This week’s roundup steals a march on Brexit, and casts an eye on probation, accountancy, family courts and young criminals, before tripping the maple leaf rag.

Brexit

March for second vote rambles against the shambles

The second anniversary of the referendum in which just shy of 52% of those eligible to do so (some 17 million of them) voted for Brexit was marked on 23 June with a massive march of those in favour of holding a public vote on the actual terms of withdrawal from the European Union eventually reached by the negotiating parties. Over 100,000 turned up, according to some estimates even more, to march along the Mall, down Whitehall, to Parliament Sq.

Although many of them probably would rather reverse the original referendum vote, the stated purpose of this march was to hold a second vote to approve, or reject, the deal or lack of deal, reached with the other 27 member states. But the idea that, if the deal were not approved, there would be no Brexit seems far-fetched. So the vote might only be between a bad deal and the even worse one of no deal at all. That cannot have been the marchers’ intention.

Where are we now? Despite the preponderance of remainers in public demonstrations, the crowdfunded judicial reviews and other proceedings, public opinion remains fairly evenly divided, if the polls are anything to go by. There has been a lot of unparliamentary acrimony, name calling and confusion not just about the sort of deal we might end up with but how such a deal will be approved and then implemented. It does seem rather astonishing that, two years on, and despite all the prime minister’s talk of Brexit meaning Brexit, the UK cabinet has still not decided what kind of deal it wants. There remains the real risk of a no-deal scenario, or of a hurriedly assembled last-minute fudge which could be nearly as bad. In short, it’s Brexitshambles as usual, only the deadlines are getting tighter. Essay crisis, anyone?

Implications of no deal

The implications of ‘no deal’ were considered in some detail by the House of Commons Foreign Affairs Committee in a report (HC 1077) published in March 2017. The committee took evidence from the Bar Council and Professor Kenneth Armstrong of Cambridge University, and also looked at evidence given by others to a number of other parliamentary committees. The government itself declined to give evidence, apparently preferring not to give anything away that might weaken their hand in the negotiations.

As the report pointed out, it is ‘in no one’s interests for there to be a cliff-edge for business or a threat to stability, as we change from our existing relationship to a new partnership with the EU’. Instead, ‘we believe a phased process of implementation … will be in our mutual interest’.

Despite this, the report noted, the government had repeatedly asserted that it would walk away from the article 50 negotiations if it did not approve of the terms of the final deal. Both Theresa May herself (in a speech in January 2017) and a government white paper issued a month later (CM 9417, para 12.3), said ‘no deal … is better than a bad deal’.

Yet for obvious reasons no deal is itself a bad deal, so it is really a question of choosing which badness to prefer. Would pride or pragmatism rule (or rue) the day?

The committee report identifies the main areas of concern in the event of a no-deal situation:

  • Disputes over the exit bill (money owed to the EU)
  • Uncertainty for EU citizens in the UK and UK citizens in the EU
  • Trading on World Trade Organisation (WTO) terms – including high tariffs for some goods
  • The regulatory gap
  • Uncertainty for UK participation in the EU’s common foreign and security policy
  • Sudden return of a hard customs border between Northern Ireland and the Republic of Ireland

Some of these have since been dealt with to a greater or lesser extent. Some alleged solutions on the Irish border have been more creative than convincing. Last week an announcement was made about EU citizens in the UK (see Immigration, below). Business such as Airbus have indicated a lack of confidence in future regulatory and trading arrangements about which the government remains vague, and have threatened to disinvest in the event of a no-deal situation. This has been categorised as ‘scare mongering’ by the pro-Brexit lobby.

Where we are now, and who gets to vote on it

A joint statement from the EU negotiators and the UK government was issued on 19 June summarising the current state of progress.  

In its February 2017 white paper, the government committed to putting the final deal to a vote in both Houses of Parliament. That seems to be what the alleged rebels in both Houses appear to have been trying to enshrine into statute in the recent argy-bargy over the ‘meaningful vote’ amendments to the EU Withdrawal Bill. Now the marchers outside want to put that choice, not just to a parliamentary vote, but to the entire people.

