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Jim Gallagher, member of Nuffield College, Oxford and former devolution adviser to the UK government, looks at how the result of the general election might impact the Brexit negotiations, Northern Ireland, and English votes for English laws (EVEL).

Before it’s here, it’s on Lexis®PSL. Click here to take a free trial.

As there is no single party with an overall majority, what happens now and what are the important milestones to look out for?

Most importantly, somebody has to see if they can form a government, which means sustaining confidence of the House of Commons. In this respect, Theresa May remains Prime Minister for now, and it is right that for the time being she continues in that role to provide the service of government.

We may or may not see some kind of political agreement with the Democratic Unionist Party (DUP), to secure confidence. The formal moment at which we find out if that has been achieved is the Queen’s Speech, which is generally seen as the test of whether a new government enjoys the confidence of the Commons.

Even without that we could still see the formation of a minority government, but only with a vote of confidence. If it loses that vote then it is no longer a government.

How does support for a minority government on the basis of ‘confidence and supply’ work?

Confidence and supply, as you would expect, includes two elements—the first being that the government can sustain the confidence of the Commons. The second—the supply, is strictly speaking its spending proposals, which Parliament has to review every year. Traditionally this is tested by a government’s ability to get its budget through Parliament and, where this is not the case, the government will almost inevitably fall.

What happens if the Conservatives trigger a party leadership election? Under what circumstances could there be another general election?

Strictly speaking and whether through election or resignation, the Prime Minister remains Prime Minister until we have a new one, though—as mentioned—Theresa May’s government still requires the confidence of Parliament.

To change the leadership of the Conservative Party, it is up to the party how long to take for this process, it would seem unwise to wait too long, but they are an organisation with their own internal rules. The uncertainty and ticking clock of Brexit negotiations further complicates this whole situation.

The calling of another election, meanwhile, is complicated by the Fixed-term Parliaments Act 2011 (FTPA 2011), but if no government can sustain the confidence of Parliament then a new election will be called, or indeed—under the FTPA 2011—if two-thirds majority of MPs support dissolution. Again, Brexit is a ticking clock in the background to all this.

How would EVEL work in the context of a confidence and supply arrangement between a minority Conservative government and the DUP? What’s the impact on the new EVEL process?

For now, EVEL has less impact than one might think. EVEL affects English-only legislation and provides English MPs with an effective veto on legislation that impacts England. There is a footnote to this in that EVEL may also be applied to certain aspects of the Budget, for example income tax rates, which also affect England only.

The Conservative Party does retain an overall majority in England, and so EVEL will in fact simplify things for the Conservative party. If there were a government that did not have a majority in England, then EVEL becomes very significant indeed.

What impact could this have on the Brexit timetable?

All this has a potentially very significant impact on the Brexit timetable. Article 50 TEU sets a strict timetable for leaving the EU two years from notification—Mrs May, having given the notification and then called an election, might thus become a victim of an unforced error. The logic of holding an election and then giving the notification afterwards, right now looks stronger.

The Brexit deal itself needs to be ratified from the EU end and is, by necessity, a lengthy process. We are already talking about allowing six months for that process, minus the two months already used for the general election, minus any further delays for a further Conservative leadership campaign, or another general election, or the time necessitated by securing cross-party UK consensus on Brexit.

We are looking at a very tight negotiation indeed, the timetable looks increasingly shaky and with potentially serious consequences.

Does a confidence and supply arrangement between the minority government and the DUP put the re-establishment of the Northern Ireland assembly, and UK neutrality in the Northern Ireland peace process, in jeopardy?

The traditional approach of UK governments, certainly since the Good Friday Agreement and even the John Major Conservative government, has been to stand even-handedly between the two communities in Northern Ireland.

There is a risk that if one of those sides—ie the DUP—has its foot on the throat of the UK government, it could seek concessions that could be destabilising for the Northern Ireland peace process.

On the other hand, if nobody in Northern Ireland objects to the demands the DUP make of the UK government—say, an increase in public spending—then it is possible that the arrangement could yet work. This will need to be assessed once the terms of the arrangement are known.

Interviewed by Julian Sayarer. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Before it’s here, it’s on Lexis®PSL. Click here to take a free trial.

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By Steve Hynes

Secretary of State for Justice, Liz Truss, recently announced that the government would soon confirm the time-table for the post legislative review of the Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPO). There has been growing pressure on ministers for some time to announce this (see “Back to the drawing board”, 166 NLJ 7698 13 May 2016, p 6). The Legal Action Group (LAG) hopes that the review will be used as an opportunity by the still relatively new team at the top of the Ministry of Justice (MoJ) to look at funding the provision of early advice in civil legal cases.

In recent months there has been a flurry of damming reports on the civil legal aid cuts. Perhaps the most notable of these has been the Amnesty report published in October. Amnesty is better know for its work in exposing injustice abroad, but expressed deep concerns in its report, The impact of legal aid cuts, about the situation in England and Wales saying the LASPO Act cuts to legal aid had “stripped away a vital element of support for a fair and just legal system”.

Staggering drop in legal aid

Most recently, the Labour Party has published its interim report on access to justice in which it noted the “staggering drop” of nearly 50% in the number of legal aid cases after the implementation of the changes to the scope of legal aid in April 2013 (see “Bach for good”, Jon Robins, 166 NLJ 7726, p7). Adding its voice to the growing clamour for the government to look again at the cuts it imposed on civil legal aid, last month LAG published Justice in freefall. This report, by Lucy Logan Green and James Sandbach at LAG, brings together statistical and other evidence on the impact of the changes to legal aid and argues that the civil justice system is in freefall due to the lack of availability of legal advice for members of the public who cannot afford to pay for it.

In its most startling finding, our report shows that basic advice funded by legal aid has now dropped by 75% since the implementation of the LASPO cuts in April 2013 and is continuing to fall. This type of legal aid, know as legal help, bore the brunt of the cuts. People with common civil legal problems, such as difficulties in claiming the benefits they are entitled to, coping with debts or, with problems at work, have nowhere to turn since these cases were cut from the scope of the legal aid scheme. LAG’s report also reveals that even for legal problems still covered by civil legal aid there have been drastic reductions in the take-up of the scheme. This is mainly caused, we believe, by the reduction in solicitors and advice centres available to take on cases.

The crisis in the provision of legal aid services is illustrated by the lack of availability of expert advice on housing law. Legal aid to assist people who are in danger of losing their home due to rent arrears or other reasons is still available, but statistics from the MoJ show that over the last year the number of housing cases has reduced by 18%. Research published by the Law Society in August this year demonstrated that in some areas of the country, for example Suffolk and Shropshire, there were no solicitors or advice agencies providing legal aid in housing cases. Also, in around a third of areas only one housing legal aid supplier was available.

Brutal impact

Overall, due to LASPO, there has been a 25% decline in the number of solicitors undertaking civil legal aid work. The cuts to civil legal aid have had an even more brutal impact on the Not for Profit (NfP) advice centres. As discussed in our report they lost 77% of their income from legal aid due to the cuts to legal help. Research published by the MoJ shows that these and other budget cuts have led to an over 50% reduction in the number of centres in recent years (source: Survey of not for profit legal advice providers in England and Wales, MoJ (2015)).

