Following last week’s general election, Michael Gove, the former Education Secretary, has been appointed Secretary of State for Justice and Lord Chancellor. He will have a key role in implementing the Conservative Party’s manifesto promises on justice and human rights.

The highest profile item on the agenda is the proposed scrapping of the Human Rights Act and its replacement with a British Bill of Rights. This pledge followed on from the inconclusive report of the Commission on a Bill of Rights in 2012 (click through to the report here), where members disagreed on whether such a step was desirable. Key challenges to implementing such a policy are likely to include:

  • Getting the approval of the devolved regions (Scotland, Wales and Northern Ireland), if the new Bill is to apply outside of England.
  • Whether the replacement of the HRA can be done without withdrawing from the European Convention on Human Rights.
  • Disagreement over what rights will remain and how extensively they will be protected. The manifesto mentions the right to a fair trial and the right to life as being protected. It is unclear what will remain of the much-maligned right to private life under Article 8.

Britain’s relationship with the EU will now be the subject of a referendum, scheduled for 2017. The new Justice Secretary can be expected to have a say in the negotiations to ‘repatriate’ powers from Brussels in key areas such as immigration. The precise nature of the repatriation has yet to be set out but key demands are expected to include:

  • Negotiating new EU rules so people will have to be earning in the UK for four years before they can claim tax credits and child benefits.
  • Introducing a four-year residency requirement for social housing for EU migrants.
  • Ending the ability of EU jobseekers to claim any job-seeking benefits.
  • Requiring EU jobseekers who have not found a job within six months to leave.
  • Extend the "deport first, appeal later" principle to cover all immigration appeals and judicial reviews, apart from asylum cases.

The Conservative victory also means that recent reforms to the system of judicial review introduced under the Criminal Justice and Courts Act 2015 are now unlikely to be reversed. These include:

  • Requiring claims to be dismissed if it was ‘highly likely’ that the result would have been the same had the decision-maker acted lawfully.
  • Requiring ‘interveners’ to pay the costs of other parties if their intervention in proceedings is thought to be unnecessary or not of ‘sufficient assistance’.
  • Preventing costs capping orders from being made until permission to apply for judicial review has been granted.

The Government will also press on with the introduction of a two-tier system of criminal legal aid contracts to affect a further 8.75% cut in fees from July. This follows on from the failed judicial review challenge to the scheme in February.

Finally, the Conservatives will continue to lead the ongoing project to create a legal structure for the sharing of data between public bodies, which is currently being developed through the Cabinet Office. It is possible that a white paper on data sharing may be released in the next few months.

For further information please contact Melanie Carter, head of Public & Regulatory on +44(0)20 7551 7615 or at m.carter@bwbllp.com


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Melanie Carter

Partner and Head of Public & Regulatory

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+44(0)20 7551 7615

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m.carter@bwbllp.com
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Posted on 12/05/2015 in Legal Updates

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