Table of contents
- 1. Bills announced in the Queen’s Speech 2021 but not yet introduced
- 2. Possible legislation and policy measures
- 2.1 Prison and probation bodies scrutiny
- 2.2 Parole system reform
- 2.3 Strategic Lawsuit Against Public Participation (SLAPP)
- 2.4 Powers of the High Court to order a coroner’s investigation into a death
- 2.5 Ministry of Justice digital services
- 2.6 Outdoor religious weddings
- 2.7 Closed material procedure in civil proceedings
- 2.8 Criminal legal aid
- 2.9 Terrorism in prisons
The Queen’s Speech sets out the Government’s legislative and policy proposals for the forthcoming parliamentary session. This article focuses on:
- bills announced in the May 2021 Queen’s Speech that have not yet been introduced; and
- policy announcements on justice that may be the subject of future legislation or policy measures.
1. Bills announced in the Queen’s Speech 2021 but not yet introduced
1.1 Draft Victims Bill
In the Queen’s Speech in May 2021, the Government said it would introduce a draft Victims Bill.
The bill’s purpose, as described by the Government, would be to give a statutory footing to the key rights contained within the Code of Practice for Victims of Crime (victims’ code). The victims’ code sets out the minimum standards organisations in England and Wales must provide to victims of crime. It requires that victims should be treated in a respectful, sensitive and professional manner, without discrimination. There are 12 key rights for victims in the code, including being:
- kept informed at key stages of their case;
- provided with regular updates on the progress of their case; and
- referred to organisations that support victims of crime.
The Government said in the May 2021 Queen’s Speech that the bill would have several benefits, including ensuring that victims were more consistently supported and could engage confidently with the criminal justice system.
In preparation for the bill, the Ministry of Justice launched a consultation on 9 December 2021 about improving victims’ experiences of the justice system. The Government described this consultation—which ran until 3 February 2022—as the “first significant step” towards the victims bill.
At the time of writing, the Government is analysing feedback received during the consultation. No definitive information about the bill’s provisions has yet been released.
In March 2022, Justice Minister Victoria Atkins said in response to a written question on rape victims that the bill would build on the victims’ code and “substantially improve victims’ experiences of the criminal justice system”. The minister said placing the code in legislation would “raise its profile and send a clear signal that the justice system must deliver for victims”.
2. Possible legislation and policy measures
2.1 Prison and probation bodies scrutiny
The Ministry of Justice published the Prisons Strategy White Paper in December 2021. This set out the Government’s short and long-term vision for the prison system in England and Wales.
As part of this vision, the Government said it intended to introduce legislation that would help to increase the scrutiny and accountability of prison and detention settings. It said the legislation would place in statute:
- The Prison and Probation Ombudsman (PPO) and Her Majesty’s Inspectorate of Prisons (HMI Prisons) and their respective remits, as was intended in the Prisons and Courts Bill in 2017. The Prisons and Courts Bill was a wide-ranging bill, which the Government introduced in February 2017, that would have placed PPO and HMI Prisons functions on a statutory footing. However, the bill fell with the dissolution of Parliament in May 2017. PPO duties include carrying out independent investigations into complaints and deaths in custody, as well as investigations into deaths of recently released prisoners. HMI Prisons is responsible for inspecting prisons, young offender institutions, court custody facilities and immigration removal centres, amongst others.
- The existing powers of the PPO, HMI Prisons and Her Majesty’s Inspectorate of Probation (HMI Probation) to access people, places and documents. HMI Probation is responsible for inspecting probation and youth offending services in England and Wales.
- HMI Probation’s responsibility for inspecting youth offending teams. Youth offending teams support young people in the criminal justice system in several ways, including supervising young people serving community sentences. The teams form part of local councils and are separate from police forces and the courts.
The bill would also:
- Combine the Independent Monitoring Boards (IMBs) and Lay Observers’ National Council into a single board under a single chair, both of which would be recognised in legislation. IMBs are responsible for monitoring prison and immigration detention facilities to ensure prisoners and detainees are treated fairly and humanely. The Lay Observers’ National Council is responsible for ‘lay observers’ who are independent, unpaid public appointees that provide oversight of how people detained in court cells and cellular vehicles are treated.
The Government sought feedback on its proposals via a consultation questionnaire contained within the white paper. This consultation closed for responses on 4 February 2022. The Government said it would respond to the consultation in April 2022. At the time of writing, the response had not been published.
2.2 Parole system reform
In October 2020, the Government launched a ‘root-and-branch review of the parole system’ in England and Wales. This stemmed from a Conservative Party 2019 manifesto commitment to increase public confidence in the parole system and focus on improving openness and transparency of the parole process.