Legal aid was conspicuous by its absence from the government’s paper Transforming Our Justice System which was published in September last year. This paper promises a £1bn cash injection to modernise the courts and tribunals system. In launching the document Liz Truss stated that the government wants to create “a justice system that works for everyone”. The problem is that most members of the public with a civil legal problem will never get anywhere near a court or tribunal without the sort of initial advice legal help paid for. LAG would suggest that, if the government is serious about access to justice it needs to put back capacity into the system so that these people can get early advice on their legal problems. Otherwise a situation will continue in which only a few people get help when they get to court and the many more thousands with civil legal problems are ignored by policy makers.

Steve Hynes is the director of Legal Action Group (SHynes@lag.org.uk; www.lag.org.uk)

This article was originally published on New Law Journal.

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On Tuesday 8 November 2016, Halsbury’s Law Exchange (HLE) hosted a panel discussion on the urgent topic of: “Women in Prison: is the justice system fit for purpose?” In the lead up to the panel discussion, Felicity Gerry QC and Lyndon Harris co-authored a discussion paper on this vital question, available to read in full here.

The evening commenced with a brief introduction from Felicity Gerry GC who welcomed the panel and briefly summarised her paper. The nail bar explanation? We must get used to prosecuting fewer women and sending fewer women to prison because they do not actually belong there and don’t deserve the level of punishment.  The tricky part is what to do about it.

Joshua Rozenberg QC chaired the panel discussion and begun the evening by introducing the distinguished panellists:

The Rt Hon. the Lord Beith, House of Lords
John Cooper QC, 25 Bedford Row
Jenny Earle, Prison Reform Trust
Baroness Kennedy of The Shaws, House of Lords, Chair of Justice
Vicky Pryce, Economist and Business Consultant

The discussion was wide-ranging, highly informed and we have written an article to capture, as best possible, the ideas, thoughts and arguments of the evening (access here). In addition, there was a high level of social media engagement throughout the course of the evening, and we have captured some of the Twitter discussion, which is available in here (links to a PDF).

 Five Key Points

It is important for readers to look at Felicity Gerry QC and Lyndon Harris’s paper, as that contains a set of technical and precise recommendations for reform. Outlined below, are six key takeaways that arose from the panel discussion and the following question and answer session.

  1. A whole systems approach

Jenny Earle posited the need for a ‘whole systems’ approach to tackling the need to reform the treatment of women by the criminal justice system. Following the success seen in recent years relating to youth custody, there was a call to establish a body which brings together: government, non-government, police, lawyers, policy experts, related stakeholders and many more. A ‘Woman’s Justice Board’, which brings together experts to consider this central issue in an evidence-based manner.

The answer to the challenge of women in prison does not just rely on change in the penal and court systems. Policing is another critical aspect. More specifically, the current overuse of cautions is having damaging consequences and reforming this heavy handed approach is a key part in answering the challenge.

  1. Changing the media narrative

The first question of the evening identified a lack of political will as a key issue. While Lord Beith had mentioned earlier in the evening that political will is slowly improving, he also argued that the underlying issue was the popular media narrative, combined with a political leadership scared of the power of popular media. The open question and challenge to everyone was how to change the media narrative on prisons.

  1. An economic argument

Lord Beith talked about how arguments surrounding cost-effectiveness can bring together people from different political spectrums – like in Texas, where Republicans and Democrats agreed on prison reform to stop the ‘extreme waste of tax-payer’s money’. Further, he recalled a discussion with Finnish politicians where he asked how they were so steadily reducing the prison population. Their answer was simply that the finance ministry would not give them any more money.

  1. Re-educating the judiciary on sentencing

John Cooper QC argued the need for the judiciary to not be ‘straitjacketed’ by sentencing guidelines. He argued for a judiciary not over ‘guidelined’, but rather empowered to deliver a more bespoke, mitigated and diverse approach to sentencing.

  1. Learning from other jurisdictions

Scotland has been driving powerful penal reforms and Baroness Kennedy said there is a lot we can learn from that experience. For certain, using the proceeds of the sale of prison real estate to fund the establishment and maintenance of smaller therapeutic centres has been a welcome and helpful development. This has shifted the focus from punishment to reform and rehabilitation.

Further, Jenny Earle informed the audience that in Scotland there is a presumption against short custodial sentences. It was argued that adopting this approach would go a long way to diminishing the current levels of women in prison and the concomitant vicious cycle.

Further Resources
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Read the full policy paper here.

Felicity Gerry QC and Lyndon Harris, in partnership with Halsbury’s Law Exchange, have spent the last three years researching sentencing and treatment of female offenders within the criminal justice system to determine whether there is a true and principled case for reform.

In 2014, they published the report Women in prison: is the penal system fit for purpose? which aimed to help further discussion to develop workable penal law and policy suggestions.

Two years on, and despite a number of significant reports from leading charities such as The Howard League, Women In Prison and the Prison Reform Trust, which have similarly aimed to bring about change in the way we treat women throughout the criminal justice system, it is clear that both the justice and the penal systems are still failing to address the multiple and complex needs posed by women.

This discussion paper therefore aims to bring these important issues once again to the forefront and to strengthen the other voices also trying to pave the way for true reform in this area. It sets out the key facts emanating from the research, identifies keys areas where reforms could be made, and makes suggestions on how these changes might be implemented.

Building on the 2014 report, the authors concentrate on three key areas:

  1. Training of judges and other actors in the criminal justice system;
  2. The criminalisation of women subject to exploitation, abuse and coercion; and
  3. Sentencing

Amongst the proposals, the paper notes judicial training on gender issues, particularly the content and existence of the Bangkok Rules, does not appear to be available in the published judicial college course materials. It highlights the issue of diversity in the judiciary and therefore suggests a test could be designed to ensure key players in the criminal justice system have knowledge of the UN Rules and domestic research, including key facts and gender issues. The paper also raises the question whether the failure to implement such training should be a reportable under the CEDAW mechanisms.

It reinforces that women in prison are likely to be victims as well as offenders, more than half (53 per cent) report having emotional, physical or sexual abuse as a child. Over half the women in prison report having suffered domestic violence and one in three had suffered sexual abuse. It suggests that the incarceration of women who have committed offences when they have been subject of exploitation, abuse or coercion is unreasoned.

It further suggests that treatment of women as victims is illogical when the patterns of abusive behaviour are diverse and so widespread. It goes on therefore to propose that women should be treated as witnesses to a global violence problem that nations must try to solve. It should be possible to accept certain acts as involuntary or recognise reduced culpability, thus apply new laws to move women from the position of “suspect” to the role of “witness”.

Other than the limited defence of duress, the exploitation, abuse and coercion of women is not applied as a criterion to reduce or extinguish criminal liability, the paper strongly recommends that this is an area ripe for legislative reform.

The authors propose that the absence of a sentencing guideline dealing with gender issues should be addressed. In particular, they note that primary care responsibilities should be taken into account but evidence is rarely called as it would be in a family case about the arrangements of children. The paper notes that the Sentencing Council has made advancements in this area, explicitly referencing “primary caring responsibilities” as a mitigating feature in its guidelines. However, the authors ask whether more ought to be done by the Council and ask whether courts should be provided with information concerning these issues. The Ministry of Justice estimates that between 24 per cent and 31 per cent of all female offenders have one or more child dependents and an estimated 17,240 children are separated from their primary carers (usually mothers) by imprisonment every year.

