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Westminster update: Criminal duty solicitors, AI and Brexit

24 April 2018

Last week we published new data which shows a looming crisis in the numbers of criminal duty solicitors, which could leave many individuals unable to access their right to a solicitor and free advice. 


You can view the data in an interactive heatmap, use an online tool to write to your MP to raise your concerns, and find out more information about our campaign on our website.

The Secretary of State for Culture, Media and Sport, Rt Hon Matt Hancock MP, spoke at the Law Society at the London Blockchain Conference last week. He stated that the Law Society "has often been a loud voice for fairness and reform" He added "I know the Law Society has carefully considered the legal implications of distributed systems, having published a report on blockchain just last year." Mr Hancock referenced the value of lawtech indicating that if the right frameworks are developed, it could lead to reduced legal costs and better ease of access for those wanting to use legal services. Similarly, the House of Lords Select Committee on Artificial Intelligence (AI) published a report on the implications of AI which quoted the evidence submitted by the Law Society and adopted some of our recommendations. During the inquiry we said that new developments in artificial intelligence do not yet need specific new laws to control possible harmful effects, which was echoed by the Committee.

In Parliament, last week saw the European Union (Withdrawal) Bill begin Report Stage in the House of Lords, where the Government was defeated on an amendment. You can write to your MP and ask them to urge the government to negotiate and secure the continued rights of lawyers to practise, establish and have rights of audience in EU member states after Brexit by using our quick online tool.

In the Lords there were oral questions on the availability of legal aid, where Peers from across the political spectrum spoke against cuts to legal aid and in support of a comprehensive review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

This week in Parliament has a strong focus on both Brexit and wider justice issues.

This week will also see the Lord Chancellor face questions in the House of Commons and the Lord Chief Justice will also present evidence in the House of Lords.  The Financial Guidance and Claims Bill finishes its remaining stages in the Commons while the Civil Liability Bill begins its process in the House of Lords. The Law Society has briefed Peers regarding the Bill and will be following proceedings carefully.

On Brexit, we will see the 2nd and 3rd day of Report Stage of the European Union (Withdrawal) Bill. There will be a significant backbench business debate on customs and borders, being led by several select committee chairs.

This week in Parliament

Monday 23 April

House of Lords

  • European Union (Withdrawal) Bill; Report Stage (Day 2)
  • Oral question on the appointment of the new Chair and members of the Social Mobility Commission (Lord Lennie)

Tuesday 24 April

House of Commons

  • Justice oral questions
  • Financial Guidance and Claims Bill; Remaining stages
  • Westminster hall debate on the regulation of independent financial advisers (Kevin Hollinrake MP)
  • International Trade and Treasury Select Committees joint oral evidence session on the economic effects of trade policy
  • Treasury Select Committee oral evidence session on the UK's economic relationship with the EU

House of Lords

  • Civil Liability Bill [HL]; Second Reading
  • Oral question on encouraging the adoption of artificial intelligence in the NHS (Lord Holmes of Richmond)
  • Communications Committee oral evidence session on the internet, to regulate or not regulate?
  • European Union Committee oral evidence session on the Post-Brexit UK-EU relations with the CBI, the TUC and the City of London Corporation

Wednesday 25 April

House of Commons

  • Treasury Select Committee oral evidence session on the work of the Chancellor of the Exchequer with the Rt Hon Philip Hammond MP
  • Home Affairs Select Committee oral evidence session on the Windrush children with the Home Secretary, the Rt Hon Amber Rudd MP

House of Lords

  • European Union (Withdrawal) Bill; Report Stage (Day 3)
  • Oral question on action to promote freedom of religion or belief as part of the human rights agenda to be discussed at the Commonwealth Summit (Baroness Berridge)
  • Constitution Committee oral evidence session on the Lord Chief Justice
  • EU Home Affairs Sub-Committee oral evidence session on Brexit and the proposed UK-EU security treaty

Thursday 26 April

House of Commons

  • Backbench business debate on a motion on customs and borders

House of Lords

  • EU Internal Market Sub-Committee oral evidence session on Brexit and the SMEs

Friday 27 April

House of Commons

  • Employment and Workers' Rights Bill; Second Reading (Stephanie Peacock MP)

Last week in Parliament

Monday 16 April

House of Lords

The House of Lords Select Committee on Artificial Intelligence (AI) published a report on the implications of AI - following an inquiry on this subject.

