3 legal developments that probably won’t happen in 2018

There’s any number of articles around at this time of year telling us about legal developments that are coming up in the next 6 to 12 months.

From the annual increases to tax allowances, minimum wage rates, and statutory pay for sickness, maternity and other family-related absence, to much more fundamental changes such as the new gender pay gap reporting requirements to the much heralded General Data Protection Rules (GDPR) there is a lot that UK businesses need to prepare themselves for, by springtime.

But, looking further into 2018, there is also plenty of legislation that has been proposed but is still a long way from the statute books, let alone an implementation date.

The combination of the government’s surprisingly weakened position in the House of Commons since last June’s election and the inevitable priority that must be given to the legislation necessary to deliver an orderly exit from the European Union, has greatly reduced the political capital and parliamentary time available to other legislation.

The free vote that the Prime Minister had promised on repealing the 2004 Hunting Act was an early casualty in 2018, but there are a few other initiatives unlikely to get before parliament, onto the statute books and into force by the end of the year.

Tribunal fees strike back?

As recently as October, (then) Lord Chancellor David Liddington claimed the government still wanted to replace the employment tribunal fee regime struck down by the Supreme Court last summer. However, higher priorities for the Ministry of Justice and the reduced income that any fair and workable system could raise, will make quick progress on this unlikely.

LASPOA reform

Formal assessment of the impact that five years of the Legal Aid, Sentencing and Punishment of Offenders Act (2012) has had on access to justice, was finally timetabled by David Liddington last year, and is due to report by the end of April. Given the time it has taken even to get the assessment underway, the prospect of any major reform of the legislation being implemented in 2018 seems remote.

Civil Liability Act

Another piece of MoJ business that we seem to have been talking about forever, is the Civil Liability Bill mentioned in last year’s Queen’s Speech. The proposed increases to small claims court limits of £5,000 for road traffic injury claims and £2,000 for other injuries appear to be set in stone, but the faltering progress these reforms have seen since George Osborne first announced them in 2015, makes a September implementation seem less likely than April 2019.

Unlikely as these three developments may be to see legislative action this year, there is more than enough reform taking place in 2018 to keep us all busy. The uncertainty surrounding the implications of Brexit, especially what it means for employment law, should become clearer as the year progresses. But one piece of EU reform that seems certain to survive, GDPR, should be enough to keep us all busy, at least until the summer.

A better summer for access to justice

It’s often said that a week is a long time in politics, so perhaps it isn’t surprising that the six months since the last edition of the RAG seem like an age.

June’s snap election hadn’t even been called when we were putting together our last issue, and it transformed not just the wider political landscape, but also the immediate future of legislation set to have a major impact on our market and policyholders.

Reforms to tackle the so-called “compensa-tion culture” ran out of parliamentary time, but the political impetus seems to have survived in the Civil Liability Bill.
In spite of the mauling it took at Select Committee, the claim of saving motorists £35 on annual premiums still made the summary of the new bill in the Queen’s Speech. 

Further scrutiny and the government’s diminished position in the House of Commons may force some compromise on the controversial ‘whiplash’ proposals, but the priority demanded by eight pieces of Brexit legislation makes the planned October 2018 implementation seem unlikely.

The courts may have a reputation for moving a little slower than Westminster, but the impact of one decision handed down over the summer is equally important.
In July, the Supreme Court ruled that the fees charged since 2013 to bring a case to an employment tribunal were unlawful. UNISON succeeded in proving that the fees, which ranged from £390 to £1,200, were indirectly discriminatory and restricted access to justice.

As well as sorting out which fees should be refunded (successful applicants may already have recovered them in their settlement) the government will also have to manage increased demand on the tribunal system and ACAS, where the early conciliation process introduced in 2014 is still mandatory.

ARAG’s personal and commercial policyholders have been largely insulated from the fee regime and its reversal, underscoring the great value that legal protection offers, but removing the fees barrier while maintaining the compulsory ACAS process, strikes a balance between the interests of employers and employees.

If all that were not enough, in September, the Ministry of Justice proposed a new mechanism for calculating the ‘discount rate’, in response to the collective outcry thrown by insurers when the rate was revised in February.

Precisely what rate the new mechanism will produce remains to be seen, but a sensible compromise seems likely, so there should be no return to the serious underfunding of long-term care that severely injured people suffered for so long.

While there are still clouds on the horizon, it has been a better summer for access to justice than we might have forecasted and some threats to the stability and great value that our policies off er seem to have abated, for now at least.