For more on this see:

Obiter J, Law and Lawyers blog,

Jack of Kent blog, Where are we with Brexit? 

Probation service

Damning report on privatisation

Last week the House of Commons Justice Committee published another damning report  (HC 482) on Transforming Rehabilitation, the Ministry of Justice’s part-privatisation of the probation service implemented during Chris Grayling’s reign as Lord Chancellor and supposedly a key spoke in his ‘Rehabilitation Revolution’.

The scheme involved splitting probation services in 2014 between a public sector National Probation Service (NPS) and 21 new Community Rehabilitation Companies (CRCs) owned by primarily private providers. The NPS advises courts on sentencing all offenders and manages those presenting higher risk of serious harm, while CRCs supervise offenders presenting a low and medium risk of harm. In 2016 the National Audit Office identified problems with ‘frictions between working level staff at the NPS and CRC’ and found that ‘staff in both organisations consider that high workloads have reduced the supervision and training that they receive and the service they provide’.

In 2017, the Ministry took action to ensure continuity of probation services in England and Wales by amending its contracts with CRCs from 2017-18 to improve their financial stability. A further investigation by the National Audit Office in December last year found that the Ministry of Justice had had to change the fixed-cost assumptions in their contracts with CRCs from 20% to 77%.

The Justice Committee report points to the ‘many serious issues that have arisen as part of those reforms’ and concludes that ‘this raises serious questions about the Ministry of Justice’s reluctance to challenge overoptimistic bids and its ability to let contracts.’ The report criticise’s the ministry’s management of the contracts with CRCs and notes that ‘CRC performance in reducing reoffending, particularly the number of times an offender reoffends, has been disappointing. We conclude that we do not think that the payment by results mechanism provides sufficient incentives to providers to reduce reoffending…’

The report also finds that ‘Staff morale is at an “all-time low” and staff have high caseloads, in some instances they are handling cases for which they do not have adequate training, and they feel de-professionalised.’

Finally, and damningly, the report says: ‘On the longer-term future of the TR reforms we conclude that we are unconvinced that the TR model can ever deliver an effective or viable probation service. We recommend that the Ministry of Justice initiate a review into the long-term future and sustainability of delivering probation services under the models introduced by the TR reforms, including how performance under the TR system might compare to an alternative system for delivering probation.’

For more commentary: see Russell Webster’s blog, including

Family

President mourns FDAC closure

Sir James Munby, President of the Family Division, issued a statement on 21 June 2018 expressing his dismay that the Family Drug and Alcohol Court (FDAC) National Unit has had to withdraw its application for funding to the Life Chances Fund because of lack of support from local authorities and that the National Unit would be closing in September because of the lack of continuing funding from central government.

This was ‘grim news’, he said, ‘not least at a time when, as both I and my designated successor made clear at the launch [of the Care Crisis Review], the care system is in crisis.’ The launch of the Care Crisis Review with a speech by Munby’s successor, Sir Andrew McFarlane, was reported here last week: see Weekly Notes – 18 June 2018

The shortsightedness of the closure is manifest from the fact that ‘FDAC saves the local authorities who participate significant sums of money: £2.30 for every £1 spent’. Research shows that ‘more children are reunified with parents if the case has gone through FDAC than through the normal family court, and there is significantly less subsequent breakdown’.

Sir James added:

‘While I very much hope that this latest development will not prejudice the continuing viability of the established FDACs, this profoundly disturbing news must be of immense concern to everyone who, like me, is passionate about the need to improve our family justice system for the benefit of the families, children and parents we serve.’

Accountancy

Deloitte ABS green light

Deloitte, one of the ‘big four’ accountancy firms, has been awarded its Alternative Business Structure licence, enabling it to offer services derived from reserved legal activity. Legal futures reports that ‘The Solicitors Regulation Authority granted the licence at the end of last month and it took effect a week ago.’