The Government published its conclusions about the root-and-branch review on 30 March 2022, setting out proposals for the future of the parole system in England and Wales. This contained several key proposals, including the following:
- Making the ‘statutory release test’ used by the parole board to decide whether an offender is safe to be released on licence into the community clearer. The wording of the test has remained the same since its introduction by the Criminal Justice Act 1991. It requires that the parole board must not release an offender “unless satisfied that it is no longer necessary for the protection of the public that the person should be confined”. Following several recent court decisions that offered guidance on the interpretation of this test, the Government plans to amend the test to make it clearer what ‘public protection’ means in this regard.
- Legislating to introduce a new precautionary approach to the release of offenders who have committed the most serious crimes. This ‘top-tier’ cohort of offenders would be subject to a more precautionary approach to their release, including new ministerial oversight.
- Changing the legislation to increase the number of parole board members with law enforcement experience.
- Increasing victim participation in parole hearings.
The Lord Chancellor and Secretary of State for Justice, Dominic Raab, announced the conclusions of the root-and-branch review in the House of Commons on 30 March 2022. Mr Raab said the proposals would reinforce public safety and “ensure that those offenders who present the highest risk are reviewed more rigorously, with additional ministerial oversight. The Shadow Secretary of State for Justice, Steve Reed, welcomed the Lord Chancellor’s statement and expressed full support for the review.
2.3 Strategic Lawsuit Against Public Participation (SLAPP)
On 17 March 2022, the Government published an urgent call for evidence on strategic lawsuits against public participation (SLAPP). This form of litigation targets acts of public participation, usually journalism, academic research, and whistleblowing activity relating to matters of public importance (such as corruption). As described by the Government, a SLAPP aims to “harass, intimidate, and financially and psychologically exhaust an opponent via improper means, in order to discourage public criticism”.
The Government said SLAPP cases are often framed as legal cases, but instead represent an “abuse” of law and procedure because “their principal objective is stifling public debate, rather than the pursuit of a legal remedy”. The Government has expressed concern that SLAPP cases may be threatening free speech.
The Government’s urgent call for evidence is seeking views on potential reforms to this area of law. Reform proposals include introducing a legal definition of SLAPP cases. The Government is considering whether a statutory definition could help courts and regulators deal effectively with SLAPP cases that represent an abuse of process. Additionally, the Government is also considering whether there would be any benefit to giving courts the power to strike out a SLAPP application if a statutory definition of a SLAPP case in legislation was met.
Announcing the call for evidence in the House of Commons on 17 March 2022, the Lord Chancellor and Secretary of State for Justice said that the proposals aimed to “end the abuse in UK courts, and of UK laws, by corrupt oligarchs and Putin allies […] and to uphold our fundamental liberties of free speech and free press”. The use of SLAPP cases is not restricted to Russian oligarchs. However, a recent case described in the press as a SLAPP case involved legal proceedings brought against journalist and author Catherine Belton for her book Putin’s People: How the KGB Took Back Russia and Then Took on the West (April 2020).
The Shadow Secretary for Justice welcomed the call for evidence. However, he said it may be “too little, too late” and called on the Government to end corruption linked to the Russian state.
The call for evidence is scheduled to close on 19 May 2022. The date that the Government response to the call for evidence will be released has not been confirmed.
On 27 April 2022, the European Commission announced proposals to introduce an EU law against SLAPP cases. This would give courts the power to make an early decision to dismiss proceedings that were “manifestly unfounded”, amongst other things. The European Parliament and the Council of the EU would need to agree on the text of the proposals for it to become EU law.
2.4 Powers of the High Court to order a coroner’s investigation into a death
The Government has said it intends to expand High Court powers in circumstances where a coroner’s decision not to hold an inquest or investigation, or the conclusion of an inquest, is challenged.
At present, there are several routes available for individuals who wish to challenge a coroner’s decision. This includes making an application under section 13 of the Coroners Act 1988 with the consent of the Attorney General. Following a section 13 application, if the High Court is satisfied that a coroner has not held an investigation or inquest which ought to have been held, or a second investigation or inquest should be held (for example, because of fraud or the discovery of new evidence), the High Court has the power to order that a, or another, coroner’s investigation or inquest be held into a death. The High Court can also quash an inquest that has already taken place.
As noted in the House of Commons Justice Committee’s report The Coroner Service published on 27 May 2021, chief coroners have called on the Government to amend section 13 to give the High Court the power to allow the particulars of the ‘record of an inquest’ to be amended, instead of ordering a new inquest. The record of an inquest is a document used to record the outcome and findings of an inquest.
The previous Chief Coroner of England and Wales, His Honour Judge Mark Lucraft QC, said that allowing the record of an inquest to be amended would enable the High Court to record its own findings about the death instead of ordering a fresh inquest, if it is satisfied that this would be in the interests of justice. The committee recommended the Government consider adopting the Chief Coroner’s proposed amendment to section 13 with the caveat that the High Court should use this power only with the consent of the person who made the section 13 application.
