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Brexit: a shift in policy?

29 April 2016

Alexandra Cardenas discusses the home secretary's speech on Brexit and considers questions over legal aid and clinical negligence.


Please find below a summary of this week's key political developments and announcements of interest to the Law Society.

Monday 25 April

Government

Ministry of Justice: home secretary Theresa May's speech on Brexit

Home secretary Theresa May delivered her first speech in support of remaining in the EU. She addressed the arguments put forward by the Leave campaign and explained why they were not convincing.

The highlight was that she argued that British people should make a distinction between leaving the EU and leaving the European Convention of Human Rights (ECHR). 

Presenting what was a significant shift in the government's policy, which has so far insisted that it had no plans to leave the ECHR, she said that: "the ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals [...]. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn't the EU we should leave but the ECHR and the jurisdiction of its Court". 

Other points made to note are: 

• International, multilateral institutions exist to facilitate negotiations between nations, promote trade, ensure cooperation, and create rules and norms that reduce the risk of conflict. Therefore, under such a framework, no country can be absolutely sovereign.

• These institutions invite nation states to cede some sovereignty in a controlled way, to prevent a greater loss of sovereignty in an uncontrolled way.

• Britain could cope outside the European Union. The question is not whether it could survive without the EU, but whether it is better off in or out.

• Without the kind of institutional framework offered by the European Union, bilateral deals between every single member state would have been impossible to reach.  

• Without Britain, the balance of power in the Council of Ministers and European Parliament would change for the worse. The liberal, free-trading countries would find themselves far below the 35 per cent blocking threshold needed in the Council, while the countries that tend towards protectionism would have an even greater percentage of votes.  

• The disintegration of the EU would cause massive instability among the UK's neighbours and biggest trading partners: "with the world economy in the fragile state it is, that would have real consequences for Britain".

• Brexit would be fatal to the union with Scotland: "I do not want the people of Scotland to think that English Eurosceptics put their dislike of Brussels ahead of our bond with Edinburgh and Glasgow".

Read the speech in full

Foreign and Commonwealth Office report on human rights and democracy

This new report, led by foreign secretary Philip Hammond and foreign office minister for human rights, Baroness Anelay, provides an overview of activity in 2015 by the FCO and its diplomatic network to defend human rights and promote democracy around the world. 

Download the full report

Parliament 

House of Commons - written answers: clinical negligence

Helen Jones MP tabled a question asking what estimate the Department of Health has made of the annual costs incurred in clinical negligence legislation due to the failure of the NHS Litigation Authority to (a) properly investigate claims early in the process and (b) offer a realistic settlement at the earliest possible time, and if there will be a statement. 

In his response, care quality minister Ben Gummer MP stated that the role of the National Health Service Litigation Authority (NHS LA) is to deal efficiently and effectively with clinical negligence cases against the NHS as set out in the framework agreement with the department. The NHS LA discharges its functions by:

• paying justified claims promptly and appropriately

• defending claims without merit

• undertaking appropriate and proportionate risk management activities with its members with a view to assisting them to minimise their claims and thus improve patient and staff safety, and

• ensuring that the lessons learned from claims and the other activities of the NHS LA are appropriately shared in order to help reduce adverse incidents in the future. 

Civil proceedings

Chi Onwurah MP asked the secretary of state for justice what discussions he has had with the Law Society and other representatives of the legal profession on the issuing of seven day notices of legal proceedings at the same time as invoices for payment to consumers.

Legal aid and courts minister Shailesh Vara said that ministers have had no discussions with the Law Society or other representatives of the legal profession on this issue.

Tuesday 26 April

Parliament

House of Commons: Justice Oral Questions

The Law Society president was specifically quoted by Labour MP Nick Thomas-Symonds. On a question around the planned changes to the small claims limit and general damages, Thomas-Symonds asked if the government had taken into account president's comments that he was "gravely concerned" that the changes will undermine the rights of ordinary citizens to obtain compensation for injuries that were no fault of their own.

