Minority government leaves justice reforms in doubt

Lawyers believe the 2017 election result could mean the chances of far-reaching reforms to the justice sector are now remote. The government lost its majority in the snap election, and is now looking to collaborate with Northern Ireland’s Democratic Unionist Party (DUP) on an issue by issue basis. As a result, experts are predicting that reforms to the justice system such as the Prisons and Courts Bill could be watered down, as a weakened government is likely to avoid controversial measures in the Queens Speech. Lawyers believe the proposed merger of the Serious Fraud Office (SFO) into the National Crime Agency (NCA) could be the first initiative to be scrapped as the Prime Minister no longer has enough authority to force it through.

The Conservatives and DUP have signalled that any agreement will be of a confidence and supply nature and not a fullblown coalition. Geoff Payne, from 25 Bedford Row, believes that means so long as the DUP supports the government on confidence votes and on its budget, it will be free to take a different approach on other legislative reforms. Therefore, Payne said: ‘Without a Parliamentary majority, the Conservative Party will have to negotiate and do deals on every piece of legislation it proposes. A handful of backbench Conservatives or DUP MPs will wield huge influence and effectively be in a position to kill those reforms.’

Mark Trafford QC, from 23 Essex Street, said the appointment of a new Justice Secretary will inevitably slow the process down. Although Trafford notes: ‘He will have three previous Justice Secretaries around the cabinet table with him and will, one assumes, call on their experience to get up and running quickly.’

Prisons and Courts Bill

The Prisons and Courts Bill was abandoned in April, when the last Parliament was dissolved. It was not comprised in the proposed ‘wash up’—a process by which outstanding Bills are pushed through ahead of dissolution—as it had yet to pass through the House of Lords. It was designed to modernise the courts system, make courts more efficient, and deliver swifter justice for victims. Measures included:

  • increased use of technology to allow more cases to be progressed online and through video and telephone conferencing
  • the reform of prisons
  • new judicial powers to prevent perpetrators from cross-examining their victims
  • changes to low-value personal injury claims

Following the election, Transform Justice Director Penelope Gibbs said: ‘The jury is out on whether all or parts of the Prisons and Courts Bill will be reintroduced. Labour had concerns about the extension of video hearings and online convictions, and the introduction of online pleas and phone hearings. I hope they will put pressure on the government to drop these court reform proposals.’

However, Kevin Dent from 5 St Andrew's Hill argues that the Bill had not been directly opposed by other parties prior to the election, and the opposition was planning to consider amendments to the Bill in due course. He said: ‘Unless the approach of the Labour Party was to change dramatically post-election, the main provisions of this somewhat sprawling Bill are likely to overcome criticisms from various interest groups affected by the proposals.’

Mark Trafford QC adds: ‘There is support for the changes to whiplash compensation. It should be one of the less controversial bills that might get back into the Queen's Speech.’

Merger of the SFO and NCA

The merger of the SFO into the NCA was proposed in the 2017 Conservative Manifesto. The government argued the initiative would: ‘Strengthen Britain’s response to white-collar crime...improving intelligence sharing and bolstering the investigation of serious fraud, money laundering and financial crime.’ However, the plan was met with objection from lawyers and the City, many of whom wrote an open letter to the Prime Minister outlining their concerns which included that it:

  • pre-empted the outcome of the Cabinet Office’s review into the proposal
  • risked a decline in the effectiveness of enforcement and significant damage to the UK’s reputation abroad • could also lead to perceptions of political interference in economic crime investigations.

Geoff Payne believes the merger is now looking very vulnerable. Payne said: ‘It was very much a pet project of the Prime Minister and with her authority now gravely diminished, that proposal has to be in serious jeopardy.’ Payne adds: ‘In these new times where every reform has to be negotiated, I cannot see that it is going to be at the top of the agenda. I would have thought that the SFO can breathe easy for now.’

Kevin Dent notes that while new Justice Secretary David Lidington has yet to make a comment on the issue, the government will be aware that previous proposals in for a merger in 2011 faltered following resistance from both inside and outside government. He said: ‘Any attempted merger would be in the face of a body of evidence from recent cases that the SFO is an increasingly combative and successful independent prosecuting authority.’

Kevin has built up a wealth of experience over 20 years in fraud and serious crime, and is often instructed as leading counsel. The core of Kevin’s practice is fraud, revenue evasion, money laundering, and healthcare frauds.  Kevin is often instructed in multi-million pound fraud cases involving large volumes of complex material calling upon Kevin’s keen eye for detail.

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