REUTERS | Zoran Milich

Leaving us hanging: what dispute resolution practitioners can expect following the General Election 2017

Surprised? Why? Surely you should have seen something unexpected coming. After all, it was only a matter of months ago that the USA delivered a shock result: Warren Beatty and Faye Dunaway wrongly declared that La La Land had won the Academy Award for Best Picture at this year’s Oscars. Now we must reflect in the Moonlight for what the UK General Election 2017 means for dispute resolution practitioners. In spite of the otherwise uncertain result, there are a number of things we can probably expect.

Which party will lead a government?

As it stands, the Conservative Party is in the most likely position to form a minority government, with the conditional support of Northern Ireland’s Democratic Unionist Party (DUP), which won 10 seats. That Sinn Féin won seven seats reduces the necessary number needed for a majority in the House of Commons from 326 to 322, as the republicans exercise a long-standing policy of abstention from Parliament’s green benches. As such, the Conservative manifesto should be the first port of call in determining what policies may be implemented.

However, with no Parliamentary majority, any government will likely have to compromise across the floor of the House, so the best thing to do is look at those issues where the main English parties converge (the Scottish National Party (SNP) has won 35 seats, but it shall not be the primary focus of this blog as I am considering matters relevant to the law of England & Wales; Scotland, of course, has its own distinct legal system, and the SNP traditionally abstains on votes that do not affect those north of the border).

Brexit

The UK is still set to leave the EU. Article 50 of the Treaty on the Functioning of the European Union (TFEU) has been triggered, so the process of departure is in motion. The Conservatives have proposed a Great Repeal Bill, which will convert EU law into UK law, thereby allowing Parliament to pass legislation to amend, repeal or improve any piece of EU law once it has been converted into domestic law. The DUP campaigned for Brexit in last year’s referendum, so some form of this bill is likely to be passed.

That being said, Labour supported the passing of the motion granting the last government the right to trigger Article 50 earlier this year, but, unlike the Conservatives, their manifesto indicates a preference to retain the benefits of the single market and the customs union. The Liberal Democrats want a second referendum on the terms of the final deal. It may therefore be impossible at this stage to know the final destination, but the plane is in the air (and we await news about the pilot).

Court modernisation

Presumably the programme to modernise the courts, improve court buildings and facilities, and make it easier for people to resolve disputes and secure justice will continue. Each of the three main parties, in one form of words or other, has promised to continue with court modernisation. However, the specifics may no longer be clear.

Although the senior judiciary endorsed Briggs LJ’s Civil Courts Structure Review: Final Report and recommendations, many Ministry of Justice (MoJ) initiatives were postponed as a result of the general election. The Practical Law Dispute Resolution blog has featured commentary arguing that the Prisons and Courts Bill, which was halted in light of the dissolution of the 2015 Parliament, will find its way back onto the floor because it did not face any opposition in the House of Commons (it received an unopposed second reading and advanced to the committee stage). As each of the three main parties has pledged to continue with modernising our justice system, the programme will rumble on.

Human rights

It would seem that the previous Conservative manifesto commitment of 2015 to repeal and replace the Human Rights Act 1998 (HRA) has been kicked into the long grass, perhaps indefinitely. Not only does the Conservatives’ 2017 manifesto pledge to remain signatories to the European Convention on Human Rights (ECHR) during the course of the next Parliament, it states that a Conservative government will not repeal and replace the HRA while the process of withdrawing from the EU is underway. This implies that the HRA could be repealed and replaced in time, but the Labour Party and the Liberal Democrats both pledged to retain the 1998 legislation. With no party having an overall majority, I cannot foresee any circumstances in the near future in which this statutory recognition of human rights would be changed.

Conclusion

In 1974, Prime Minister Edward Heath called an election, asking the electorate, “Who governs Britain?” The answer: “not you”. In 2017, the people were presented with very different choices, but having been asked who we want in charge, we have been equivocal. The Prime Minister’s stated aim of calling this election was to increase stability, but now we are experiencing increasingly uncertain times. However, the above speculations may provide a modicum of assuredness for dispute resolution practitioners. Of course, it may be that, like 1974, we will head back to the polls for a second general election (and, if the Liberal Democrats make their voices heard, a second referendum won’t be far off in the distance). Any predictions?

Practical Law Dispute Resolution Jack Meek

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