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Security concerns following the Paris attacks

20 November 2015

Richard Messingham discusses the possibility of the government fast tracking the draft Investigatory Powers Bill into law.


Last Friday's terrorist attack in Paris is having, as expected, significant implications for our own debate on national security. When addressing the Commons, the prime minister hinted that the government may fast-track the draft Investigatory Powers Bill into law. The draft Bill was introduced at the beginning of November, and is currently not expected to become law until the end of 2016, but we have yet to see if events have changed this timetable.

Cameron's view seems to be shared by senior figures in the other parties. The day after the attack, Lord Carlile, Liberal Democrat peer and former independent reviewer of terrorism legislation until 2011, and shadow foreign secretary Hilary Benn MP, have both expressed support for the idea of accelerating the parliamentary approval of the draft Bill. However, interestingly, the home secretary Theresa May has adopted a more cautious approach, arguing that it is important that the Bill receives proper scrutiny.

What happened in Paris may also have consequences for the budget deals struck with departments ahead of the Comprehensive Speeding Review (CSR) next Wednesday. In particular, the Home Office may be spared from draconian spending cuts with the support of some backbench Conservative MPs, including London mayoral candidate Zac Goldsmith, who have called on Theresa May not to make further cuts to police force budgets.

Whatever last minute outcome there is to the public and private negotiations between the HM Treasury and key spending departments with unprotected budgets such at as the MoJ and Home Office, the results will become clear when chancellor George Osborne makes his combined autumn statement and CSR review next week.

Monday 16 November

House of Commons: Home Office questions

During the session, several questions have been asked about the steps that the government is taking to ensure that investigatory powers used by the police and the security services are transparent and subject to oversight.

In her response, home secretary Theresa May confirmed that the draft Bill will be subject to pre-legislative scrutiny by a Joint Committee of both Houses. Responding to a question about the prime minister hinting at the possibility of speeding up the passage of the draft Bill following the terrorist attack in Paris, she insisted that it is important that the Bill receives proper scrutiny.

May confirmed that the new investigatory powers commissioners will have the necessary resources, including technical expertise, to ensure that they have that support and advice. She also said that it will be possible for them to buy further technical expertise, should they need it.

Read the questions in full

House of Commons - written answers: clinical negligence

Karl Turner MP: To ask the secretary of state for health, what assessment he has made of the propriety of his department overseeing the consultation on a fixed recoverable cost regime in clinical negligence cases when it is the defendant in most such cases.

Karl Turner: To ask the secretary of state for health, what steps he has taken to ensure that claimant lawyers can continue to pursue low-value claims in clinical negligence cases in a fixed recoverable cost regime.

Karl Turner: To ask the secretary of state for health, what estimate he has made of the costs to his department associated with unmeritorious claims resulting from changes to a fixed cost recoverable scheme for clinical negligence.

Karl Turner: To ask the secretary of state for health, what assessment he has made of the effect of introducing a fixed recoverable cost regime in clinical negligence cases on the number of claims brought by claims management companies and litigants in person.

Karl Turner: To ask the secretary of state for health, what assessment he has made of the incentives for defendants in clinical negligence cases to encourage early admissions and settlements.

Karl Turner: To ask the secretary of state for health, what assessment he has made of the effect of claims management companies on the number of unmeritorious claims brought forward in clinical negligence cases.

Ben Gummer (care quality minister): The department is working closely with stakeholders to develop the proposal to introduce fixed recoverable costs. We have undertaken a pre-consultation exercise with a number of key stakeholders, including representatives of claimant lawyers, and are planning an open public consultation shortly. We welcome views on the proposal from all sectors. The consultation documentation, including the Impact Assessment, will be published in early 2016 subject to relevant Committee clearances. We are working upon the assumption that there is nothing about Fixed Recoverable Costs regime which will alter the percentage of unmeritorious claims.

Any scheme proposed will include consideration of the right incentives to support a fairer and quicker process that provides the improvements to the system while maintaining access to justice.

The NHS Litigation Authority reported in their annual report for 2014/15 that it resolves over 4,000 clinical negligence cases annually for no payment of damages and in 2014/15 it saved over £1.2 billion for the National Health Service in rejecting claims which had no merit.

House of Commons - written questions: clinical negligence

Dan Jarvis MP: To ask the secretary of state for health, what estimate he has made of the number of medical negligence cases which may be affected by the government's proposals to introduce fixed recoverable costs in cases worth up to (a) £10,000, (b) £25,000, (c) £50,000, (d) £100,000 and (e) £250,000; and what the average saving he hopes to secure at each level is.

Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the potential effect of fixing recoverable costs in medical negligence cases to a maximum of £250,000 on the accountability of the NHS to the public.

Dan Jarvis MP: To ask the secretary of state for health, whether reducing incidents of negligent care will be the primary focus of the government's proposed package of reforms aimed at reducing costs in medical negligence litigation.

Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the potential effect of fixing recoverable costs in medical negligence cases to a maximum of £250,000 on a claimant's ability to pursue a case.

We will update you when the questions have been answered.

House of Lords - European Union Referendum Bill

The Bill has now reached the Report stage where peers will have further opportunity to examine and make amendments.

Find out more about the Bill

Tuesday 17 November

House of Commons - Westminster Hall debate on criminal courts charge

Labour MP Tulip Siddiq secured debate on the criminal courts charge. It was just a 30 minute debate, which means 15 minutes from the MP, 15 minutes from the minister. Nothing of note was said that hasn’t been said before, including no confirmation that the charge will be scrapped. However minister Shailesh Vara did say that the statistics about the money that has been recovered thought the charge will be published in December.

She mentioned the Law Society: "access to the court system is not, as the government have put it, part of the welfare state. I prefer to agree with the Law Society, which said that the court system should be seen as part of the ... rights and duties that give ... resilience to the society that we live in".

Read the debate in full

House of Commons - Justice Select Committee

The Committee held the second hearing session of the inquiry into courts and tribunals fees, which focused on employment tribunals fees. The Society has submitted written evidence to this inquiry.

Main points:

  • While they were interested in learning more about the impact of the fees on the justice system, the MPs on the Committee were primarily interested in hearing about concrete, alternative proposals to replace the fees if they are scrapped, particularly as most of the witnesses were opposed to fees.
  • Tribunal fees were rejected by pretty much all witnesses on the ground that the tribunal and court system should be considered as a basic public good and therefore accessible to everyone despite their wealth and social background. Fees are currently undermining access to justice and imperil the rule of law.
  • The representatives of Peninsula Business and of the FSB were supportive of the introduction of the fees as a way to stop vexatious claims and to compensate businesses, specially small ones, for the financial loss they may experience when wrongly accused of discriminatory treatment.
  • The point that litigation implies some sort of financial risk for both parties was made several times. Although some of the witnesses were prepared to admit the possibility of charging a small amount of money for the use of the courts, many pointed out that fees and costs are different as in principle and that they should not be confused. Thompsons Solicitors also noted that the power for the tribunal to force the losing party to pay for both sides costs in unsuccessful cases is already an appropriate deterrent for vexatious cases.
  • Many highlighted the significant increase of cases being dropped - about 70 per cent - with no strong evidence that major savings have been made by justice system. Only Peninsula Business and the FSB, as both largely represent employers, welcomed the reduction of claims as a positive sign that the system was successfully discouraging bringing forward illegitimate claims.

A full transcript will take around a week to be published.

House of Commons - Immigration Bill

The Bill is at Committee stage where it is considered for amendments.

Find out more about the Bill

House of Commons - written answers: Investigatory Powers Bill

Owen Thompson: To ask the secretary of state for the home department, in what circumstances a judge could refuse to approve an interception warrant under clause 19(2) of the draft Investigatory Powers Bill.

John Hayes (minister for security): A Judicial Commissioner may refuse to approve any warrant that they believe does not meet the test set out by Judicial Review principles. Judicial Review principles are well established, tested and have been applied by the courts for a long time. The Judicial Commissioner will consider whether the secretary of state’s decision was reasonable, lawful, made fairly, and whether it complies with the European Convention on Human Rights. The Judicial Commissioner's consideration will include a review of the secretary of state's conclusions on necessity and proportionality. The Judicial Commissioner will have final say on whether a warrant can be issued.

House of Lords - Enterprise Bill

The Bill has now reached the report stage where peers will have further opportunity to examine and make amendments.

Find out more about the Bill

House of Lords - written answers: legal aid scheme (children)

Lord Falconer of Thoroton: To ask Her Majesty’s Government how many applications for exceptional case funding (non-inquests) have been made to the Legal Aid Agency on behalf of applicants aged under 18 each year since the scheme began in April 2013; and of those, how many were granted.

