Commons Library Analysis: The Prisons and Courts Bill

Overview

The Prisons and Courts Bill covers a number of policy areas that fall within the Ministry of Justice’s remit, from prisons to whiplash to online criminal convictions. The Bill, which is composed of six parts, deals with four discrete areas:

• Part 1 on prison reform
• Parts 2 and 3 on reforming the court and tribunal system
• Part 4 on the judiciary and the Judicial Appointments Commission; and
• Part 5 on whiplash.

The Bill is due to have its second reading on 20 March 2017.

Library Briefing Paper CBP 7892: Prison and Court Statistics, England and Wales gives statistics on the Bill to accompany this Briefing Paper.

The Ministry of Justice has published Explanatory Notes. The Gov.UK website has a “latest news” page, Prisons and Courts Bill: what it means for you and a collection of relevant documents including  factsheets on the Bill, impact assessments and equalities statements.

The Bill’s progress can be followed on the Prisons and Courts Bill page of the Parliamentary website, which also provides relevant documentssuch as proposed amendments and versions of the Bill.

Where does the Bill extend to?

Most of the Bill extends to England and Wales only. However, some aspects of the prison reforms also extend to Scotland and Northern Ireland, because Her Majesty’s Inspectorate of Prisons and the Prisons and Probation Ombudsman have functions relating to immigration detention, and this is a reserved matter.  In relation to court reform, Parts 2 and 3 of the Bill are relevant to Scotland and Northern Ireland in so far that they make changes to the way in which reserved tribunals are administered.

Prison reforms

The Government’s proposals

Part 1 of the Bill concerns prison reform. The Government’s November 2016 white paper, Prison Safety and Reform, set out a range of proposals to deal with increasing levels of violence and self-harm in prisons and the persistently high levels of reoffending.  A central proposal was greater autonomy for prison governors, currently being piloted in six “reform prisons”. 

Which of the prison reforms are in the Bill?

Many of the proposed reforms do not need primary, or indeed any, legislation. As a result, there is actually very little in the Bill on prisons.

A new statutory purpose

Clause 1 sets out a new statutory purpose for prisons promised by the white paper (similar declaratory provisions exist in legislation for probation and youth justice) and amends the Secretary of State’s duties to include reporting on the extent to which prisons are achieving that purpose.

Inspection and oversight

Clause 2 makes some changes to the law governing Her Majesty’s Inspectorate of Prisons, and provides inspectors with some additional powers. Clauses 4-20 would put the Prisons and Probation Ombudsman on a statutory footing.  There were attempts to do this in 2004 and 2008, but these were abandoned. 

Prison security – mobile phones and drugs

The provisions on prison security in chapter 3 of Part 1 build on recent legislation to help deal with two major challenges to prison security: illicit mobile phones and psychoactive substances. A 2012 Act already allows prison governors to interfere with wireless telegraphy in prisons in order either to block mobile phones or detect their use. Clause 21 would allow the Secretary of State to authorise telecoms and internet service providers to do this. Legislation in 2015 and 2016 was brought in to deal with New Psychoactive Substances (NPSs), including introducing a new offence of possession in a custodial setting. Clause 22 would allow for prisoners to be tested for NPSs without each individual substance needing to be specified separately.

Court reform

Parts 2 and 3 of the Prison and Courts Bill will make significant changes to courts and tribunals system in England and Wales. The provisions includes reforms to the criminal courts, civil courts, the family courts and tribunals in England and Wales.

What is driving these reforms? 

 The provisions in Parts 2 and 3 predominantly relate to Her Majesty’s Court and Tribunal’s (HMCTS) Reform Programme, which was launched in March 2014.^[1] The programme, and this Bill, aim to modernise the justice system and improve access to justice, through a series of reforms designed to integrate technology and enhance efficiency. The aims and principles of the programme were set out in a joint statement by the Lord Chancellor, the Lord Chief Justice and the Senior President of Tribunals, titled Transforming Our Justice System, which was published in September 2016.

How will the criminal justice system be changed? 

The proposed reforms to the criminal courts focus on expanded use of technology, in particular by providing for more hearings and decisions to be conducted in writing (including electronically) or virtually via audio and video links.  The proposals that have attracted most comment are those to enable “fully virtual” court hearings, and those to introduce a new automated online conviction procedure for certain low-level non-imprisonable offences.