Finally, they make the case for more fiscally prudent decisions to consider that those who receive community orders rather than custodial sentences are less likely to reoffend and when they do they are less likely to commit violent crime. What’s more, the average cost of to keep a female offender in prison was approximately £56,415 per annum compared to £10,000-£15000 for an intensive community order. This argument has been made by others, such as the Prison Reform Trust and the Howard League. The authors support those groups and others in this endeavour.

The paper concludes that this argument is not about giving women lenient sentences, or sentences less than a man would receive in the same circumstances; it is about imposing the correct sentence by reference to the principles governing the sentencing system.

It is important to note one positive point since the 2014 report and that is numbers of female prisoners have fallen. However, female offenders – and their children – are still experiencing the devastating effects of short-term sentences and reports this month suggest that suicides in prison have reached “epidemic” proportions, with rates of self-harm and violence soaring to unprecedented levels.

It is time to bring about a fundamental and radical change in the way we treat women throughout the whole of the criminal justice system. As Corston identified in her 2007 report nearly a decade ago, “we require a radical new approach, treating women both holistically and individually – a woman-centred approach”.

Read the full policy paper here.
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by Felicity Gerry QC & Lyndon Harris

Due to the general election on 8 June 2017 the Justice Committee Inquiry into Prison Reform has concluded. Following the dissolution of Parliament on 3 May 2017, all Select Committees cease to exist until after the general election. Written and oral evidence received and accepted by the Committee so far is all published – or will shortly be published – on the inquiry page. It will be for the new Justice Committee in the next Parliament to decide whether to continue work on this subject. Read the written and oral evidence here.

Our submission (on women in prison and reform of justice and penal systems) has been published. It is based on our 4 year research project and 2 extensive policy papers: Women in prison – is the justice system fit for purpose AND Women in prison – is the penal system fit for purpose for Halsbury’s Law Exchange. Both papers give significant technical detail which we suggest would be of use to the Justice Committee. Both papers are too large to be added to the submission portal but can be found at the links above.

• Female offenders – and their children – are still experiencing the devastating effects of short-term sentences and reports this month suggest that suicides in prison have reached ‘epidemic’ proportions, with rates of self-harm and violence soaring to unprecedented levels.
• Leading charities such as The Howard League, Women In Prison and the Prison Reform Trust have aimed to bring about change in the way we treat women throughout the criminal justice system, it is clear that both the justice and the penal systems are still failing to address the multiple and complex needs posed by women.
• It is fiscally prudent to consider that those who receive community orders rather than custodial sentences are less likely to reoffend and when they do they are less likely to commit violent crime.
• The average cost to keep a female offender in prison was approximately £56,415 per annum, compared to £10,000-£15,000 for an intensive community order.
• This argument is not about giving women lenient sentences, or sentences less than a man would receive in the same circumstances; it is about diverting women away from the justice system altogether when they have acted as a result of coercion, abuse or exploitation (as a victim of domestic abuse or human trafficking) or imposing the correct sentence by reference to the principles which recognise the devastating effects of incarceration on women, their families and the knock on effects to society.
• It is time to bring about a fundamental and radical change in the way we treat women throughout the whole of the criminal justice system. As Corston identified in her 2007 report nearly a decade ago, ‘we require a radical new approach, treating women both holistically and individually – a woman-centred approach’.

Non prosecution and non-punishment of women
• Women in prison are likely to be victims as well as offenders, more than half (53%) report being emotionally, physically or sexually abused as a child. Over half the women in prison report having suffered domestic violence and one in three had suffered sexual abuse.
• The incarceration of women who have committed offences when they have been the subject of exploitation, abuse or coercion lacks reason.
• Treatment of women as victims is illogical when the patterns of abusive behaviour are diverse and so widespread. Women should be treated as witnesses to a global violence problem that nations must try to solve. It should be possible to accept certain acts as involuntary or recognise reduced culpability, thus apply new laws to move women from the position of ‘suspect’ to the role of ‘witness’.
• Other than the limited defences in the Modern Slavery Act 2015 and the common law defence of duress, the exploitation, abuse and coercion of women is not applied as a criterion to reduce or extinguish criminal liability. This is an area ripe for legislative reform. Wide consideration should be given to reducing criminal responsibility is all offences in a similar way to the partial defence of diminished responsibility to murder.
• The government has recognised the effects of coercive control in new legislation which contains criteria which could be adapted to apply to decisions not to prosecute or not to punish coerced or controlled women who allegedly offend.

Gender-specific approach
• To comply with international commitments to gender equality, three key areas are: training of judges and other actors in the criminal justice system on gender issues (particularly those set out in the Bangkok and Tokyo Rules); reducing the criminalisation of women subject to exploitation, abuse and coercion; and changing sentencing.
• There is at present no specific sentencing regime applicable to female offenders and the current approach is restrictive. One part of this discussion therefore has to be the power of the Sentencing Council to effect change by reviewing sentencing guidelines and whether it is achievable without alternatives and social provision. Where there is inequality, such measures can be taken.
• The supposedly simple solution for politicians to instruct judges to send fewer women to prison does not resolve the risk of re-trafficking, further abuse or re-offending. Nor does it abate the community appetite for retribution and risks putting the legislature at loggerheads with the judiciary.
• A sentencing guideline dealing with gender issues should be addressed.
• Primary care responsibilities should be taken into account by calling evidence as it would be in a family case. The Sentencing Council has made advancements in this area, explicitly referencing ‘primary caring responsibilities’ as a mitigating feature in its guidelines. However, more ought to be done to integrate criminal courts with family, child and health services. The Ministry of Justice estimates that between 24% and 31% of all female offenders have one or more child dependents and an estimated 17,240 children are separated from their primary carers (usually mothers) by imprisonment every year. Research shows that most children are then placed in out of home care.

Community orders as a priority
• In relation to female offenders a ‘one size fits all’ penal approach will not work.
• Whilst custodial sentences are sometimes appropriate, prison should not be the default response to criminal offending by women.
• Research has found that prison sentences fail to address the complex needs of female offenders.

Community prisons with health and welfare facilities
• Many female prisoners experience high rates of mental health disorders, have been victims of sexual and domestic violence, and suffer from substance addictions.
• Often women serving short sentences go on to reoffend: 54% of women leaving prison are reconvicted within one year; for those serving less than 12 months this increases to 64%. The Corston Report found that short sentences of around 30 days are particularly futile and damaging, and yet are commonly handed down.
• Evidence from Anawim Women’s Centre demonstrated that only 3% of women using its support services went on to commit further offences and 7% breached their community order. Yet reports suggest that many centres dedicated to assisting women in crisis are closing due to funding problems.

Whichever party wins the election must, in our view, prioritise prison reform for women. The research is now unarguable that our current justice and penal systems are inadequate, ineffective and cruel.

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At long last the saga has reached a conclusion. The Supreme Court handed down its judgment in the case of Ilott (Respondent) v The Blue Cross and others (Appellants) [2017] UKSC 17 on 15 March, a case having its roots in the death of the late Mrs Jackson (Mrs Ilott’s mother) some 13 years ago.

Their Lordships and Lady Hale delivered a unanimous decision in restoring the order of District Judge Million and dismissing the reasoning of the Court of Appeal in rejecting that original order. Malcolm Skinner, Solicitor in the Lexis®PSL Private Client team, analyses the judgment and the case for reform.

