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Investigatory Powers Bill debate continues during purdah

10 June 2016

While many government departments languish in purdah, the parliamentary debate around the Investigatory Powers Bill continues. Alexandra Cardenas considers the issues.


While government departments are still in purdah before the EU referendum on 23 June, Parliament reconvened on Monday, starting with the Investigatory Powers Bill reaching report stage and debated in the House of Commons. The Law Society was referenced on multiple occasions, and MPs raised our arguments on legal professional privilege, demonstrating the importance of this issue. 

Monday 6 June

Parliament

House of Commons: Investigatory Powers Bill - third reading

The Investigatory Powers Bill was debated in the House of Commons on Monday as it progressed to its report stage. Legal professional privilege (LPP) was discussed numerous times - the Law Society briefed MPs ahead of the debate, with eight from across the political spectrum, raising our concerns and advocating our arguments. The Society was mentioned seven times in the debate by members of the House and the solicitor general. 

It is clear that as a result of the work we have been doing on this issue, the government and parliamentarians are taking heed of our concerns and it is firmly on the radar of the Ministry of Justice. It is  it looks promising that both the solicitor general and security minister John Hayes confirmed their intentions to engage with us and the Bar to address these concerns.

The main points raised were:

• Bob Neill MP, chair of the Justice Select Committee, said that he was grateful to the solicitor general for recognising the importance of LPP. He also asked whether he will continue to work with the Bar Council and the Law Society to ensure that the practical application of LPP is properly monitored. He also explicitly made the point that privilege belongs to the client, not to the lawyer.

In his response, the solicitor general said that he will be meeting representatives of the Law Society this week. He added: 'It is perhaps a little unfortunate that those particular proposals were not crystallised prior to today's debate, but there will of course be more time. If clear proposals come forward - I am sure that they will - they can be subject to full, proper scrutiny in the other place'.

• David Davis MP (Con) said that the erosion of LPP 'is the single biggest erosion of liberty in this country over the past decade and a half. If the Bill is to meet its requirements, it is vital that such reforms are found. Bluntly, I ask my hon. and learned Friend to ensure that proposals come forward whether or not the Law Society comes up with any'.

The solicitor general replied that he is working hard with expert bodies that have great interest and knowledge and recognise the overwhelming public importance of the preservation of LPP: 'I am glad to say that that dialogue will continue and will allow for meaningful scrutiny and debate in the other place'.

• Andy Burnham MP, shadow home secretary, highlighted that there has been not much progress on LPP. He pointed out that the Bar Council and the Law Society have expressed serious concerns about the fact that the provisions would weaken privacy protections, but those concerns were not adequately reflected in the Bill. 

The solicitor general reiterated that he will be meeting the Law Society on Wednesday.

• Joanna Cherry MP, shadow SNP Westminster group leader for justice and home affairs, also expressed serious concerns about the protection of LPP: 'It is not just the Bar Council and the Law Society of England and Wales that are worried about this; the Law Society of Scotland and the Faculty of Advocates have also made representations. Government members may curl their lips, but LPP is not there to protect lawyers, just as parliamentary privilege is not there to protect politicians. It is there to protect people who consult lawyers, and those people are our constituents. There is a longstanding convention in England and Scotland that legal communications are privileged, save for the iniquity exception. That is not reflected in the Bill and it needs to be'.

• Harriett Harman MP, chair of the Joint Committee on Human Rights, stressed on the important role played by lawyers, who were able to hold the Government to account: “we do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that LPP is properly sorted out.”

• Alistair Carmichael MP, shadow Lib Dem home affairs spokesperson, said he remained 'enormously concerned' that even at this stage of the Bill, various professional bodies, including the Faculty of Advocates and the Law Society of Scotland, remained unpersuaded that the government's efforts have been sufficiently robust. 

• Geoffrey Cox QC MP (Con), a qualified barrister, addressed the point made by the minister who said there was some margin where LPP could be overridden, even where the iniquity exception did not apply. He asked under what circumstances, other than the iniquity exception, LPP will be overridden: 'that would be a radical and fundamental change to the legal protection given to the privilege of those conversing and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the minister's mind, and how would that square with current legal authority on the subject?'