The Law Society responded to the inquiry, we are quoted in the report and a number of our recommendations were taken on board.  The Gazette covered the launch and an article is available here .

Among the recommendations and observations from the report:

  • New developments in artificial intelligence do not yet need specific new laws to control possible harmful effects – a point which was made by the Law Society during the inquiry.
  • The prejudices of the past must not be unwittingly built into automated systems. The Government should incentivise the development of new approaches to the auditing of datasets used in AI, and also to encourage greater diversity in the training and recruitment of AI specialists.
  • It is not currently clear whether existing liability law will be sufficient when AI systems malfunction or cause harm to users, and clarity in this area is needed. The Committee recommended that the Law Commission investigate this issue.
  • The Government needs to draw up a national policy framework, in lockstep with the Industrial Strategy, to ensure the coordination and successful delivery of AI policy in the UK.
  • The government to convene a global summit by the end of next year to develop a common framework for the ethical development and deployment of artificial intelligence systems. A cross-sector AI Code to be established, which can be adopted nationally, and internationally. The Committee's suggested five principles for such a code are:
    • Artificial intelligence should be developed for the common good and benefit of humanity.
    • Artificial intelligence should operate on principles of intelligibility and fairness.
    • Artificial intelligence should not be used to diminish the data rights or privacy of individuals, families or communities.
    • All citizens should have the right to be educated to enable them to flourish mentally, emotionally and economically alongside artificial intelligence.
    • The autonomous power to hurt, destroy or deceive human beings should never be vested in artificial intelligence.
  • In time, the AI code could provide the basis for statutory regulation, 'if and when this is determined to be necessary.'
  • The Chairman of the Committee, Lord Clement-Jones (Lib Dem, former DLP Piper UK Managing Partner), said 'the UK has a unique opportunity to shape AI positively for the public's benefit and to lead the international community in AI's ethical development, rather than passively accept its consequences.' He will speak at the Law Society's AI and Ethics event at Hogan Lovells on 27 April.

Tuesday 17 April

House of Commons

Westminster Hall debate on future trade remedies after the UK leaves the EU

Tuesday saw a Westminster Hall debate on future trade remedies after Brexit. This debate was led by Conservative MP Jack Brereton.

In the debate, speaking about the opportunities beyond Brexit, Brereton said: "global Britain starts from a solid economic base, underpinned by a world-renowned and hugely attractive legal system with sound governance rules that has been hard built over centuries."

Elsewhere in the debate, International Trade Minister Greg Hands MP answered the specific points put to him by previous speakers about the forthcoming Trade Remedies Authority and constituency-focussed issues.

Hands also declined to give any information about when the Government might announce the Report Stages for the Trade and Customs Bills, both of which have not been debated since 1 February.

Wednesday 18 April

House of Commons

General debate on industrial strategy

The Government led a general debate in the House of Commons on the Industrial Strategy. The Law Society briefed MPs ahead of this debate.

In introducing the debate, Business Secretary Greg Clark MP noted:

  • New technologies, such as artificial intelligence and the digitisation of manufacturing, have played a part in what is being described as a fourth industrial revolution. He said we have some of the most innovative thinkers and practitioners in AI and the use of data.
  • 'People know the UK is a hotbed for new ideas; and we have 'a deserved reputation for… respected institutions and the rule of law.'
  • The industrial strategy will bring the biggest increase in research and development 'that we have ever seen in this country'.

Some further highlights:

Automation and employment – James Heappey MP (Conservative) criticised the Labour Party's position on artificial intelligence and said that they have an 'outright fear of automation'. Matt Warman MP (Conservative) noted that new technologies are placing 'whole professions at the risk of extinction', drawing comparisons with the 19th Century industrial revolution. He said that Parliament has the same 'duty to cab drivers, lorry drivers and, increasingly, to white collar professionals such as accountants and lawyers.'

Data protection - Heappey went on to say that the UK needs to lead on regulating for the data challenges that come with an internet-of-things economy, with data points 'all over the place bringing huge amounts of very personal data into the possession of private companies'. He said 'self-learning AI algorithms will be able to discern things' about the way in which we live our lives that are really very intimate and emphasised we need to protect consumers from that.