Under the Legal Services Act 2007, only lawyers can undertake reserved legal activities, but the ABS scheme enables firms which are not law firms to employ lawyers to do them. What is a reserved legal activity may be the subject of discussion: last week we reported on the topic of will writing, which is currently not a reserved legal activity, nor is it regulated.

Legal Futures reported that

‘In a rare addition to the standard terms of an ABS licence, Deloitte’s specify that where one of its lawyers is “engaged in legal activity that is not regulated activity”, then he or she should not act for a client where there is a conflict of interest unless the client has given informed consent, and “appropriate safeguards can be put in place that are consistent with the SRA Principles and maintain the confidentiality of the affairs of that client”.’

Not everyone will be delighted with Deloitte – or indeed the other 3 of the Big Four accountancy megaliths, KPMG, PWC and Ernst & Young (EY) – providing reserved legal services, in addition to all their consultancy services. That’s not because of the competition with bona fide law firms who don’t go around dabbling in auditing and snake oil salesmanship just because they can. Rather, it’s because, as the collapse of Carillion (audited by KPMG) demonstrated, these massive accountancy firms have become so embedded in the businesses of their clients, and of the government (to whom they provide advice and consultancy and cleanup-after-cockup services) that they seem to have lost sight of their core role as auditors and often fail to reveal, or even conceal, the warning signs of bad management and shaky business.

For a more robust and itemised assessment of their failings, listen to the Private Eye Page 94 Podcast episode 33, Bean Counters and Dog Lovers  (which also includes an account of how far Private Eye was on top of the Jeremy Thrope story long before he was actually charged.)

Crime

Young adults in the CJS

Another report from the House of Commons Justice Committee deals with Young adults in the criminal justice system  (HC 419). Young adults in this context means offenders aged between 18 and 25. Their treatment in the system was the subject of an earlier report, in 2016, and this report reviews progress since then, expressing disappointment that things have not improved. ‘The failure of successive Governments to deal with young adults effectively which the Committee found was crucial to enable them to make a successful transition to a crime-free adulthood.’

Introducing the report, the committee tweeted: ‘We are not persuaded that the approach taken to deal with young adults in the criminal justice system has had any positive outcomes.’

There is a good explainer about the report on RightsInfo: ‘Changes Needed To Narrow’ Criminal Justice System for Young Adults 

Immigration

Here to stay: EU citizens and their families

Despite the continual trolling of the Daily Mail and other xenophobic tabloids, the UK government has announced that European Citizens living in the UK can apply for ‘settled status’ in order to continue living here after 2021. The Home Office announcement explains:

‘You will not need to apply if you’re an Irish citizen or have indefinite leave to remain, but your family members from outside the UK and Ireland will.

The scheme will open fully by March 2019. The deadline for applying will be 30 June 2021.’

However, don’t hold your breath: ‘Full details of the scheme are still subject to approval by Parliament.’ And this week Parliament has been up the hill and down again in terms of its credibility as a democratic decision-making body (see all that ‘meaningful vote’ stuff in Brexit, above).

Law (and injustice) from around the world

Canada

Cannabis legalised

Canada has become the first G7 nation, and only the second country in the world, to implement legislation permitting a nationwide marijuana market. In the neighbouring US, nine states and the District of Columbia now allow for recreational marijuana use, and 30 allow for medical use. In the UK, permission for medical use seems to depend on the Home Secretary’s whim, rather as equity was once said to on the size of the Lord Chancellor’s foot.

CNN reports that Uruguay was the first country to legalize marijuana’s production, sale and consumption in December 2013. Although the Canadian government had initially stated its intent to implement by July 2018, provinces and territories, who will be responsible for drafting their own rules for marijuana sales, have advised that they would need eight to 12 weeks after the Senate approval to transition to the new framework.

Now perhaps there’ll be dancing around the maple:

That’s it for now. My thanks to all who led me to stories, mostly my followees on Twitter. 

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.