This is the first time that a case on the Inheritance (Provision for Family and Dependents) Act 1975 has come before the Supreme Court and it is perhaps most notable for that, given that the facts are fairly mundane – daughter marries unsuitable man, estrangement with mother follows with no reconciliation before mother’s death, mother leaves assets to animal charities, daughter challenges disposition and asks for reasonable financial provision.

There can be no doubt that Mrs Illott’s finances were in a parlous state but she and her family had been financially independent, although much reliant on state benefits, for many years. The Court of Appeal sought to lessen the reliance on state benefits but at the same time preserving those benefits. Their novel idea was to award a sum towards the purchase of a property and a lump sum causing as little damage as possible to the means tested benefits. The Supreme Court was not impressed and roundly declared:

‘It follows that the District Judge did not, on fuller analysis, make either of the two errors on which the Court of Appeal relied to revisit his award. That is enough to require this court to set aside the order of the Court of Appeal (Lord Hughes para 42)

This dismissal came after a lengthy dissection of the law relating to the concept of ‘reasonable financial provision’ in the 1975 Act and it is this that practitioners will take forward when advising clients.

As the judgment reminded us:

 ‘The test of reasonable financial provision is objective; it is not simply whether the deceased behaved reasonably or otherwise in leaving the will he did, or in choosing to leave none. Although the reasonableness of his decisions may figure in the exercise, that is not the crucial test’ (ibid 2).

How to apply that objective test

This was the central tenet of the judgment and the court spent some time reviewing the provisions of the Act in relation to the concept of reasonable financial provision in a wider context than just this case. They made the point that ‘reasonable financial provision means such provision as it would be reasonable for the applicant to receive for maintenance.’(ibid 12)

Perhaps reflecting on the Court of Appeal decision, maintenance could indeed encompass the provision of housing (see In re Dennis, deceased [1981] 2 All ER 140 obiter) although the purpose behind the statutory provision is to provide income, not capital.

It is worth quoting the following:

Reasonable financial provision is, by section 1(2), what it is “reasonable for [the claimant] to receive”, either for maintenance or without that limitation according to the class of claimant. These are words of objective standard of financial provision, to be determined by the court. The Act does not say that the court may make an order when it judges that the deceased acted unreasonably. That too would be an objective judgment, but it would not be the one required by the Act (ibid 16).

However, the court conceded that the reasonableness of the deceased’s actions are still a factor to take into consideration notwithstanding the freedom a testator has in making will provisions and there will be cases where the testator acted reasonably but failed to make reasonable provision. The Court cited with apparent approval the test proposed by Oliver J (see In re Coventry [1980] Ch 461 at 474-475). There is no reason to suppose that this will not continue to reflect the test that practitioners must try and satisfy with their clients.

The court plainly had some time for Oliver J as they approvingly reiterated his comments in respect of non-spouse claimants:

‘There must, as it seems to me, be established some sort of moral claim by the applicant to be maintained by the deceased or at the expense of his estate beyond the mere fact of a blood relationship, some reason why it can be said that, in the circumstances, it is unreasonable that no or no greater provision was in fact made’(ibid 20)

By way of clarification of this the court determined that in the case of an adult child capable of living independently more than being a child is needed to promote a claim – a moral claim is necessary.

The court then attempted to explain whether the needs of the claimant are the test for an order. In essence that cannot be the only consideration as there may be competing claims that impinge on the practicability of making an order that would satisfy those needs. Having said that it may well be that, in some instances, the relationship between the deceased and claimant was such that the whole of the estate is reasonable provision.

The questions that the court should ask themselves (as must practitioners) are:
  • did the will/intestacy make reasonable financial provision for the claimant and
  • if not, what reasonable financial provision ought now to be made for him?

It was confirmed that these questions should be addressed to the facts at the date of the hearing.

By way of an explanation of the above points the court dismantled the Court of Appeal decision. In determining the position it is clear that the court should not have adopted the approach of fixing a hypothetical standard of reasonable provision and then add to or deduct from it according to variable circumstances – it is for the court to look at all the factors (variables) in section 3 of the Act before concluding an order.

When looking at a potential order it is perfectly acceptable to look at the impact on benefits that the order may have. By this was meant means tested benefits, not tax credits which would remain intact. In other words what effect would an award have in reducing or annihilating those benefits?

A telling comment was that:

In some circumstances, different from those of the present case, receipt of state support greater than the testator could sensibly provide may be an understandable reason why it was reasonable for the deceased not to make financial provision for the claimant (ibid 45)

Lady Hale delivered a supplementary (rehearsed?) judgment which focused on the existing legislation or, rather, its deficiencies. In a thoughtful and insightful review of that legislation with some jibes at the Law Commission along the way. Her conclusion was that there was a:

‘……………….. wide range of public opinion about the circumstances in which adult descendants ought or ought not to be able to make a claim on an estate which would otherwise go elsewhere. That range of opinion may very well be shared by members of the judiciary who have to decide these claims. The problem with the present law is that it gives us virtually no help in deciding how to evaluate these or balance them with other claims on the estate’ (Lady Hale para 58)

With the legislation having no child age limit when dealing with adult children there is no guidance as to who would be deserving of support and who would not. This is at variance with the age limits contained in the Matrimonial Causes Act 1973 – surely a disconnection in family law.

Lady Hales’ conclusion signals important legislative food for thought:

I have written this judgment only to demonstrate what, in my view, is the unsatisfactory state of the present law, giving as it does no guidance as to the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance. I regret that the Law Commission did not reconsider the fundamental principles underlying such claims when last they dealt with this topic in 2011.

Malcolm Skinner specialises in Private Client work with particular emphasis on wills and probate including the contentious side.

Subscribers to LexisPSL Private Client can find further details on this matter in our Practice Note Family provision claims—children and those treated as children which includes a link to Ilott (Respondent) v The Blue Cross and others (Appellants) [2017] UKSC 17 directly. If you are not a subscriber, take a free trial here to access.

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Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a law unfit for purpose according to the Law Commission.

Since a landmark legal case in 2014, which widened the definition of who was subject to the “Deprivation of Liberty Safeguards”, local authorities have been under increased administrative pressures. As a result last year 100,000 people who required the authorisation did not receive it.

The Department of Health quickly recognised the issue, and asked the Law Commission – an independent body set up to reform the law – to review the legal framework to ensure suitable protections were in place.

Now in a new report published today, the Law Commission has offered its recommendations – proposing a new system designed to ensure that vulnerable people are no longer denied their rights.

Tim Spencer Lane, lawyer at the Law Commission and LexisNexis PSL Local Government Consulting Editorial Board member has prepared a detailed practice note summarising the Law Commission’s report Mental Capacity and Deprivation of Liberty, published on 13 March 2017. Before it’s here, it’s on Lexis®PSL. Click here to take a free trial.

The report (which includes a draft Bill) is the culmination of a 3 year review of the Deprivation of Liberty Safeguards (“DoLS”) under the Mental Capacity Act. The Law Commission’s report calls for the DoLS to be replaced, and sets out a new scheme called the Liberty Protection Safeguards.

Background to the report

The Law Commission’s review of the DoLS began in 2014 following a reference from the Department of Health. It was a response to a report by a House of Lords Select Committee which concluded that the DoLS legislation was “not fit for purpose”, and to a decision of the Supreme Court (known as “Cheshire West”) which gave a significantly wider interpretation of deprivation of liberty than had been previously applied.

In July 2015 the Law Commission published a consultation paper setting out provisional proposals for law reform. An interim statement was published in May 2016. The publication of the final report marks the completion of the review.