Lord Falconer of Thoroton: To ask Her Majesty’s Government how many applications for exceptional case funding (non-inquests) have been made to the Legal Aid Agency from applicants aged 18 to 24 each year since the scheme began in April 2013; and of those, how many were granted.

Read Lord Faulks' answer (PDF)

Wednesday 18 November

House of Commons - Westminster Hall debate on personal injury fraud

The debate was sponsored by Conservative MP Karl McCartney. Chris Philp MP (Con) and Jim Shannon MP (DUP) also took part in the debate. Andy Slaughter MP spoke on behalf of the Opposition and Caroline Dinenage MP (parliamentary under secretary of state for women, equalities and family justice) and Robert Jenrick MP (PPS to Michael Gove) were there in representation of the government.

As expected, McCartney spoke vehemently against solicitors and law firms, and claims management companies, which appear to foment people to commit fraud - although he acknowledged that only a minority of law firms are involved in fraudulent claims. He noted that the SRA is not doing enough to address this issue and called for the judges to take action. He said that "dodgy solicitors and law firms should be investigated and shamed".

Andy Slaughter made the point that it is often the case that insurer companies try to exclude lawyers from the process and have a one-to-one relationship with the victims. He also noted that insurers are often responsible for discouraging the victims to contact a solicitor who plays a key role to judge if a claim in genuine or not.

He referred to the briefing that the Law Society provided ahead of the debate, which expressed concerns that insurers use figures about levels of fraud as it suits them.

In her response, the minister noted that it is often difficult to tell the difference between a legitimate case and an illegitimate one, and it is important to struck the balance between protecting consumers and safeguarding legitimate businesses. She mentioned the positive impact that the Jackson review and the introduction of LAPSO has had to reduce illegitimate claims. Dinenage concluded saying that the government has not ruled out further reform to the market.

Read the debate in full

House of Commons - Short debate on the reform of justice services in Wales

During a short debate, Liz Saville Roberts MP asked a question about the government's proposal to close 11 courts in Wales without undertaking a Welsh language impact assessment, as required by law and under the Welsh language scheme. She then asked the secretary of state to ensure that a Wales-wide assessment is undertaken and that its recommendations are implemented before any decisions are reached on court closures.

Read the debate in full

House of Commons - Justice Select Committee

The Committee has published correspondence it has received from the lord chancellor to the chair of the Committee, Bob Neill MP, giving a brief summary of the MoJ's plans for a review of legal regulation. This letter is as a result of the lord chancellor’s evidence session with the Committee in July, when a new MP Alberto Costa asked if the lord chancellor will be making any post legislative assessment of the Legal Services Act 2007. The lord chancellor has confirmed that a review is being considered, but that it has not yet commenced, and he encourage the committee to wait until any process is started before looking into the issue itself.

Read the the letter (PDF)

House of Commons - Welsh Affairs Committee

Pre-legislative scrutiny of the draft Wales Bill continues.

Find out more about the Committee's work

House of Commons - written answers: clinical negligence

Tom Brake MP: To ask the secretary of state for justice, what discussions he has had with the Department of Health on proposed fixed cost regime change to the civil procedure rules; and what consequences the proposed changes will have on his Department's policies.

Dominic Raab (minister for human rights): My officials are supporting the Department of Health in its consideration of fixed recoverable costs for clinical negligence claims. The government remains supportive of the principle of extending fixed recoverable costs and we continue to consider areas in which implementation might be appropriate and workable.

House of Commons - written answers: legal aid

Andy Slaughter MP: To ask the secretary of state for justice, how many firms have written to the Legal Aid Agency indicating an intention to challenge a decision not to award them a contract in the criminal duty tender; and how many firms have issued legal proceedings in respect of that decision.

Shailesh Vara (minister for the courts and legal aid): Over 1000 bids were received for 527 contracts under this process. Some unsuccessful bidders are challenging the decision not to award contracts to them. 115 claims have been issued by 97 firms. The Legal Aid Agency (LAA) continues to consider the legal proceedings issued by unsuccessful bidders in the crime duty tender.

House of Commons - written answers: trial costs

Catherine McKinnell MP: To ask the secretary of state for justice, how many and what proportion of trials cracked as a result of the prosecution due to (a) insufficient evidence, (b) witness absent or withdrawn, (c) public interest grounds and (d) adjournment refused in (i) Magistrates' courts and (ii) the Crown Court in each year since 2007.