How will the bill reform the civil justice system? 

Part 2 of the Bill also provides the legal foundations for the introduction of new online procedures and online dispute resolution (ODR) for the civil courts, family courts and tribunals. The clauses enable the creation of a new online court that could deal with low value money claims below £25,000, as was recommended by Lord Justice Briggs’ Civil Courts Structure Review. The clauses would allow new online procedures to apply to existing civil courts, family courts and tribunals.  The Government’s Transforming our justice system paper indicates that the Social Security and Child Support Tribunal is going to be one of first “to be moved entirely online, with an end-to-end digital process that will be faster and easier to use for people that use it”. 

Judiciary and the Judicial Appointments Commission

Part 4 of the Bill concerns judicial terms and conditions, and the role of the Judicial Appointments Commission. The former provisions of the Bill largely follow from the Ministry of Justice’s consultation on Modernising Judicial Terms and Conditions, while the latter follow from certain recommendations in the Triennial Review of the Judicial Appointments Commission. There are also minor changes to the law on deployment of judges and the remuneration of Employment Tribunal members.

What’s happening to appointments for senior judges?

At present, some leadership roles are held on a fixed term basis whereas others are not. Many leadership judge positions are non-statutory, and thus can already be held on a fixed-term basis without the need for legislation. Clause 56 amends the law to allow the remaining statutory judicial leadership positions to be held on a fixed-term basis, in line with the conclusions of the Ministry of Justice’s consultation. The Government claim that this will create a clearer career path and improve diversity in the judiciary. The Bill does not specify how long the term will be for any such appointments, as this is left to the Lord Chancellor to decide following consultation with the judiciary. Proposals to appoint all fee-paid judges on fixed-term appointments were included in the consultation but are not being taken forward in the Bill.

What about the Judicial Appointments Commission is changing?

Clause 60 amends the law to allow the Lord Chancellor to direct the Judicial Appointments Commission (JAC) to provide its advice on appointments both within and without the United Kingdom, even where those appointments are non-judicial in nature. The JAC is also empowered to set up a charging model to recoup the costs of providing this advice. This is following a recommendation in the Triennial Review that these duties were formalised, as they were already being sought out due to the JAC’s expertise in the realm of appointments.

Whiplash

The information in this briefing paper about the whiplash provisions in the Bill can also be accessed as a separate document, Whiplash claims: Prisons and Courts Bill.

Background

Against a background of rising motor insurance premiums and the perception (not universally accepted) of the existence of a “compensation culture”, there has been a focus on the incidence of personal injury claims for whiplash injuries, insurance fraud more generally, and the extent to which this has affected the cost of motor insurance.

The Government remains concerned about the number and cost of whiplash claims and has consulted on ways to address the issue. It now intends to proceed with a range of reforms aimed at capping whiplash compensation payments and banning settlement of claims without medical evidence.

The Bill: Part 5

Part 5 of the Bill deals with whiplash, including the definition of whiplash; damages for whiplash injuries; an uplift, in exceptional circumstances, to the amount of damages; banning settlement of claims before medical report; and regulation of the ban on pre-medical settlement. Much of the detail would be included in secondary legislation, which, in many cases, would be subject to the affirmative resolution procedure.

Reaction to the Bill

In general, lawyers’ groups, including the Law Society and the Association of Personal Injury Lawyers, are among those who have raised concerns about the Government’s proposals, while the Association of British Insurers has welcomed them.

The Government considers that the reforms would lead to savings of about £1bn and expects this to be passed on to motorists, resulting in an average saving per motor insurance premium of £40. Others disagree that the savings will be passed on and also consider it unfair that the reforms would reduce the compensation payable to genuine claimants, and leave victims to conduct claims without legal advice.  There is also disagreement about whether the number and cost of whiplash claims has increased.

Further reading

Background information about the whiplash provisions is provided in Library briefing paper, Small claims for personal injuries including whiplash. Information about factors influencing the cost of motor insurance premiums, and what Government and the industry have done to try and reduce costs, is provided in Library briefing paper, Motor car insurance.