 The case for reform

The Law Commission argues that there is a compelling case for replacing the DoLS. It refers to “widespread agreement” that the DoLS are overly technical and legalistic, and “too often fail to achieve any positive outcomes for the person concerned or their family”. The report argues that the DoLS are not capable of dealing with the increased numbers of people considered to be deprived of their liberty following Cheshire West and requiring safeguards. It points to widespread reports of backlogs, breached statutory timescales and increased workloads for the public sector. The Law Commission therefore calls for the DoLS to be replaced “as a matter of pressing urgency”.

The Liberty Protection Safeguards

The Law Commission’s replacement scheme is called the Liberty Protection Safeguards.  The following provides a brief overview of the key elements.

The arrangements that can be authorised

Whereas the DoLS only apply to hospitals and care homes, the Liberty Protection Safeguards would also apply to other settings, for instance supported living, shared lives and private and domestic settings. In fact the new scheme is not limited to specific forms of accommodation or residence; it encompasses any situation where Article 5(1)(e) is potentially engaged. Authorisations could be given to enable a person is to reside in one or more places, or to receive care or treatment at one or more places. The specific arrangements that may be authorised are:

  • arrangements that a person is to reside in one or more particular places;
  • arrangements that a person is to receive care or treatment at one or more particular places; and
  • arrangements about the means by which and the manner in which a person can be transported to a particular place or between particular places.
16 and 17 year olds

Whereas the DoLS apply to those aged 18 and over, the Liberty Protection Safeguards would apply to people aged 16 and over. Currently, unless detention under the Mental Health Act is appropriate, a court application is required to authorise a deprivation of liberty of a 16 or 17 year old. The Law Commission argued that this situation is unnecessarily onerous and expensive for the State (especially NHS bodies and local authorities, which are often expected to bring cases to court), and potentially distressing for the young person and family concerned. The report also points to evidence that public authorities are not currently taking cases to court when they should.

The responsible body

The Liberty Protection Safeguards replaces the “supervisory body” with the “responsible body”, which is charged with authorising arrangements that give rise to a deprivation of liberty. The Law Commissions argues that there should a stronger link between the commissioning of the arrangements and consideration of whether deprivation of liberty is justified. In other words, the body responsible for arranging care or treatment should (to the extent that this is practicable) be responsible for considering requests for authorisations, commissioning the required assessments and giving the authorisation.

The Liberty Protection Safeguards provides for the following three criteria to be applied to identify the responsible body in any case:

  • if the arrangements are or proposed being carried out primarily in a hospital, the responsible body is the “hospital manager” (which would in most cases be the trust that manages the hospital in England or the local health board in Wales);
  • otherwise, if the arrangements or proposed arrangements are being carried out primarily through the provision of NHS continuing health care, the responsible body is the relevant clinical commissioning group in England or local health board in Wales; and
  • otherwise the responsible body is the “responsible local authority” (in most cases this will be the authority that is meeting the person’s needs or in whose area the person is ordinarily resident).
The conditions for an authorisation

The Liberty Protection Safeguards set out the following conditions, which must be met in order for the responsible body to authorise arrangements:

  • the person lacks capacity to consent to the arrangements which would give rise to a deprivation of the person’s liberty
  • a medical assessment has confirmed that the person is of unsound mind within the meaning of Article 5(4)(1)(e) of the ECHR)
  • the arrangements are necessary and proportionate by having regard to the likelihood of harm to the person and/or other individuals if the arrangements were not in place and the seriousness of that harm;
  • The required consultation has taken place (for instance with friends and family members)
  • The authorisation would not conflict with a valid decision of a donee or a deputy as to where the person should reside or receive care or treatment.
Independent review

The Liberty Protection Safeguards require an “independent review” to be carried out in order to confirm that it is reasonable for the responsible body to conclude that the conditions for an authorisation are met, or (in certain cases) to refer the case to an Approved Mental Capacity Professional. No one who is involved in the day-to-day care or treatment of the person can act as the reviewer.

In cases which are not referred to an Approved Mental Capacity Professional the reviewer is required to certify personally that it is reasonable to conclude that the conditions for an authorisation are met. They must review the information available to the responsible body and determine whether or not the responsible body’s decision to authorise arrangements is a reasonable one to come to on the basis of that information.

The Approved Mental Capacity Professional

The Approved Mental Capacity Professional is a new role which is intended to build upon the existing best interests assessor role.

The Liberty Protection Safeguards requires a referral to be made to an Approved Mental Capacity Professional if:

  • it is reasonable to believe that the person does not wish to reside or receive care or treatment at a particular place; or
  • the arrangements are regarded as necessary and proportionate wholly or mainly by reference to the likelihood and seriousness of harm to others.

In all other cases there would be a power to refer cases to an Approved Mental Capacity Professional.

The Approved Mental Capacity Professional’s role is to determine whether or not to approve the arrangements. They must meet with the person, and can consult other key individuals. The written approval of the Approved Mental Capacity Professional would enable the authorisation of arrangements by the responsible body. The Approved Mental Capacity Professional’s cannot be someone whis involved in the day-to-day care or treatment of the person.

Local authorities would be responsible for the approval and ensuring there are sufficient numbers of Approved Mental Capacity Professionals. A regulation-making power allows, amongst other things, bodies such as the HCPC to be prescribed to approve courses for Approved Mental Capacity Professionals. The draft Bill does not specify which professionals could or could not undertake the new role; this would be a matter for the Governments.

The Liberty Protection Safeguards aim to put Approved Mental Capacity Professionals in a similar position to Approved Mental Health Professionals. They would act “on behalf” of the local authority but would be independent decision-makers who could not be directed to make a particular decision.

The authorisation

An authorisation can have effect immediately, or up to 28 days later.

The responsible body must produce an “authorisation record” which must include matters such as details of the arrangements authorised.

An authorisation does not provide statutory authority to deprive a person of their liberty; instead, a new section 4AA of the Mental Capacity Act would simply provide a defence to civil or criminal liability in respect of acts done pursuant to an authorisation.

An authorisation can last for an initial period of up to 12 months and can be renewed for a second period of up to 12 months and thereafter for periods of up to three years.

A responsible body can renew an authorisation, rather than initiating a fresh authorisation, if it reasonably believes that:

  • the person continues to lacks capacity to consent to the arrangements;
  • the person continues to be of unsound mind; and
  • the arrangements continue to be necessary and proportionate.

An authorisation ceases to have effect (before the expiry date) if the responsible body if it knows or ought reasonably to suspect that:

  • the person has, or has regained capacity, to consent to the arrangements;
  • the person is no longer of unsound mind; or
  • the arrangements are no longer necessary and proportionate.

However, in the case of people with fluctuating capacity, the Liberty Protection Safeguards enable arrangements to remain in place during limited periods of capacity to consent or object to the arrangements, provided that:

  • the periods of capacity are likely to last only for a short period of time,
  • the person remains at all times “of unsound mind” for the purposes of Article 5, and
  • the authorisation of arrangements remains necessary and proportionate.
Reviews of an authorisation

The responsible body must set out in the authorisation record the fixed dates or prescribed intervals for reviews. The responsible body is required to keep an authorisation under review generally, therefore putting it in a position to undertake a review at any time in between the planned review dates if circumstances change. There would be a duty to hold a review:

  • on a reasonable request by a person with an interest in the arrangements which are authorised;
  • if the person becomes subject to the Mental Health Act; or
  • if the responsible body becomes aware of a significant change in the person’s condition or circumstances.
Rights to advocacy and an appropriate person

Under the Liberty Protection Safeguards there is a duty to appoint an advocate unless there is an appropriate person to represent and support the person to whom the arrangements would apply. This duty applies when the responsible body is proposing to authorise arrangments.