Human rights minister Dominic Raab MP responded by saying that the Law Society will be protecting the interests of its members and has a right to do so. He stated that the government will be looking into the issue "in the round".

Other points of interest include:

• European Convention on Human Rights - A number of Labour and SNP MPs asked the justice secretary to clarify the government's position on the ECHR following the home secretary's statement on Monday. Raab stated, although this could not be ruled out forever, the government has no plans to withdraw from the ECHR. 

• Legal aid for victims of domestic violence - Labour MP Jess Phillips quoted Women's Aid findings that 25 per cent of domestic violence sufferers have been directly questioned by their perpetrator. Justice minister Caroline Dineage MP stated that the government had supported the vulnerable through measures such as giving evidence behind a screen and via videolink. She also noted that the government was acting to increase the timeframe to put forward evidence from two to five years and will reform the evidence criteria to include financial abuse.

• Legal aid for those suffering from mental health issues - Labour MP Imran Hussein asked about the effect of legal aid cuts on those who struggle to represent themselves due to mental health issues. Shailesh Vara said that the judiciary was specifically trained to support vulnerable people and changes to the courts system are also intended to help the vulnerable.

• Changes to personal injury - A number of questions were asked about the upcoming consultation on changes to personal injury law. No further indication on the date for the consultation was given and the government repeated lines about the cost of "spurious, frivolous and trivial claims" to motor insurance premium holders. Human rights minister Dominic Raab MP said the government wants to make sure that access to justice is maintained for important and meritorious claims. Conservative MP David Nuttall MP raised the point that the courts can already strike out fraudulent claims and wondered why the innocent majority should be penalised from gaining compensation due to the potentially criminal few.

• Courts modernisation - Shailesh Vara stated that significant progress has been made to modernise the courts. He cited examples including reduction of paper bundles, wi-fi and use of shared drives. He also noted the use of a digital case system at Southwark Crown Court and a new national automated rota system for magistrates. Liberal Democrat MP John Pugh asked what was being done to get buy in from the legal profession on the changes to the court system and the minister stated the Ministry of Justice said they were are working closely with the judiciary, lawyers and the public.

• Civil Justice Council proposal for online dispute resolution - Conservative MP Lucy Frazer QC MP asked the government for their thoughts on the Civil Justice Council's proposal for an online dispute resolution system for low value claims. Vara stated that the government wants the most up-to-date and modern courts system in the world and therefore was ruling nothing out.

• Guardianship - Labour MP Rachel Maskall asked if the government would be legislating on the guardianship of missing persons in the Queen's Speech but the minister declined to speculate.

• Residence test - Labour MP Valerie Vaz raised the recent Supreme Court judgment on the residence test. Shaliesh Vara stated that the government were disappointed in the findings of the Supreme Court, particularly as the government had made some exceptions to the residence test following calls from the House in the last Parliament. He stated that millions of people in the public believe that a person should have a connection with the UK to gain legal aid. The government said it would await the written judgment from the Supreme Court and reflect upon it.

• Increase in fees for asylum cases - On the recently announced increase in court fees, Shailesh Vara MP stated that the court system must be able to pay for itself. He also noted the scheme had exemptions for vulnerable people.

• Client account interest - Labour MP Rob Marris MP asked the government if it had considered whether interest made on client accounts could be used for legal aid as is done in some parts of North America. Shaliesh Vara said that the regulation of the legal profession is independent from government.

Oral question - personal injury law

Labour MP Yvonne Fovargue asked the minister of justice what assessment has been made of the potential effect of planned changes to personal injury law and whiplash claims on access to justice. She also asked what independent evidence the government had of the fraud culture.

In his response, Dominic Raab said that the government remained concerned about the number and cost of whiplash claims, and impact of unmeritorious claims. Raab also made the point that savings within the insurance sector would be passed onto customers. 

Wednesday 27 April

Nothing to report.

Thursday 28 April

Nothing to report.

Friday 29 April

Nothing to report.

Tags: Westminster weekly update | European Union | access to justice | Brexit

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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