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The spectre of May vs. Osborne

06 November 2015

Richard Messingham reflects on a week when the home secretary Theresa May managed to steer clear of significant controversy when she introduced some long awaited changes to the law on investigatory powers.


After last week's tussle with the Lords over the defeat of the statutory instrument implementing the changes to tax credits, the government has demonstrated it is more in 'listening mode' this week with the publication of the Draft Investigatory Powers Bill on Wednesday. As anticipated last week, the home secretary Theresa May revealed the long-awaited draft for pre-legislative scrutiny and public consultation justifying the introduction of the bill as a much needed legal framework for the digital age.

Although many organisations remain concerned with aspects of the bill, including the Law Society, as it is not yet clear that legal professional privilege will receive explicit statutory protection, the announcement was cautiously welcomed by the Labour Party. The shadow home secretary Andy Burnham said that the issue that this proposal tackles goes well beyond party politics, and he said that the home secretary has got the balance right between privacy and security. Even former deputy prime minster Nick Clegg, whose party forced its coalition partners in government to withdraw the so-called 'Snooper's Charter' in 2013, also had to admit that Theresa May had listened to their concerns and significantly toned down earlier proposals.

The introduction of a 'double-lock' on the ministerial approval of interception warrants with judges given a veto before they can come into force was the red line for the Labour Party and other pressure groups, and the home secretary has acknowledged that.

This is an important move from the government which has started to focus its effort on ironing out legislative hurdles that would make it difficult for the bill to be passed in the House of Lords where the government does not have a majority. This result is also a personal success for Theresa May. As the race for the leadership of the Conservative Party is only just getting started, the home secretary has shown her ability to navigate throughout adverse conditions, for example ensuring the support of the opposition on the draft bill. This is in contrast to fellow leadership contender, chancellor George Osborne, who suffered some damage to his generally acknowledged reputation as a master political strategist, following the tax credit controversy in the Lords. 

Monday 2 November

House of Commons written answer: human rights

Andy Slaughter MP: To ask the secretary of state for justice, how many drafts of a proposed British Bill of Rights his department has produced in each year since 2010.

Dominic Raab (minister for human rights): This government was elected with a mandate to reform and modernise the UK human rights framework. We will fully consult on our proposals before introducing legislation for a Bill of Rights and we will set out our proposals in due course.

House of Lords:  Enterprise Bill

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

Read the amendments in full

European Union Referendum Bill

The bill is at Committee stage where it is considered for amendments. Lord Hannay of Chiswick mentioned the Law Society alongside the Bar Council in relation to the renegotiation of extradition agreements.

Read the amendments in full 

Tuesday 3 November

 House of Commons: justice questions

Justice questions took place in the House of Commons. Of particular interest, shadow justice minister, Andy Slaughter asked a question about the mismanagement of the criminal duty tender. In his response, Gove noted that the individual referred to as a whistleblower was merely one voice. According to other sources, it was a well-run process in the tradition that the Legal Aid Agency has upheld for many years now.

On the British Bill of Rights, Dominic Raab said that the government has no plans to leave the European Convention of Human Rights and confirmed that the proposal will cover a broad range of issues, including Article 8. Regarding the criminal courts charge, Michael Gove confirmed that he will continue to listen to the points raised by those who want to abolish the charge. Gove also said that the government is willing to maintain a balanced approach between the taxpayers’ interests and those of offenders

Read the transcript in full 

Written answers: clinical negligence

Tom Brake MP: To ask the secretary of state for health, what assessment his department made of the potential effect on access to justice for victims of clinical negligence before it developed its proposals to introduce a fixed recoverable costs regime for clinical negligence; which other stakeholders were consulted on this matter before those proposals were developed; and what the response of those stakeholders to that consultation was.

Tom Brake: To ask the secretary of state for health, what safeguards he plans to introduce as part of his proposed fixed-cost regime changes to the Civil Procedure Rules to ensure that changes are fair to any side in civil litigation and do not harm access to justice. 

Tom Brake: To ask the secretary of state for health, what assessment he made of the potential effect of his plans for improving patient safety and zero harm on reducing the cost of clinical negligence before taking forward proposals for a fixed-costs regime in clinical negligence.