An “appropriate person” cannot be someone who is engaged in providing care or treatment to the person in a professional capacity or for remuneration. The appropriate person must be appointed to act as such unless they do not consent, or the person whom they would represent and support does not consent or (if that person lacks capacity to give or withhold consent) it would not be in their best interests to be represented or supported by that other person. The appropriate person has a right to advocacy support.

If there is no appropriate person, an Independent Mental Capacity Advocate must be appointed. Under the draft Bill, the responsible body must appoint an advocate unless the person does not consent, or (if the person lacks capacity to consent) unless being represented by an advocate would not be in the person’s best interests. This is intended to ensure that advocacy is provided automatically and on an opt-out rather than an opt-in basis.

Rights of legal challenge

Under the Liberty Protection Safeguards the right of legal challenge is to the Court of Protection. But the Law Commission further recommends that the Government should review this matter (as part of its existing programme of reform) and consider whether a tribunal might be more effective.


The draft Bill gives the Government regulation-making powers to require bodies to monitor and report on the operation of the new scheme (such as the CQC and Ofsted). The regulations could be used to allow visits of  certain types of institutions, more frequent visits in some cases, and “light-touch” forms of regulation in certain settings.

Mental Health Act interface

The report urges the Government to review mental health law in England and Wales with a view to the possible introduction of mental capacity-based care and treatment for mental as well as physical disorders (“fusion law”). In lieu of this, the draft Bill provides that the Liberty Protection Safeguards cannot be used:

  • to authorise arrangements carried out in hospital for the purpose of assessing or treating mental disorder, and
  • to authorise arrangements which are inconsistent with any requirement under one of the “community powers of the Mental Health Act (such as guardianship or a community treatment order)
Wider reforms of the Mental Capacity Act

The draft bill includes wider reforms to the Mental Capacity Act. These reforms are intended to provide Article 8 rights and improve decision-making under the Mental Capacity Act – regardless of whether a person is being deprived of their liberty. The draft Bill contains three reforms in this respect:

  • The best interests checklist in section 4 of the Act is amended to require greater weight to be given to ascertainable wishes and feelings.
  • The statutory defence under section 5 of the Act would not be available to professionals in respect of certain key decisions unless a written record has been prepared, which confirms a number of matters, for example that a formal capacity assessment has been undertaken and rights to advocacy have been given effect.
  • The Government is given regulation-making powers to establish a supported decision-making scheme.
Advance consent

The draft Bill would enable a person to give advance consent to specified arrangements that would (but for that consent) give rise to a deprivation of liberty. If advance consent is given, the arrangements would not amount to a deprivation of liberty and therefore the Liberty Protection Safeguards would not apply.

The person must clearly articulate the particular arrangements to which they are consenting. In line with the law on advance decisions to refuse treatment, advance consent would remain valid unless:

  • the person withdraws their consent when they have capacity to do so;
  • there are reasonable grounds to believe that circumstances exist which the person did not anticipate at the time of giving the advance consent and which would have affected their decision had he or she anticipated them; or
  • the person does anything else clearly inconsistent with the advance consent remaining their fixed decision.
Interim and emergency deprivation of liberty

The Law Commission’s intention is to bring forward formal consideration of the justification for a deprivation of liberty so that it occurs before the arrangements are made, rather than only afterwards. The DoLS system of urgent authorisations is therefore abolished. Instead, the draft Bill gives statutory authority to deprive someone of liberty temporarily in truly urgent situations and in sudden emergencies, but only to enable life-sustaining treatment or to prevent a serious deterioration in the person’s condition. Apart from those cases, it would not be permissible to impose a deprivation of liberty on someone until the proposed arrangements have been authorised.

Unlawful deprivation of liberty

The draft Bill provides that where care or treatment arrangements are put in place by, or on behalf of, a “private care provider” (defined as, broadly speaking, the managers of private care homes and independent hospitals) which give rise to a deprivation of liberty (and have not been authorised), the person may bring civil proceedings against the provider. The provider would not be liable if it reasonably believed that the arrangements did not give rise to a deprivation of liberty or the deprivation of liberty was authorised.


The draft Bill would amend the Coroners and Justice Act 2009 to provide that the duty to hold an inquest would not apply automatically to people subject to the Liberty Protection Safeguards. The Law Commission also recommends there be additional safeguards in place when a death is attributed to a lack of care.

 Practical impact of reform
  • local authority social care practice – the local authority would no longer be responsible for all authorisations. The NHS would be a responsible body in certain cases (ie hospital and NHS continuing health care cases). The local authority would be responsible for approving Approved Mental Capacity Professionals
  • SEN provision post 16 if the placement is residential – The Liberty Protection Safeguards can authorise arrangements which give rise to a deprivation of liberty for 16 and 17 year olds. It would therefore no longer be necessary to apply to the Court of Protection in such cases.
  • Patients and service users – in most cases, a deprivation of liberty can only be authorised before the person can be deprived of their liberty rather than afterwards. There would continue to be rights to advocacy, regular reviews and access a court.
  • Families – Families must be consulted before an authorisation can be given. Family members can also act as the appropriate person if they wish to do so. Families can also trigger reviews of the authorisation and access to a court.
  • Catastrophic injury claims – If a lawyer is aware that the person’s care or treatment arrangements may amount to a deprivation of liberty, they could request that an authorisation is given by the responsible body, rather than having to take the case to court.
Further Reading from LexisPSL Local Government (If you are not a subscriber click here to take a free trial to access): Further Guidance relating to Deprivation of Liberty from LexisNexis by Tim Spencer Lane

Private deprivations of liberty

Children, consent and deprivation of liberty

Deprivation of Liberty (DoLS)—training materials

Further content on DOLs written for LexisNexis by other authors

Deprivation of liberty court procedure

The Bournewood safeguards

Deprivation of liberty court procedure

LexisNexis News Analysis on five of the most recent DOL cases

Deprivation of liberty in medical emergencies (R (Ferreira) v HM Senior Coroner for Inner South London)

Deprivation of liberty in care arrangements (Secretary of State for Justice v Staffordshire County Council)

Where does care regime stop and deprivation of liberty begin?

Deprivation of liberty cases—a question of resources and responsibility

The deprivation of liberty—balancing rights, resources and responsibility

Tim Spencer Lane is a lawyer at the Law Commission for England and Wales. He is the team lawyer responsible for the Commission’s review of the Deprivation of Liberty Safeguards under the Mental Capacity Act 2015. He is a member of the LexisNexis PSL Local Government Consulting Editorial Board and author of several PSL Local Government Practice Notes and training materials on the Deprivation of Liberty.

A final report and draft Bill is published on 13 March 2017. Tim was previously in charge of the review of the regulation of health and social care professionals. This proposed a single legal framework for all the UK regulators including the GMC and HCPC. The final report, including a draft Bill, was published in 2014. Tim was also responsible for the..

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by Jon Robins

Our prisons appear to be in a state of permanent crisis but what little we on the outside know about what goes inside our chaotic and violent jails owes little to journalists. Media has been effectively banned by the Government from going into prisons.