Brexit - The Minister with responsibility for professional services, Richard Harrington MP refuted a comment from the Shadow Business Secretary Rebecca Long Bailey MP that there was no guidance for sector deals.

The Opposition's response - Shadow Business Secretary Rebecca Long Bailey MP identified five problems the economy is facing:

  • Productivity – she noted that growth levels are low
  • Economic growth stagnation – she said these were lower than G7 counterparts
  • Wage stagnation – she also noted that 'insecure employment' is 'rife'
  • Uncertainty – she said Brexit and our current takeover regime means that parts of our economic framework do not encourage certainty
  • Inequality – she highlighted regional concerns and comparative examples with European counterparts.

Long-Bailey also highlighted that, in her view, low investment in skills by the Conservative government, low investment in infrastructure and a lack of focus on local industrial strategies (blaming a shift in the responsibilities to local enterprise partnerships).

House of Lords

European Union (Withdrawal) Bill – Report Stage (Day 1)

The House of Lords held its first Report Stage debate on the EU (Withdrawal) Bill. Read the full debate.

Clause 1,2,3 and 4 were agreed by peers. The Bill will have its second (of six) debates at Report Stage on Monday 23 April.

Peers will then conclude discussion of Clause 5, 6 and Schedule 1 of the Bill which relate to the retaining of EU law.

The customs union amendment will remain part of the Bill throughout the rest of Report Stage and will next be debated in the Commons as the Bill begins 'ping pong' in the summer.

A summary of the key points from the debate is below:

  • The Law Society was mentioned once in the debate by Conservative Peer Baroness McIntosh of Pickering. Speaking to Amendment 8 in her name, on the status of at least 23 EU directives adopted, but not implemented, before exit day, Baroness McIntosh said:

"A second category of directives falls within the remit of this amendment, which are broadly packages of directives…This has been brought to our attention in a briefing from the Law Society of England. It is particularly concerned that there is no legal basis or mechanism as yet for Ministers to bring any measures into UK domestic law that are part of a package of EU legislation into which the UK will have had input as an EU member state and to which we agree. It is its recommendation that Ministers should be given powers to bring certain types of EU legislation into domestic law if it forms part of a package as this will reduce the impact on businesses and help them to prepare better."

  • The amendment would make sure that all EU directives adopted, but not yet implemented, before the UK's withdrawal from the EU will remain binding in UK domestic law. EU directives which this will apply to include amendments on tax avoidance and financial instruments. Baroness McIntosh stated that the purpose of the amendment was to seek further clarification from the Government regarding the steps that they were undertaking to provide clarity to the status of various categories of EU law. Responding for the Government, Justice Minister Lord Keen of Elie stated that whilst most direct EU legislation will apply shortly after it is adopted, certain may apply in a staggered way. He stated that if the date of application falls after the UK's exit from the EU, those provisions will not be retained by the Bill in UK domestic law. Amendment 8 was withdrawn.
  • Customs union amendment: As expected, the Government were defeated on a cross-party amendment to its EU (Withdrawal) Bill on the issue of continued membership of the EU customs union.
  • The House of Lords voted in favour of an amendment to Clause 1 of the EU (Withdrawal) Bill, requiring the Government to lay before Parliament the steps it is taking to negotiate "an arrangement which enables the UK to continue participating in a customs union with the EU." The amendment, therefore, does not require the Government to negotiate continual membership of the existing EU customs union. Others interpret the amendment as only requiring the Government to make a statement outlining its position.
  • This is the first time the Bill has been amended in the Lords. The amendment passed 348 to 225.
  • The amendment was tabled by former Conservative Party chairman Lord Patten of Barnes, Labour's Brexit spokesperson in the Lords Baroness Hayter of Kentish Town, Baroness Ludford (Liberal Democrat) and the author of Article 50, crossbench peer Lord Kerr. The amendment was spoken to by peers across the House.
  • Speaking for the Government, Brexit Minister Lord Callanan argued against the amendment and stated that the Government would not re-consider its stance or present a compromise amendment at the Bill's Third Reading in the Lords. He stated that remaining in a customs union with the EU would remove the UK's ability to operate an independent trade policy post-Brexit, adding that the Government was committed to negotiating an "ambitious customs arrangement with the EU", which would maintain frictionless trade with the EU.
  • It is expected that the Government will seek to remove the amendment, when the Bill returns to the Commons in the summer.
  • Enhanced protection for certain areas of EU law: The Government were also defeatedon Labour amendment 11, inserted after Clause 3 of the Bill. The new clause would mean that secondary legislation used to amend certain retained EU law would be subject to an enhanced scrutiny procedure. This includes retained EU law relating to employment and equality rights, health and safety protections, and consumer and environmental standards. The amendment passed 314 to 217.  
  • Speaking for the Government, Lord Callanan stated that the Government was committed to upholding key rights and protections enshrined in EU law and confirmed that they would be bringing forward amendments which would strike the right balance between protecting retained EU law from erosion and allowing them to have sufficient flexibility to ensure that they can deliver an operative domestic statute book. Lord Callanan stated that, whilst he did not support the Labour amendment, it would not contradict the Government's legislative objectives.

