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Brexit: a traumatic and turbulent week

01 July 2016

Alexandra Cardenas considers how and when the next prime minister will start the official proceedings of Britain's withdrawal from the EU, and reports on the second reading of the Investigatory Powers Bill. 


Following last week's referendum result to leave the European Union, this week the focus has been on how, and indeed when, the next prime minister of the UK will activate Article 50 of the Lisbon Treaty and start the official proceedings of Britain's withdrawal from the EU. 

While the wider United Kingdom, Europe, and indeed the world have been reeling over the repercussions of a UK outside of the EU and the economic fallout, the Westminster bubble has been dominated by the leadership contest for the Conservative Party following David Cameron's resignation last Friday, and by a Commons-wide loss of faith in Labour leader Jeremy Corbyn, resulting in swathes of shadow front bench resignations and a vote of no confidence in the House. 

It has been a traumatic and turbulent week for both major political parties, which has offered little reassurance to both those inside and outside the UK as to what direction the UK is going next. 

Monday 27 June

Parliament

House of Commons: prime minister's statement

Delivering a statement on the outcome of the EU Referendum, David Cameron said the exercise had been one of the biggest democratic events in the UK's history with 33 million people taking part.

Mr Cameron set out the steps that would take place following the vote. He did not take back any warnings about the risk to the UK economy or the constitutional challenges. The Cabinet had agreed that the outcome of the referendum should be respected, he affirmed.

Hate crimes that had taken place since the referendum result must be stamped out, Mr Cameron said. He noted that a new negotiation to leave the UK would take place under a new prime minister. The outgoing prime minister defended his government's economic record, including reducing the budget deficit and unemployment, alongside strengthening the capital requirement for banks.

He insisted there were robust measures in place from the Treasury and the Bank of England to cope with any shock.

Mr Cameron said the Cabinet had begun the creation of a new EU Unit in the Cabinet Office to lead the process of Brexit. It would report to the whole Cabinet, advising on transitional issues and relationships with the world from outside the EU.

Chancellor of the Duchy of Lancaster Oliver Letwin would be the minister leading on the process and would not play any part in the Conservative leadership election.

Mr Cameron said he had held discussions to bring all devolved administrations into the process. The UK and Irish governments would meet that week to discuss issues around the common border area.

'The British government will not trigger Article 50 at this stage […] that is something for the next prime minister', he told the House.

Mr Cameron said the UK should not turn its back on the rest of the world.

'I think the country requires a new prime minister and a Cabinet to take it in this direction', the prime minister said.

He wanted to see Britain remain respected abroad and tolerant at home.

Written Question answered - legal representation

Christina Rees MP (Labour) tabled a number of questions put forward by the Law Society on unrepresented defendants to the secretary of state for justice, specifically: 

1. What steps the government has taken to provide guidance to unrepresented defendants.

2. What proportion of unrepresented defendants were unrepresented because they (a) failed to meet the legal aid merits test, (b) failed to meet the legal aid means test and (c) chose to defend themselves in the latest period for which figures are available. 

3. How many unrepresented defendants there were in the (a) magistrates' courts and (b) Crown courts.  

4. What steps the government has taken to monitor the proportion of defendants who are unrepresented. 

The minister for the courts and legal aid, Shailesh Vara MP, responded with the same answer for all four questions, that:

Data on the representation status of defendants in the Crown Court is published as part of the annual Criminal Court Statistics. 

Read the report

The representation status of defendants in magistrates' courts is not recorded. Data on whether unrepresented defendants meet legal aid means and merits tests, and whether they chose to defend themselves, is not available. 

House of Lords: Investigatory Powers Bill - second reading

The second reading of the Investigatory Powers Bill took place in the House of Lords on Monday and legal professional privilege (LPP) was discussed by a number of peers. 

The Law Society briefed peers ahead of the debate. Ten peers raised the arguments on LPP included in the briefing, and the Society was mentioned seven times in the debate, including by the advocate general for Scotland. 

Lord Rosser, who is leading for the Labour Party in the Lords, said that questions about the provisions in relation to LPP had been raised by the Law Society and the Bar Council.

Lord Pannick (Crossbench) emphasised that LPP belongs to clients, not to lawyers. He stated that:

  • the Joint Committee 'rightly accepted' the evidence from Colin Passmore of Simmons & Simmons for the Law Society that protection of LPP in relation to all categories of acquisition and interference addressed should be included on the face of the Bill
  • the Bill must require prior judicial authorisation for the targeting of privileged materials or if the authorities have reason to believe that they will be intruding on legal advice
  • authorisation should be given only under exceptional and compelling circumstances
  • after the authorities have obtained privileged information, they should be prohibited from retaining it unless they obtain judicial authorisation within the scope of the iniquity exception
  • the government also want to allow the authorities to listen in to legal advice and to use privileged information where there is no reason to think that the iniquity exception applies. In Lord Pannick’s view, this would inevitably deter clients from speaking frankly to their lawyers and therefore undermine the rule of law. 

Lord Lester of Herne Hill (Lib Dem) mentioned the concerns raised by the Law Societies of all four corners of the UK noting that the mere prospect of surveillance creates the risk of a chilling effect on openness of communications with a lawyer. He pointed out that the Bill should forbid deliberately targeting legally privileged communications. There is also a need for safeguards to ensure that any legally privileged communications intercepted accidentally or incidentally are immediately destroyed.

Lord Butler of Brockwell (Crossbench) also noted that protection of legal privilege needed further consideration.

Lord Hennessy of Nympsfield (Crossbench) said that he was prepared to take very seriously the Law Society's arguments about the crucial ability of individuals to consult their legal advisers in confidence.

Lord Carlile of Berriew (Lib Dem) reiterated that the government needed to continue to consider LPP protection.

