal commission is a type of committee appointed for a specific investigatory or advisory purpose.
In an earlier House of Lords debate on the royal commission for criminal justice on 9 November 2020, Baroness Scott of Bybrook, a government whip, said that the Government had prioritised responding to the immediate impact of the Covid-19 pandemic on the criminal justice system. She added there would be an update in the House in due course.
At the time of writing, the Government has not published the royal commission’s terms of reference.
- House of Lords Library, Royal Commissions: Making a Comeback?, 23 April 2020
Problem solving courts
In September 2020, the Government published the white paper entitled: A Smarter Approach to Sentencing. This set out reform proposals of the sentencing and release framework in England and Wales. Several proposals are included in the Police, Crime, Sentencing and Courts Bill.
The white paper also included other proposals that are not contained in that bill. For example, the Government proposed to pilot ‘problem solving courts’. Pilots would take place in up to five locations and focus on offenders with substance misuse issues, domestic violence offences and female offenders.
Problem solving courts would see offenders undergo treatment interventions and wider support services, as well as regular court reviews with judicial oversight. The white paper stated that offenders would also undergo more intense probation supervision, and be subjected to a system of incentives and sanctions to encourage compliance.
In response to a written question in the House of Commons about courts in December 2020, the Government said that it would introduce the necessary legislative provisions to enable these pilots to commence when parliamentary time allows.
Review of closed material procedure in civil proceedings
The closed material procedure is provided for in the Justice and Security Act 2013 (the 2013 act). It allows for the disclosure of sensitive material in civil proceedings. Section 13 of the 2013 act requires the Government to review the procedure as soon as reasonably practicable, after five years from when it came into force.
The Ministry of Justice issued a call for evidence on 7 April 2021 as part of the review. This will close on 26 May 2021.
The reviewer is Sir Duncan Ouseley, a retired High Court (Queen’s Bench) division judge. Government guidance on the review of closed material procedure states that Sir Duncan will examine data obtained during the call for evidence and publish a final report in summer 2021. The report will be laid before Parliament. The Government is expecting the whole process to conclude in 2021.
Prison escort custody officers and virtual remand hearings
In response to a parliamentary question on remote hearings in February 2021, Chris Philp, the Parliamentary Under Secretary for the Home Office, said that legislation would be introduced to enable prison escort custody officers (Pecs) to better support virtual remand hearings. A remand hearing is where a court determines whether a suspect should be kept in custody or released pending further court appearances. Pecs officers are responsible for moving prisoners between prison, police stations and courts. They are also responsible for prisoners’ care and security whilst in court.
In March 2020, HM Courts and Tribunals Service set out how telephone and video hearings would be used during the Covid-19 pandemic. Amongst other things, it confirmed that remand hearings would be undertaken by video unless the interests of justice could not be met.
In December 2020, the Lord Chancellor Robert Buckland gave evidence to the House of Commons Justice Committee. Mr Buckland said that there were legislative constraints that meant only police officers could exercise the custodial functions required to carry out virtual remand hearings. This is because Pecs officers do not currently have custodial responsibility for defendants in police stations under the current legislative framework.
The Government has confirmed that it is looking to bring forward appropriate legislation when parliamentary time allows.
Judicial mandatory retirement age
In response to a written question on 22 March 2021 about the retirement age of magistrates, the Government said that legislation to increase the mandatory retirement age to 75 would be introduced when parliamentary time allowed. This legislation would also include transitional provisions to enable retired magistrates who are younger than the new mandatory retirement age to apply to return to the bench.
This followed the Government response to the consultation on the judicial mandatory retirement age on 8 March 2021. The consultation sought views on proposals to raise the mandatory retirement age for judicial office holders from 70 to either 72 or 75, and to allow magistrates’ appointments to be extended before the mandatory retirement age.
The Government said that it believed raising the mandatory retirement age would be a “proportionate and effective way to ensure we are able to recruit and retain judicial office holders to meet the demands of our courts and tribunals”.
Currently, the Judicial Pensions and Retirement Act 1993 provides a mandatory retirement age of 70 for most judges and non-legal members in England and Wales, Scotland, and Northern Ireland, as well as coroners in Northern Ireland. A mandatory retirement age of 70 years was subsequently set for magistrates and coroners in England and Wales in the Courts Act 2003 and the Coroners and Justice Act 2009 respectively.
Criminal legal aid review
The Government launched an independent review of criminal legal aid in January 2021. The review is looking at the entire criminal legal aid system, including: the services being provided; how it is procured; and how it is paid for. Former judge Sir Christopher Bellamy is chairing the review.
On 29 March 2021, the Government launched a call for evidence as part of the independent review. This is scheduled to close on 7 May 2021.
A written statement made by Robert Buckland, the Secretary of State for Justice, on 14 January 2021 said that the Government would publish the independent review’s final report alongside the Government’s response, before the end of 2021.
The independent review is the second phase of the Criminal Legal Aid Review that was first announced by the Ministry of Justice in December 2018.
Cover image by Sang Hyun Cho from Pixabay.