Lords Constitution Committee session on Parliament's role in relation to the terms of Brexit

The House of Lords Constitution Committee held a session on Parliament's role in relation to the terms of Brexit. The full proceedings can be viewed here.

The witnesses were Steve Baker MP and Suella Braverman MP, both Parliamentary Under-Secretaries of State at the Department for Exiting the European Union (DExEU).

The key points from the session included:

  • Meaningful vote: Baker stated that the Government was committed to offering Parliament a meaningful vote on the terms of the final Brexit deal and that this should comprise of a resolution in both Houses of Parliament.
  • Future relationship: Baker stated that the Government was of the view that the vote on the final Brexit deal should be both a vote on the negotiated withdrawal agreement as well as the broad terms of a future UK-EU relationship.
  • CRAG: Baker noted that under the provisions in the 2010 Constitutional Reform and Governance (CRAG) Act, which lays out the procedures upon which international treaties are ratified, the Commons takes precedence over the Lords. Baker stated that the CRAG provisions stipulate that if the Lords pass a resolution against ratifying a treaty, the Government can respond by making a statement as to why the treaty should be ratified and proceed with the ratification process beyond further opposition from the Lords. This was in comparison to the Commons where MPs have the power to indefinitely delay a treaty's ratification.
  • "No deal" outcome: Baker stated that the choice facing Parliament would be between voting for the UK to withdraw from the EU on the terms that the Government had negotiated or withdrawing from the EU on a "no deal" basis.
  • Timing of vote: Baker stated that the Government intended to bring a vote on the final Brexit deal "as soon as possible" after the negotiations between the UK and the EU conclude. However, he did not commit to a precise timeframe for Parliament's scrutiny of the final Withdrawal Agreement.
  • House of Lords: Baker stated that he did not expect the House of Lords to vote down the final Brexit deal, if that deal had gained approval from the House of Commons. However, when asked by Lord Judd what the constitutional significance of such a scenario would be, Baker stated the will of Commons should take precedence over the decision by the Lords and that the Government would work to ensure that the final deal was passed by both Houses.

Thursday 19 April

House of Lords

Oral question on the availability of legal aid

There were oral questions in the House of Lords regarding the availability of legal aid.

We briefed peers ahead of the session, including Lord Beecham who we assisted with further statistics at his request.

The transcript of the session can be found here and a short summary is below:

