John Fawcett has joined the firm as Partner
Further to the election on the 7th May, we now have a Conservative majority and all Conservative cabinet. For the second time in 440 years, we have a non-lawyer serving as Lord Chancellor. Michael Gove, who has a reputation for confrontation with professionals and legal institutions, has followed Chris Grayling in the role. This will have important repercussions on the legal system, in so far as policies outlined in the Conservative manifesto are concerned and in relation to continuing changes to the legal system.
Under the previous Government there have been many changes that have had a profound and irreversible change on the legal landscape. Most notably, changes to eligibility for legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, including changes to the availability of legal aid in many categories of law. Many people who were previously entitled to such representation are now not entitled to legal aid and this has increased the number of individuals representing themselves at Court. This, in turn, has led to inevitable listing delays, since Judges and Magistrates must ensure that each lay person understands the procedure and application in order that access to justice is afforded. This takes up Court time, resulting in cases taking longer and some cases having to be adjourned.
The Court delays have been compounded by cuts in the Court budget, a reduction in the number of Courts and a reduction of Court staff. Legal aid availability has also led to difficult funding decisions and in some case closures of Law Centres and Citizens Advice Bureaux. Legal aid rates have also been reduced, meaning that fewer firms now offer legal aid and Clients have to travel further distances for advice.
Criminal legal aid, in particular, has seen two significant reductions in legal aid rates and the gradual move towards best value tendering, which will see the further reduction in the number of criminal law firms and an increased number of mergers. For those needing criminal advice, choice of Solicitor will be severely restricted. Only a limited number of contracts will be issued to firms under the term ‘Duty Provider Work’.
There are predicted to be further dramatic changes to the criminal justice system, including changes to the right for the Defendant to opt for trial by jury, more use of evidence from cameras worn by police, police led prosecutions, semi custodial sentences, centralization of the prison system with large modern buildings, payment by results and flexible Court hours. The Conservatives emphasise their Victims’ Code and have vowed to “strengthen victims’ rights further, with a new Victims’ Law that will enshrine key rights for victims, including the right to make a personal statement and have it read in court before sentencing – and before the Parole Board decides on a prisoner’s release”.
The changes to the legal system, in particular legal aid, mean it is increasingly becoming more difficult for absent parents to afford and understand the family law system. This is impacting upon their ability to make applications for Child Arrangement Orders, despite the increasing emphasis on shared care.
The previously lengthy procedure for taking children into the care of local authorities has been reduced to 26 weeks in order to reduce delay for the benefit of the children concerned. Mr Gove himself argued, as Education Secretary, that more children should be taken into care more quickly. The Conservative manifesto states that a Conservative government would prioritise protecting women and girls from violence, including securing the future of specialist Female Genital Mutilation and forced marriage units.
Under the previous Government, a more unified and more streamlined Court system was established with the advent of the central Family Court, moves towards digital Courtrooms, remote hearings, increased technology and tighter case management. There may be changes to contracts requiring “greater efficiency” from those who deliver prisoners to courts. The emphasis is on reducing delay, increased flexibility and a system more responsive to Court users. It is hoped that the recent significant increases in Court fees and tribunal fees will assist in funding the changes.
One particularly noticeable recent change is the increased importance of Alternative Dispute Resolution, including the use of compulsory referral to ACAS and family mediation, the increased use and availability of arbitration and the use of collaborative law. The combined effect will hopefully be to reduce the pressure on the Court system, as well as the reduction in acrimonious and lengthy disputes between individuals and businesses.
The Conservative Government seek to opt out of European control of large parts of the justice system, for example pre Lisbon treaty police and criminal justice measures in Europe, EU control over Immigration and Asylum policy (with reduced legal aid availability for immigration matters). At the same time International and European co-operation is emphasised so far as terrorism, crime and immigration matters are concerned. The Conservatives pledge to ensure that individuals are not extradited for doing things that are not illegal in the UK. The Conservative Manifesto has also promised a referendum on the UK’s membership of the European Union. This would obviously have far-reaching effects throughout the UK.
The manifesto has promised radical reform of Human Rights laws, in particular the Human Rights Act 1998 and the role of the European Court of Human Rights. The Government looks to introduce a British Bill of Rights, with our “Supreme Court being the ultimate arbiter of human rights matters in the UK”. The Law Society of England and Wales has stated that it opposes the repeal of the Human Rights Act as “it is a fundamental safeguard of many of our basic rights and freedoms”. The emphasis is on the State rather than the individual and restrictions on judicial review and emphasis on increased Governmental access to data support this shift.
The Conservative Party states that it aims to achieve full employment in Britain, with the highest employment rate of any major economy, by backing “British businesses: cutting red tape, lowering taxes on jobs and enterprise, getting young people into work, boosting apprenticeships”. The policies outlined will affect both employers and employees.
The Conservatives state that they aim to eradicate exclusivity in zero hours contracts by making exclusivity clauses in zero hours contracts unenforceable. The Conservative Party has promised to support the national minimum wage and implement a real-term increase in the next Parliament, accepting the recommendations of the Low Pay Commission of an increase to £6.70 by autumn 2015, with a view to an increase to over £8 an hour by the end of 2020. An increase in the entitlement to free childcare to 30 hours for all three and four year olds of working parents has been planned.
The Conservatives will make volunteering for three days a year a workplace entitlement for people working in large companies and the public sector. Gender equality reforms requiring companies with more than 250 employees to publish the difference between the average pay of their male and female employees will be implemented.
The Conservative manifesto sets out various policies that will have an effect on private client law. The tax-free personal allowance will increase to £12,500 from the first Budget after the General Election and the threshold for the 40% higher income tax rate band will rise to £50,000. The income tax personal allowance will automatically rise in line with the national minimum wage.
A new Help to Buy ISA will be introduced, providing a government bonus to each person who has saved into a Help to Buy ISA at the point they use their savings to purchase their first home.
The Conservatives promised not to raise VAT, National Insurance contributions (NICs) or income tax. An increase in the effective inheritance tax threshold for married couples and civil partners to £1 million with a new transferable main residence allowance of £175,000 is planned. An increase in the annual tax charges paid by those with non-domiciled status is also planned.
As with all manifesto promises, the policies outlined may be markedly different by the time the legislation has passed through Parliament. Whilst many of the above policies were cornerstones of the election campaign, they may be amended, delayed or discarded altogether during the term of the Government. A clearer idea of what policies will be prioritised by the incoming Government and the form that they will take will be apparent once the Queen’s Speech has been laid before Parliament on 27 May 2015.
Article written by Benedict Smith and Lynn Sutton-Bunnell.
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