• Rt Hon John Hayes MP, the security minister, confirmed that 'as the shadow secretary of state recommended, we will engage in discussion without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect LPP'.

Employment tribunal fees - oral questions

Following on from a meeting with the president, Philip Davies MP (Conservative) a member of the Justice Select Committee, tabled a question to the secretary of state for justice:

'To ask the secretary of state for justice, what assessment his department has made of the effectiveness of the methodology used to calculate the employment tribunal fees increase in preventing a reduction in the number of cases coming to tribunal.'

The minister answering, Dominic Raab MP, stated that: 

'The Ministry of Justice is currently undertaking a post-implementation review of the impact of the introduction of fees in the Employment Tribunals. The review will report in due course.'

Tuesday 7 June

Parliament

House of Commons: smalls claims - oral question (HM Treasury)

SNP MP Steven Paterson raised his concerns about 'ambulance chasing law firms' and asked for an update of the government's plans to clamp down on this practice. 

Responding, economic secretary to the treasury, Harriett Baldwin, said that steps had already been taken to reform this area that would remove the right to minor cash claims for injuries such as whiplash. 

Personal whiplash claims - written answer

Conservative MP Chris Philp asked the chancellor of the exchequer what steps the government is taking to reduce the number of personal injury whiplash claims. 

Economic secretary to the treasury, Harriett Baldwin, answered by stating that the coalition government had previously implemented reforms to reduce costs and strengthen the medical evidence process to reduce fraudulent claims. She went on to state that: 

'Despite that progress, the present government remains concerned about the number and cost of whiplash claims, which is why further reforms were announced in the chancellor's Autumn Statement in November 2015. These new reforms will remove the right to compensation for pain, suffering and loss of amenity from minor whiplash injuries, and reduce legal costs by raising the small claims limit for personal injury claims to £5,000. The government will consult on the detail of these reforms in due course, with a view to implementing them as soon as the necessary legislation is in place.'

House of Commons: conveyancing - Westminster Hall debate

Conservative MP Will Quince tabled a Westminster Hall debate on the conveyancing process. The government will be launching a call for evidence in this area in the coming months. 

• Will Quince MP mentioned that the Law Society had attempted to curb the 'considerable administrative burden' around checking the title and undertaking relevant searches and surveys. He noted that there is 'considerable merit' in clarifying the extent of a conveyancer's obligation to the client and mortgage lender. 

• The minister responding for the government, Dominic Raab MP, referred to Veyo, and said that attempts to provide an 'all-encompassing secure electronic environment' for members of a chain to communicate had not been successful and that it 'is clearly a difficult nut to crack.'

House of Lords: Magistrates Courts' ICT - written answer

Shadow justice spokesperson Lord Beecham tabled a question to the Ministry of Justice on whether it is allowed for magistrates to use their own technology in court, and what assessment they had made of whether consistent advice is being given in all magistrates' courts about the issue.

Civil justice and lords justice minister Lord Faulks responded saying that HMCTS has already provided secure bench devices to help magistrates view sensitive case information and other material digitally in court. Magistrates are allowed to use their own equipment to access public and non-sensitive material in accordance with guidance issued by the senior presiding judge.

Wednesday 8 June

Nothing to report.

Thursday 9 June

Nothing to report.

Friday 10 June

Parliament

House of Commons: legal aid scheme - written answer

Plaid Cymru home affairs spokesperson Liz Saville Roberts tabled a number of questions on legal aid to the justice secretary on what assessments the Ministry of Justice has made of the effect on applicants for legal aid in cases of domestic violence and what requirements victims need to provide in terms of written evidence.

The courts and legal aid minister Shailesh Vara MP responded by saying that the government is clear that victims of domestic violence must have access to the help that they need, including access to legal aid. 

He reiterated that the Ministry of Justice has begun work with domestic violence support groups, legal representative bodies and colleagues across government to gather data and further develop their understanding of the issues facing victims of domestic violence when applying for legal aid.

Tags: Investigatory Powers Bill | politics | 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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