  • Baroness Bloomfield of Hinton Waldrist (Conservative) asked what steps the Government is taking to ensure sufficient availability of legal aid and whether criminal barristers receive adequate fees to ensure they function properly.
    • Responding, the Minister Lord Keen of Elie said that the Government recognises the importance of maintaining access to justice, and that the Government is undertaking an evidence-based review of LASPO and will publish our findings later this year. He described the criminal Bar as one of the vital pillars underpinning the rule of law and said that its contribution should be fairly rewarded.
  • Lord Beecham (Labour) asked about advice deserts, both geographical and where legal aid is no longer available. He asked whether the Government will restore legal aid and advice currently denied to people of limited means. 
    • Responding, the Minister Lord Keen of Elie noted that at present 133 of the 134 housing and debt procurement areas for legal aid have provision, and that there is provision for telephone advice for housing issues. He said the review will take account of the reports by Lord Low and Lord Bach.
  • Baroness Butler-Sloss (Crossbencher) asked about whether the Government will consider the Criminal barrister situation.
    • Responding, the Minister Lord Keen of Elie noted that the changes to the Advocates' Graduated Fee Scheme (AGFS) was developed in conjunction with the profession.
  • Lord Marks of Henley-on-Thames (Liberal Democrat) asked about the annual savings of £950m from LASPO, which was originally anticipated to amount to £450m, and whether the extra money will be made available following the review?
    • Responding, the Minister Lord Keen of Elie clarified that the figures arise in a comparison between 2010 and 2016.
  • Lord Hodgson of Astley Abbotts (Conservative) asked about whether the LASPO review will cover third-party litigation.
    • Responding, the Minister Lord Keen of Elie said that third-party litigation funding is a matter of contract between two parties and that the Government would 'be slow to interfere in that contractual process.'
  • Lord Howarth of Newport (Labour) asked about LASPO denying access to justice and the impact on a wide number of individuals.
    • Responding, the Minister Lord Keen of Elie said that access to justice is a fundamental common-law right and that the Government seek to ensure that there is a legal aid scheme that is affordable but allows for access to justice.

Secretary of State for Culture, Media and Sport speech at the Law Society on blockchain, LawTech and regulation

The Secretary of State for Culture, Media and Sport, Rt Hon Matt Hancock MP, spoke at the Law Society at the London Blockchain Conference, hosted by Tech UK and law firms Rosenblatt and FisherBroyles and financial advisers Cork Gully.

The Secretary of State name-checked the Law Society several times throughout his speech, referenced our report on blockchain and the value of lawtech.  The full speech is available here.

  • On the Law Society: He stated that the Law Society is "one of our oldest and most distinguished professional bodies, has often been a loud voice for fairness and reform".  He added "I know the Law Society has carefully considered the legal implications of distributed systems, having published a report on blockchain just last year."
  • Blockchain main areas. The Secretary of State spoke about three areas of public life where blockchain has huge potential:
    • Legal and regulatory systems: He referenced the value of lawtech by saying: "Lawtech is a field where blockchain provides real opportunities. There are many potential uses, like creating smart contracts, protecting intellectual property and fighting money laundering. This is an area of digital I'm particularly passionate about - how technology can blast open access and make life better for everyone… If we develop the right frameworks for lawtech, this could lead to reduced legal costs and better ease of access for those wanting to use legal services."
    • Financial sector : He stated that the UK's financial regulators are leading the world in encouraging innovation. The Government's Fintech Strategy, published just last month, sets out how innovation will be encouraged further. This includes developing machine-readable rules for financial regulation and undertaking work with major banks to develop shared standards for fintech partnerships. A Cryptoassets Taskforce has also been set up, consisting of the Treasury, Bank of England and Financial Conduct Authority which will be reporting in the Summer.
    • Government services: Blockchain technology holds real potential to make Government services more efficient. He added that blockchain can give users more transparency about their data and that there is the opportunity for users of Government services to be able to control access to their personal records and know who has accessed them.
  • Regulation. The Secretary of State added that the UK should play its part in making sure blockchain technology is developed in a way that benefits us all. He stated that where technologies rub up against regulatory barriers, regulators should be alert and responsive and supporting the deployment of new technology where there are obvious benefits. He said: "we want our regulators to carry out their essential roles - preventing harm, providing certainty to businesses and trust to citizens - without stifling innovation."
  • Law reform: The Law Commission has committed to looking at this through their 13th programme of law reform, to see how smart contracts can be used in our legal system and what the implications of blockchain are for data protection.
  • Collaboration. He stated that he wants to hear ideas about how the Government can help drive blockchain forward, be it in lawtech or any other part of our economy.

Question or comments? Contact the Public Affairs team at parliamentary@lawsociety.org.uk or 020 7320 5858.

Tags: Westminster weekly update

About the author

Alexandra Cardenas is Head of Public Affairs and Campaigns at the Law Society. Public Affairs manages the relationships with parliament and government. She is a dual qualified solicitor in England and Wales (2014), and Colombia (2002). Prior to the Society, she practised as a human rights lawyer and worked at Macmillan Cancer Support and Animal Defenders International.

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