By any measure the outcome of yesterday’s election was a significant point in the UK’s politics. The returning of the Conservative government with a chunky majority means, first and foremost, that the UK will leave the EU in a little over six weeks, on 31 January 2020. In advance of a new Queen’s Speech, likely to be next week, are there already indications of what policies to expect from the new administration in the area of civil justice?
The first point to make is that the Conservative manifesto was quite light here. Perhaps its only specific promise was to legislate “to tackle the vexatious claims that undermine our Armed Forces”, which is likely to be by way of amending the scope of what has been called “Labour’s Human Rights Act”. The size of the new government’s majority should mean that this would pass through the Commons relatively easily.
The Act was also referred to in a widely drafted passage of the manifesto which talked of examining “the relationship between the Government, Parliament and the courts, the functioning of the Royal Prerogative”, of “access to justice for ordinary people” and of updating the Human Rights Act “to ensure there is a proper balance between the rights of individuals, our vital national security and effective government”. It is proposed that these topics will be taken forward by a new Constitution, Democracy and Rights Commission which is to be set up in 2020. Its terms of reference should be worth studying closely, but it is not thought at this stage that the reference to “access to justice for ordinary people” is likely to mean any significant widening in the availability of legal aid for civil claims. Experience would tend to suggest that, unless the new Commission is prioritised, any outputs would be unlikely to emerge until well into 2021.
The existing programme of whiplash reform does look likely to be completed by the new government, although there is uncertainty about when this will happen. Previously, Ministers had repeatedly talked of April 2020 implementation. Even before the election, however, this began to look increasingly unlikely (but hadn’t been expressly ruled out) given the delay in formulating the necessary procedural rules. There should be clarity on the scheduling of this reform programme in the next few weeks.
Like the whiplash reforms, extending fixed recoverable costs to civil claims valued at up to £100,000 does not need primary legislation and should also be expected to be taken forward. Whether this is done at the same time as whiplash, thus leading to a ‘big bang’ of civil reforms on the same day, as had been the case in 2013, remains to be seen. It may simply depend on whether there is sufficient resource within the Ministry of Justice to manage and deliver both projects at the same time.
Legislation paving the way for online courts (and associated procedural rules) should be expected to reappear in due course. This is an important project with notable support across the senior judiciary. Significant resources were allocated to court reform, including online service delivery, in the last spending round but both the Courts and Tribunals (Online Procedure) Bill and the Prison and Courts Bill were lost due to the 2019 and 2017 elections respectively.
The need to “get Brexit done” will be the top priority for the new government but we would nevertheless hope for further information about the topics above over the next few weeks.
Director of Policy & Government Affairs