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Is Gove for Brexit?

11 March 2016

Alexandra Cardenas considers the rumours that Michael Gove may become the lead campaigner for the 'Leave' campaign in the EU referendum. 


There are rumours that the lord chancellor may be appointed chair of the Vote Leave campaigning committee, effectively becoming the lead campaigner. The group, led by Gove's former adviser Dominic Cummings, is expected to be designated the official 'Leave' campaign by the Electoral Commission at the expense of Leave.EU and Grassroots Out, the other two outer groups that have the support of Ukip and George Galloway. 

This appointment is important for various reasons. Firstly, it indicates that Michael Gove will be spending more of his time on the referendum campaign, suggesting that he may be less focused on his brief at the Ministry of Justice. Secondly, as many commentators have hinted, such a prominent position will position him even more directly against David Cameron, which raises further questions around Gove's political future in government, should the 'Remain' vote win.

Next week, however, political headlines are likely to shift from the debate on the EU referendum to speculation around what chancellor George Osborne may decide to include in the Budget on Wednesday 16 March. 

Monday 7 March

Nothing to report.

Tuesday 8 March

House of Commons

Justice Oral Questions

We used this opportunity to table three questions on personal injury, the recent Court of Appeal case on domestic violence legal aid, and the residence test. The question on the Court of Appeal case was asked by the Shadow Justice team (below) and the other two questions have been submitted as written questions (we expect the answers in the coming days). 

Law Society figures on Brexit mentioned

The Law Society was specifically mentioned during the questions by Jonathan Djanogly MP (Con), who stated that most commercial law firms and the Law Society believe that the legal services market will lose £1.7bn per year if the UK leaves the EU. 

Responding to the question about the effect of Brexit, courts and legal aid minister Shailesh Vara MP said that the UK has one of the best legal sectors in the world and he was confident the sector would continue to thrive whether in or out of the EU. When questioned about the referendum, Vara repeatedly stated that the position of the government was that the UK is better off within the EU. 

Law Society's question on recent Court of Appeal case on evidence criteria for domestic violence legal aid answered

Margaret Greenwood MP (Lab) and shadow justice minister Andy Slaughter MP questioned the government over its plan about the recent Court of Appeal case on the evidence criteria for domestic violence legal aid. The lord chancellor stated the government wanted to ensure that a revised approach ensured that victims of domestic abuse get the support they require. He noted that the government did not want to rush the changes. A proposal will be published shortly.

Other things to note: 

• British Bill of Rights – Several MPs raised questions about the British Bill of Rights. In response to a question about removing serious offenders from the UK, human rights minister Dominic Raab MP said that the government was particularly concerned about article 8 which he stated was "opaque and elastic". Raab was also critical of organisations who are "scaremongering" about the British Bill of Rights before it had been published, calling them "irresponsible". 

• Employment tribunal fees – Yvonne Fovargue MP (Lab) highlighted the impact of employment tribunal fees on women stating that, since the fees came in, sex discrimination cases went down by 80 per cent and equal pay cases went down by 84 per cent. She asked whether an impact assessment will be done with the government review of employment tribunals but the minister did not commit to publishing one. 

• Pro bono – Lucy Frazer QC MP (Con) highlighted that there were 3,600 barristers who were providing free access to justice through the Bar Pro Bono Unit. Minister Shailesh Vara commended the Bar and the legal profession generally on their pro bono work. He stated that he was pleased by the engagement with legal sector and that they are considering other ways of helping communities. 

• Public legal education – Tom Tugendhat MP (Con) asked the government what it intends to do to increase public understanding of the law. Raab stated that the government would like to bring the law closer to citizens and work to increase knowledge of law and to promote their initiatives through media, digital channels and through targeted campaigns. 

• Guardian status for property rights – Kevin Hollinrake MP (Con) asked when the government will bring in the new legal status of a guardian for property rights of people that go missing. Raab stated that the government is committed to the new status and will introduce it in due course. 

Read the questions and answers in full 

Wednesday 9 March

House of Commons

Westminster Hall Debate on clinical negligence

Sir Edward Garnier QC MP sponsored a Westminster Hall debate on clinical negligence. Garnier urged the government to reconsider its plan to introduce a fixed costs regime for clinical negligence cases in line with the briefing we sent him ahead of the debate. He thanked the Leicester Law Society and the Law Society of England and Wales, as well as the Association of Personal Injury Lawyers (APIL), Society Clinical Injury Lawyers (SCIL), and Bar Council for their assistance with the debate. He also mentioned law firms such as Irwin Mitchell and Slater & Gordon.

Parliamentary under-secretary of state for health Ben Gummer responded on behalf of the government. Shadow legal aid and courts minister Christina Rees MP, shadow work and pensions minister Nick Thomas-Symonds MP, and former EU shadow minister Pat McFadden MP spoke on behalf of the opposition.

In his speech Garnier made the following points:

• It is crucial to find the right balance between saving costs for the NHS and access to justice and proper compensation for patients.

• The Treasury should not be a partisan ally of the Department of Health (DH) as in the long run a poor set of reforms will lead to greater expenses and less public trust in the NHS.

• As the DH is managing the consultation process and the NHS, it is hard to believe this as a fully disinterested exercise.

• In line with the Law Society's message, Garnier argued that the best way to reduce clinical negligence cases is to reduce the number of NHS claims.

• He also made the point contained in our briefing that the NHS LA annual report 2015 is misleading, as there is no breakdown of the costs and an inadequate analysis of the figures regarding lawyers' fees.

• Defending claimants require more work than representing defendants. Proving what went wrong is difficult when the NHS is not willing to share information and systematically hide records.

• Failure to apologise causes claimants to believe that they have to sue the NHS to get justice.

• This generates the perverse behaviour "deny, defend, delay", which should be turned into a virtuous circle of "assess, admit, apologise".

• The government was urged to "think again". In particular, it must reconsider the assessment that a £250,000 claim is a low-value claim, and that there is direct correlation between the complexity of the case and value of the claim.

Ben Gummer's response:

• In his response, Gummer reiterated the official line that the reform intends to balance the interests of "both sides".

• In line with today's announcement made by health secretary Jeremy Hunt MP regarding a range of new measures including an independent Healthcare Safety Investigation Branch and legal protection for anyone giving information following a hospital mistake, Gummer said that the reform intends to encourage a culture to learn from mistakes.

• Despite a significant reduction in stillbirths, the quality of investigation has not improved since the 1990s, and that an increase in litigation doesn't lead to an improvement in investigation.

• The most important thing is to understand what went wrong to prevent other cases from happening. The current system, however, "militates" again a learning system and encourages some claimant lawyers to load costs at the beginning. Reform is therefore necessary to incentivise a learning process at the beginning.

• The cap at £250,000 is based on the Jackson's recommendation. This proposal is, however, subject to consultation.

• Gummer addressed claimant lawyers directly saying that the upcoming consultation is a genuine one and aims to improve the system. He went on warning them from lobbying MPs before the consultation has been published. 

Gummer's point on claimant lawyers lobbying MPs and the continuous delay of the consultation seems to suggest that the DH is struggling to identify a suitable proposal for the fixed costs regime, and was intended to stop stakeholders raising concerns with MPs before the consultation has been published.

Read the debate in full

Thursday 10 March

Nothing to report

Friday 11 March

Nothing to report

Tags: Westminster weekly update | European Union | British Bill of Rights | 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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