This makes the role of those watchdog organisations that act as our “eyes and ears” vital. Independent Monitoring Boards (IMBs) are made up of unpaid members of the public who might give up two to three days a month of their time to assess life in prisons and immigration detention centres.

In theory, they have considerable powers. They can visit a prison at any time of day or night, nowhere and no-one is off limits. Members can inspect the kitchens and workshops and check out healthcare provision. They are free to talk to any prisoner they want and they can have those conversations in private.

Well, that’s the idea.

Recently the Prisons Minister Sam Gyimah wrote to the chairman of Hollesley Bay prison to “terminate” her appointment. Faith Spear had written an article complaining that those extensive powers were largely illusory for the 2016 Prisons Handbook. “I am a whistleblower without a whistle,” Ms Spear wrote under the pseudonym “Daisy Mallet”.

“I see so much going on around the prison estate, and not just where I work, that doesn’t add up,” she continued. “At times it’s like having your hands tied behind your back because there is little you can do about it… . At times I want to ask staff what the hell are they doing or not doing. I want to be a voice, that is the purpose of my existence.”

Ms Spear went on to say: “I want to speak out. I am here as the public’s eyes and ears, but my voice is silenced.”

It was the Prison Act 1898 that introduced Boards of Visitors which were renamed IMBs in 2003. In her article, Ms Spear argued that over the last 50 years they had been “subtly conditioned” to behave themselves and complained that she felt “gagged by grooming”. The threat of removal is ever present, and although Parliament has given me extensive powers I feel impotent to exercise them,” she wrote.

Faith Spear was responding to the editor of the Prisons Handbook, Mark Leech, who wanted to know why IMBs never did night visits. According to “Daisy Mallet”, IMBs used “the excuse” that there would only be a skeleton staff on duty and, if there was a disturbance, they would be held responsible. “In truth, however, we do not do them because we know it would be frowned upon,” she added.

Two months before the riot at HMP Bedford in Bedford, 230 inmates got out of their cells and took control of two wings for six hours, the IMB took what it called the unprecedented step of writing to Sam Gyimah. It warned that staff shortages were “beyond crisis point” and of the “alarming rise in prisoners attempting to hang themselves”.

Similarly, a couple of months prior to the major disturbance at HMP Birmingham before Christmas, described as the worst since the Strangeways riot 26 years ago, the local board also warned the MoJ of the prospect of trouble ahead. “Many staff are concerned for their personal safety as well as for the safety of prisoners and how to deal with the next ‘mamba attack’. A solution is required urgently,” it wrote.

Unfortunately for Faith Spear, her colleagues either disagreed with her critical, but hardly earth shattering analysis – or else they are only happy to be muzzled. When they discovered that their chair was “Daisy Mallet”, the vice chair wrote to her saying that their unanimous decision was that she had to resign and, if she didn’t, they would no longer attend meetings which she headed up.

It was her or them.

Now Sam Gyimah has written to her to terminate her contact. The Prison Minister accused her of having had “repeatedly disclosed official, classified and other information, often in an inaccurate manner”. “You have not denied this and in doing so failed to comply with agreed policies and procedures. You have also failed to comply with the standards expected of public appointees,” the minister said.

Ms Spear has been banned from sitting on any IMB for five years. She told the BBC the letter was “shock and upsetting”; but she is unlikely to be silenced. “The IMBs have to change,” she said. “It has to be part of the reform process. If people monitoring are not allowed to speak out about what they see, but are effectively shut down, then I think that is very dangerous.”

A 2014 review of IMBs by Karen Page Associates found that many members reckoned that “insufficient influence” over policy and regimes as “a key frustration”. “It was not enough to efficiently report issues (be the “eyes and ears”), members expected this to be a catalyst for change,” it said. “To some extent they may have been over optimistic about the extent to which they could have a direct impact.” It also noted that the IMBs “did not have enough credibility with key stakeholders to be seriously influential”. That report called for “urgent root and branch review and reform” of governance and arrangements.

In the 10 weeks between the posting of the IMB letter alerting the MoJ to the brewing crisis at Bedford and the rising incidents of self harm and suicide, two prisoners were found hanged. In an article for The Guardian, a serving board member Christopher Padfield called the response from Sam Gyimah little more than “a pat on the head”. For the last eight years, the volunteer had visited the prison most weeks. According to Mr Padfield: “In effect, he was saying: “This is a prison! If you can’t stand the heat, keep out of the kitchen. Sorry to hear that it has made you anxious. Less the two weeks later, there was a riot.”

Jon Robins is a journalist & editor of The Justice Gap

This article was originally published on Criminal Law & Justice Weekly 

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by Chantal-Aimée Doerries QC

John F Kennedy said: “Liberty without learning is always in peril and learning without liberty is always in vain.” I don’t agree entirely. Learning is always valuable, but I do agree that liberty is at risk, or in peril, without learning. As individuals, citizens and as lawyers, we have a responsibility to ensure that there is an awareness of, and appreciation for, the justice system in the UK. It is not easy to value something that is not understood.

As lawyers we occasionally take for granted that people understand how our justice system works, how judges reach their decisions, and the role advocates play in the process. Our justice system is not perfect, but it is among the best, and as a society we run the risk of taking for granted that it will continue to function.

We are fortunate: our judges will do what we ask of them, deciding cases brought to the courts, based on the law, without fear or favour. The judiciary and our justice system does not need protection from healthy debate on issues such as the UK’s constitutional arrangements, the rights and wrongs of the court’s decision on Art 50, how we select our judges, or indeed the pros and cons about leaving the EU. We all have, and are entitled to have, views on these matters.

Headlines that judges are the “enemies of the people”, a phrase redolent with historic menace, or that the judges are thwarting the will of the people should worry us. If society does not value and respect the justice system, including the judges and their judgments, much of the benefit of an independent, transparent justice system is lost. Having seen countries where people are fighting to establish a viable justice system, we cannot afford not to stand up for ours.

We take for granted at our peril the relative stability and adherence to the rule of law in our society. The risk is that we assume the foundations of our democratic society are so deeply ingrained that they cannot be disturbed. Two cornerstones of our society are the rule of law and the freedom of the press and of expression. When they are tested we, as a society, have to grapple with what these concepts mean in real terms and what, if any, the limits to them are.

It is right that we should debate them—that is healthy. But it is also important that as lawyers we engage with society and remind society why an independent judiciary is at the heart of our justice system, and at the heart of how society works. We will not be popular, but that is not our role in society. It is part of our role to explain what we do, why it matters and how we do it. The words of the Hon Michael Kirby come to mind: “Where there is no independent legal profession there can be no independent judiciary, no rule of law, no justice, no democracy and no freedom.”

The Bar Council supports debate and discussion, and the importance of press freedom. Together with the National Union of Journalists and the Law Society we ran the Speak in Safety campaign earlier this year, lobbying for amendments to the Investigatory Powers Bill to protect the safety and confidentiality of sources and whistleblowers, and of individuals seeking legal representation. Earlier this year we hosted a debate on the referendum with senior politicians supported both sides.