Catherine McKinnell MP: To ask the secretary of state for justice, how many and what proportion of trials were ineffective due to the (a) prosecution being engaged in another trial, (b) prosecution advocate failing to attend and (c) prosecution increasing the time estimate due to insufficient time for trial to start in (i) Magistrates' courts and (ii) the Crown Court in each year since 2007.

Read Shailesh Vara's response

House of Lords: European Union Referendum Bill

The Bill has reached Report stage.

Find out more about the Bill

House of Lords - written answers: fines - surcharges

Lord Falconer of Thoroton: To ask Her Majesty’s Government, further to the written answer by Lord Faulks on 4 November, what was the total value of court-ordered fines that were cancelled in 2014–15.

Lord Falconer of Thoroton: To ask Her Majesty’s Government what was the value of victims’ surcharges (1) imposed, (2) collected, (3) cancelled, and (4) outstanding, for (a) adults, (b) youths, and (c) organisations, in each financial year since 2010.

Lord Falconer of Thoroton: To ask Her Majesty’s Government how many times the victims’ surcharge was (1) imposed, (2) collected, (3) cancelled, and (4) outstanding, for people receiving (a) a conditional discharge, (b) a fine, (c) a suspended sentence, (d) a community sentence, and (e) a custodial sentence, in each financial year since 2010.

Lord Falconer of Thoroton: To ask Her Majesty’s Government what was the value of court-ordered fines that were (1) issued, (2) collected, and (3) cancelled, in each financial year since 2010.

Read Lord Faulks' response (PDF)

Thursday 19 November

House of Commons - written answers: courts closure

Caroline Ansell MP: To ask the secretary of state for justice, what account he has taken of accessibility of digital services for people who do not have access to the internet when considering potential court closures as part of proposals on the provision of the court and tribunal estate; and if he will make a statement.

Shailesh Vara (minister for the courts and legal aid): An impact assessment was published alongside the consultation document. An updated impact assessment will be published with the consultation response, which will assess any further impacts identified from the responses received.

Catherine McKinnell MP: To ask the attorney general, what estimate he has made of the total expenditure on (a) in-house advocates and (b) external advocates in (i) magistrates' courts and (ii) the Crown court in each year since 2010-11; and what the average saving to the Crown Prosecution Service was from using in-house advocates in each of those years.

Read Jeremy Wright (attorney general)'s answer (PDF)

House of Commons - written questions

Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on recoverable costs in medical negligence cases.

Andy Slaughter MP: To ask the secretary of state for the home department, whether her department plans to amend the Act which results from the Investigative Powers Bill in the event of repeal of the Human Rights Act 1998.

We will update you when the questions have been answered.

Free trade and unlocking prosperity - business secretary Sajid Javid's speech at Chatham House

Business secretary Sajid Javid gave a speech at international think tank Chatham House where he discussed the importance of free trade and set out his vision for trade across Europe and around the world. He said that the rise of free trade has been one of the most significant drivers of both economic growth and international development, raising living standards around the world, creating jobs, and fuelling aspiration. He spoke in favour of the Trans-Atlantic Trade and Investment Partnership (TTIP) and the creation of a digital single market.

He concluded: "New technology and new ideas have revolutionised the way we do business and opened up a whole new world of opportunities. Our EU partners can help to break open complex markets overseas, and to acknowledge the weaknesses of the common market. They can work with us to address them, so that the UK and Europe continue to enjoy all the benefits that free and fair trade bring."

Read the speech in full

Friday 20 November

House of Commons: Justice Select Committee - report on criminal courts charge

The Justice Select Committee has called for the government to scrap the criminal courts charge. In a report published today, the Committee has expressed the following concerns:

  • The levels of the charge is grossly disproportionate to the means of many defendants and to the gravity of the offences in relation to which it has been imposed
  • The lack of discretion given to judges and magistrates on whether to impose the charge and if so at what level, creating unacceptable consequences within the criminal justice system
  • The creation of perverse incentives for both defendants and sentencers
  • The detrimental impact on victims of crime and on the CPS from reduced awards of compensation and prosecution costs
  • The capacity of the charge to raise the revenue predicted by the government, and the effect on respect for the legal process of levels of non-payment.

Read the report (PDF)

Tags: politics | Westminster weekly update | court closures | security

About the author

Richard Messingham is head of public affairs at the Law Society. He and his team are responsible for supporting the president and CEO to manage the Society's relationships with Parliamentarians, Ministers, civil servants and other major stakeholders of direct relevance to solicitors.
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