The Government accepted this recommendation in its official response to the committee, published on 7 September 2021. In a House of Commons debate on the coroner service that took place on 28 October 2021, the Government said it would introduce this change when parliamentary time allowed.
2.5 Ministry of Justice digital services
The Government published the Ministry of Justice Digital Strategy 2025 on 8 April 2022. This sets out the Government’s ambition to change the user experience of justice by providing “simpler, faster and better services”. The strategy provides an explanation of several things that the Government says it will deliver, including:
- digital prison services that replace legacy systems and support rehabilitation;
- simplified and “more reliable” access to legal aid services;
- providing “straightforward and sensitive” access to compensation; and
- modernising and upgrading courts and tribunals services (such as automating the flow of data between justice agencies).
This policy paper represents the Government’s strategy for the next three years.
In a foreword to the strategy, Second Permanent Secretary at the Ministry of Justice and Chief Executive Officer at HM Prison and Probation Service Jo Farrar said that delivering the strategy would help the Ministry of Justice to “deliver its goals of reducing reoffending, providing swift access to justice and protecting the public”.
The Government has not confirmed if it will be legislative or policy reforms that implement the strategy.
2.6 Outdoor religious weddings
This announcement came on 15 March 2022, alongside the confirmation that outdoor civil weddings and outdoor civil partnerships would be permanently legalised from 6 April 2022. This replaced temporary legislation, introduced by the Government during the pandemic, that enabled couples to have their whole ceremony outside at approved premises.
The Law Commission is currently considering ways in which wedding laws in England and Wales could be improved and modernised. The Law Commission is expected to publish recommendations to the Government in July 2022. The Government said it would consider those recommendations and set out its plans accordingly.
2.7 Closed material procedure in civil proceedings
On 25 February 2021, the then Secretary of State for Justice, Robert Buckland, announced that a statutory review of the closed material procedure would be undertaken. The closed material procedure, provided for in the Justice and Security Act 2013, allows for the disclosure of sensitive material in civil proceedings. Section 13 of the act requires the Government to review the procedure as soon as reasonably practicable after five years from when it came into force.
As part of this statutory review, the Ministry of Justice held a call for evidence from 7 April to 30 June 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 the reviewer’s report should be laid before Parliament in advance of the summer recess in 2022.
2.8 Criminal legal aid
The Government commissioned an independent review of criminal legal aid in December 2020. This considered criminal legal aid provision in England and Wales. This was the second phase of the criminal legal aid review that was first announced by the Ministry of Justice in December 2018. Former judge Sir Christopher Bellamy chaired the review.
Sir Christopher’s final report of the criminal legal aid review, published by the Government on 15 December 2021, set out ways that criminal legal aid could be improved for providers and the public. The report contained 19 recommendations, including one recommendation that an independent advisory board be established to support policy development and ensure that the functioning of the legal aid system remains under review.
The Government published its response to Sir Christopher’s final report of the criminal legal aid review on 15 March 2022. Amongst other things, it supported the establishment of an advisory board. The Government’s response also contained a consultation on the Government’s proposals to reform criminal legal aid. This set out proposals to reform criminal legal aid and uplift fees in line with the Government’s objectives to:
- use legal aid to increase the efficiency of the criminal justice system;
- deliver fair pay for work done; and
- increase the sustainability and stability of the criminal defence professions.
The consultation is scheduled to close on 7 June 2022.
2.9 Terrorism in prisons
In January 2021, the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, announced that he would review terrorism in prisons in England and Wales. The independent reviewer said he was particularly interested in looking at: acts within the prison estate which amount to criminal offences (such as encouraging terrorism); the status and influence of convicted terrorist prisoners and their connection to prison gangs; and responsibilities for ensuring that admissible evidence of terrorist offences or terrorism-related activity in prison is secured.
The Government published the independent reviewer’s report on terrorism in prisons on 27 April 2022. This contained 14 recommendations in total, including that prison governors should be made formally accountable for reducing the risk of terrorism from prisoners, and that specific policies on terrorist risk should be developed for governors. It also recommended that the Government should consider whether to amend terrorism legislation to ensure that the offence in section 13 of the Terrorism Act 2000 (wearing or publishing images of clothing or articles linked to a terrorist organisation) and section 1 of the Terrorism Act 2006 (encouraging terrorism) could apply if committed by a person in prison.
In the Government’s official response to the independent reviewer’s terrorism in prisons report, it accepted the majority of the recommendations. Amongst other things, the Government said it would consider amending the terrorism legislation to ensure that those offences were fully applicable in prison settings. It also agreed to develop national guidance for governors on how to reduce terrorist risk in prisons.