The Bar Council resolution, passed unanimously on 5 November, called upon the Lord Chancellor to condemn the direct attacks on the judiciary, in particular the direct attacks on those judges involved in the Art 50 High Court decision. The Lord Chancellor wears two hats, one as Lord Chancellor, and one as the Secretary of State for Justice. The role of Lord Chancellor, in contrast to the role of Secretary of State, is not a party political role. Instead the Lord Chancellor fulfils a role that has been described as “the conscience of the government”. Importantly, this role includes defending the independence of the judiciary.

Some have suggested that in asking the Lord Chancellor to deplore the tone and nature of some of the commentary on the decision, the Bar Council was asking the Lord Chancellor in some way to attack the freedom of the press. This is simply wrong. It was not an attempt to curb press freedom. There is a difference between disagreeing with what someone says, or writes, and preventing them from saying, or writing it.

We should debate the issues of the day, but we should do so with tolerance and engagement. Otherwise we risk losing sight of the virtues of listening, debating and disagreeing. Without education, society will struggle to understand what we do and what judges do, and why it matters.

Chantal-Aimée Doerries QC is Chairman of the Bar. An edited version of this article first appeared in Counsel magazine.

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In 2014 a Halsbury Law Exchange panel debated “Women in prison: is the penal system fit for purpose” – the answer to which was a resounding no. Despite panellist (the then MP) Simon Hughes committing to effect change as a result of that discussion the law still hasn’t made the headway hoped for in this area.

Two years later and following the publication of the policy paper co-authored by Felicity Gerry QC and Lyndon Harris, the debate now faced by the panel and chaired by Joshua Rozenberg was whether the justice system is fit for purpose.

Delivering her keynote address ahead of the panel debate, Felicity Gerry QC argued that if there is to be true change in the substantive law then “this change must continue on a greater trajectory”. It is utterly illogical that our justice system does not recognise exploitation, abuse, coercion and caring responsibilities that women face on a daily basis and there needs to be significant improvement in judicial diversity”.

Many women are [in prison] because of the men in their lives

No-one on the panel has a more firsthand experience of the issues faced by women in prison than Vicky Pryce, who, typically of the majority of female prisoners, served a short sentence for a non-violent crime. She went onto tell the audience about the staggering rates of self-harm, depression, substance abuse and suicide in women’s prisons.

Should we consider women differently to men?

Research into the background of female prisoners set out in the policy paper indicates that between 13–19% of women in prison are estimated to have one or more dependent children, and that women are more likely to be the primary carer of those children. Baroness Helena Kennedy, whilst clarifying that where men are the primary carers of children this should also be taken into account when sentencing, indicated that this was a strong reason why women should be considered differently at sentencing. She felt a report on the welfare of any children affected should always be done before deciding on the appropriate sentence. The impact on children, whose one or more parents are in prison, or babies born in prison, can be lifelong. Baroness Kennedy has been writing about the issue since the 1970s and said “a lot has happened [in that time] but not enough has changed” and that the quadrupling of women in prison since 1994 was a “catastrophe”.  There is urgent need for more imaginative ways to sentence women.

Is the public ready for reform of this nature?

Lord Beith explained that if the public can be convinced of the extreme waste of taxpayers money in the current sentencing system for women then they should lend their support to change. He elaborated by stating “why waste taxpayers money on policies that don’t work?” and that we simply need to find more cost effective ways of sentencing other than using prison.

How should the public be educated on sentencing reform?

In fact more than 80% of women in prison are there for non-violent offences and the public are largely in agreement that non-custodial sentences are more appropriate in these circumstances.

However, the public needs to be convinced that women’s drivers to offending are substantially different to men. Often they have been psychologically, physically and sexually abused and suffered the devastating effects of exploitation and coercion.

Jenny Earle of the Prison Reform Trust told the audience that most women were in prison for a first offence and that the consequences for them after they have served their sentences were ‘hellish’. 6 out of 10 women come out of prison with no home to go to because, unlike male inmates, they have no one to keep the family unit together while they are serving their sentence. The panellists agreed that the cost to families and children of offenders was high and by the same measure, the cost to society is amplified.

Are the courts ready for the solutions suggested in the paper?

John Cooper QC congratulated Felicity Gerry QC and Lyndon Harris on writing the “best report since Corston” (Corston Report 2007). He said that judges should never be ‘straitjacketed’. He criticised the current statute and set out the failings of the Criminal Justice Act 2003 s 142.  He went onto to say the statute needs a complete rethink; sentencing should be about proportionality and there needs to be a complete re-education of the judiciary on matters of custodial sentencing. It was also said that the introduction of the Offender Rehabilitation Act 2014 has in fact made things worse for women. It was noted with positivity that the new guidelines on sentencing for theft recognises the presence of ‘coercion’ as reducing culpability.

Is control and coercion by men a factor to which women are uniquely vulnerable?

More than 50% of women in prison are officially classified as vulnerable, Vicky Pryce told the audience. Their histories include exploitation by men, substance abuse, and more often than not they have no educational qualifications. Also, due to the merry-go-round of short sentences women are not in prison long enough to equip themselves with ‘even a GCSE’. Therefore, it is a misnomer that prison gives the offender the chance of ‘reform and rehabilitation’.

It is widely acknowledged that having a job reduces the rates of reoffending but sadly women struggle to get jobs when they leave the confines of prison; only 8% of women find work after leaving, compared to 20% of men. This fact compounds the difficulty they encounter in trying to get their children back, as being able to support their children is brought into question. John Cooper QC stated that “women are often released into destitution”.

What other sentencing methods or practices can be drawn upon?

Baroness Kennedy drew on the practicalities of experimenting with sentencing methods, expressing that piloting new ways and means is better done with women. There was some agreement that the current trend for closing prisons was about ‘real estate’ and value of the land which can then be sold to developers.

The Baroness praised the Scottish approach where the sale proceeds of prison real estate are being reinvested in women’s therapeutic centres. These regional centres are accessible to those women who really need them and in these centres they are able to seek help for the issues with alcohol, drugs, domestic abuse and mental health issues. These regional centres also mean that women are able to keep connections with their families rather than being placed in prisons miles away from them. In Scotland there is a presumption against short custodial sentences.

There was notable mention of Finland by Lord Beith, where the prison population as a whole has been reduced simply by the refusal of the finance ministry to provide increasing fiscal support to prisons.

What other issues need addressing?

John Cooper QC suggested that there is also a need for reform in policing and how police deal with women offenders. It was felt that the overuse of cautions was counterproductive. In addition, Vicky Pryce had sympathy with the prison service, fully acknowledging the difficulty of their job. Jenny Earle argued that it is the responsibility of a whole range of different services, not just the prison service, to take responsibility for what happens to women offenders, particularly if they are given custodial sentences.

Questions from the audience inevitably led to a wondering why nearly a decade after the Corston Report there has not been any palpable change in women’s circumstances under sentencing laws. There was resounding agreement in the room that the popular media play a big part in impeding change, insofar as politicians are scared of critical and sensationalist write ups which stir public opinion negatively. Also there has been competition by successive governments to appear to be ‘tough on crime’. It was felt that a women’s justice board such as the Youth Justice Board should be established so that the issues can be debated outside the glare of the media. This would enable the issues and solutions to be presented to the public in a meaningful and rational way.

Concluding remarks noted that the panel discussion considered alongside answers to the technical questions raised by the 2016 paper would go a long way in bringing forth change. There was a huge wealth of different expertise in the room and together this could start to effect change. Felicity Gerry QC in her final remarks concluded that change has to come because the current state of affairs “costs too much, not just fiscally but socially”.

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