Lord Beecham (Lab) also mentioned the joint policy briefing and the UK law societies.

Lord Thomas of Gresford (Lib Dem) noted that LPP is concerned with the public interest, not personal privacy. He agreed with Lord Pannick in saying that when the commissioner is considering exceptional and compelling circumstances, the warrant must require that there is a probable cause for iniquity. 

Baroness Kennedy of the Shaws (Lab) expressed concern that the definition of 'exceptional and compelling circumstances', and the draft codes of practice that had been put together, set the bar too low. She highlighted the risk is that the law could enable and encourage the routine acquisition, examination and retention of legally privileged communications. She also said that the Law Society, the Bar Council, Liberty and Justice were all pressing for amendments.

Baroness Hamwee (Lib Dem) noted that LPP was something that she felt particularly strongly about as a lawyer. She was concerned that the potentially chilling effect had not been addressed properly.

The advocate general for Scotland (Lord Keen of Elie) (Con) accepted the analysis of LPP that was advanced by peers. He confirmed that he was going to meet representatives of the Bar Councils and the Law Societies this week to discuss the scope of the provisions within the Bill with regard to LPP.

Tuesday 28 June

Parliament

House of Commons: Justice Select Committee - legal services regulation

The Law Society's chief executive Catherine Dixon gave oral evidence at a one-off session of the Justice Select Committee which focused on legal services regulation, along with chair of the Bar Council, Chantal-Aimee Doerries QC. 

Themes covered included: 

  • Current regulatory settlement including the role of Legal Services Board
  • Alternative Business Structures
  • Standing of England and Wales as jurisdiction of choice
  • Regulator shopping 
  • Separation of professional bodies and regulators
  • Access to justice 
  • Unbundling 
  • Use of the title lawyer
  • Online courts
  • McKenzie friends 
  • Standards of the profession 
  • CMA review 
  • Future of Legal Services

Key points made by the CEO were that: 

• It is imperative that the regulatory framework protects consumers and the public interest - these issues were carefully thought through as part of the Clementi review.

• The system seems to be working broadly effectively. It is also relatively recent - some changes are still being embedded. 

• In light of this we don't think that now is the time to embark on changes to legal services regulation. The next few months will take us through a period of unprecedented change.

• We do have a future vision for legal services regulation - if government is still minded to change. 

• The current definition of regulation is too broad. Regulators should concentrate on applying consistent regulatory rules to protect consumers across the legal services market and the profession owning and driving standards. 

• If the regulators focused on regulating the market there would be an opportunity to reduce the number of regulators reducing costs.

Wednesday 29 June

Parliament

Written Questions answered - personal injury

Former shadow justice minister Andy Slaughter (Labour) tabled a number of questions to the Ministry of Justice on the potential effect of changes to personal injury law, and on the recoupment of NHS treatment costs. 

Responding, the minister for human rights, Dominic Raab MP, stated that the Ministry of Justice received and analysed data from numerous sources when formulating the announcement in the chancellor's autumn statement, and that it will continue to work with a wide range of stakeholders including other government departments, solicitors and insurers in taking forward the new reforms. 

He went on to say that the government will consult on the detail of these measures in due course, and that the consultation will be accompanied by a detailed impact assessment. 

Thursday 30 June

Parliament

House of Commons: debate - reforming the law on homicide

Member of the Justice Select Committee Alex Chalk MP (Conservative) led a debate in the House on reforming the law on homicide.

Mr Chalk started by stating that the problem is that the law lacks a rational or defensible structure, and referenced a 2006 report which stated that the law of homicide is 'a rickety structure set upon shaky foundations'. He went on to say that the problem is that the current laws of homicide create injustice. 

The solution, he said, was that there needs to be a split between the current offence of murder into two categories, one of first degree murder and another of second degree murder, and that manslaughter should remain as before, albeit more tightly circumscribed.

Read the full transcript for the debate

Debate - Land Registry

A backbench business debate took place on the privatisation of Land Registry in the House - the Law Society provided a briefing to a number of MPs prior to this. All of the speakers in the debate spoke to keep Land Registry in public hands. This includes contributions from Conservatives, Labour, Green, and SNP MPs. 

A number of MPs, including Conservatives who noted that they are supportive in principle of privatisation, were vocal in saying that the Land Registry could not be compared to other recent privatisations such as Royal Mail and RBS.

The Law Society was mentioned seven times within the debate by four MPs: 

• Richard Drax MP (Con, South Dorset) - Mr Drax said that 'the Law Society - a highly respected organisation with no vested interests - has opposed the proposed sell-off' along with the CMA. 

• Alan Johnson MP (Lab, Kingston upon Hull West and Hessle) - Mr Johnson noted the Law Society as one of a number of organisations that have argued that there is some case for the Land Registry to stay as an asset in public ownership. 

• Dr Roberta Blackman-Woods MP (Lab, City of Durham) - Dr Blackman-Woods named the Law Society, and a number of other institutions, as having expressed their unease at privatising the Land Registry. 

• Nia Griffiths MP (Lab, Llanelli) - Ms Griffiths mentioned the Law Society four times and noted the concerns raised by Jonathan Smithers, then deputy vice-president of the Law Society, during the previous consultation on the Land Registry. 

David Lammy's office (the debate sponsor) was told informally by the minister from the Department of Business, Innovation and Skills who responded, George Freeman MP, that he had decided not to call a vote at the end of the debate as he personally was not particularly keen on privatising the Land Registry. This was reflected in the minister's comments as he repeatedly noted that the government had not made a decision on the issue - they were listening to parliamentarians' concerns and that the government had to make the case for the problem it was trying to fix. 

Friday 1 July

Nothing to report.

Tags: Investigatory Powers Bill | politics | Westminster weekly update | 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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