Tom Brake: To ask the secretary of state for health, what assessment he made of the potential effect of the (a) provisions in the Legal Aid Sentencing and Punishment of Offenders Act 2012 on reducing costs associated with clinical negligence and (b) possibility of the NHS and NHS Litigation Authority causing unnecessary costs in clinical negligence cases before he made his decision to take forward proposals for a fixed-costs regime in clinical negligence.

Ben Gummer (care quality minister): We are planning to consult on the introduction of the fixed cost regime for clinical negligence claims where the damages awarded to claimants are less than £250,000. This forms part of our over-arching objective to minimise adverse incidents and provide an efficient, cost-effective approach to litigation.

In doing this we are seeking to improve patient care by reducing the incidence of clinical negligence, improve customer care by ensuring the National Health Service is responsive to users; and ensure there is an appropriate and cost-effective legal process in place for claimants and defendants. 

In advance of this work a pre-consultation exercise was undertaken with a wide range of bodies representing the views of patients, lawyers, bar organisations, professional bodies, NHS organisations, private healthcare providers and Welsh interests. Issues raised by these organisations included: access to justice, impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012; patient safety; and the avoidance of unnecessary costs in clinical negligence cases. These views will be rehearsed in the proposed consultation document and will inform decisions that are made following the consultation exercise. Respondents will have the opportunity to provide comments on the proposals, which we have been developing with the Civil Procedure Rules Committee.

Written answers: legal aid

Greg Mulholland MP: To ask the secretary of state for justice, what assessment he has made of the potential effect on director conduct should the funding of insolvency litigation change under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Greg Mulholland MP: To ask the secretary of state for justice, what assessment he has made of the potential effect on financial redress for creditors should the funding insolvency of litigation change under the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. 

Greg Mulholland MP: To ask the secretary of state for justice, what assessment he has made of the merits of third-party funding as an alternative to the current funding regime for insolvency litigation. 

Greg Mulholland MP: To ask the secretary of state for justice, what assessment he has made of alternatives to the current insolvency litigation funding regime.

Dominic Raab: An impact assessment was published when the Legal Aid Sentencing and Punishment of Offenders Act 2012 received Royal Assent. The Ministry of Justice is in the process of considering the way forward in relation to the application to insolvency litigation of the no win no fee reforms in part 2 of the act.

Wednesday 4 November

House of Commons: Investigatory Powers Bill

The draft bill was announced in parliament for pre-legislative scrutiny and public consultation. The draft bill includes the following proposals:

  • A requirement of web and phone companies to store records of websites visited by every citizen for 12 months for access by police, security services and other public bodies;
  • Making it explicit in law for the first time the security services’ powers for the 'bulk collection' of large volumes of personal communications data;
  • The introduction of a new 'double-lock' on ministerial authorisation of intercept warrants with a panel of seven judicial commissioners given the power of veto;
  • The existing system of three oversight commissioners will be replaced with single investigatory powers commissioner who will be a senior judge;
  • The prime minister is to be consulted in all cases involving interception of MPs’ communications (In reference to the Wilson Doctrine).

A joint parliamentary committee of MPs and peers is in the process of being established, and the Law Society will be providing evidence to the committee, as well as using other means of bringing the Society’s concerns to the attentions of parliamentarians from all parties.

Written questions

Rosie Cooper MP: To ask the secretary of state for justice, with reference to the proposals on the provision of court and tribunal estate in England and Wales published by his department on 16 July 2015, when the decision was taken to include Ormskirk Magistrates' Court and Family Court in the list of courts earmarked for closure.

We will update you when the answer has been published.

House of Lords: written answers

Courts: Fines

Lord Falconer of Thoroton: To ask Her Majesty’s government what was the total value of fines (1) issued by the courts, and (2) collected, in 2014–15. 

Lord Faulks (minister of state for civil justice): The total value of fines issued and collected in 2014/15 was: 

Fines imposed: £250,740,040

Value of fines imposed and collected in same year of imposition: £84,688,512

Total fines collected (regardless of date of imposition): £161,930,070

The ‘total fines collected’ figure includes the £84.7m collected in the same year of imposition. These figures relate to fines only and not any other financial imposition types.

Fees and charges

Lord Allen of Kensington: To ask Her Majesty’s government what assessment they have made of the impact of the mandatory criminal courts charge on the number of guilty pleas.

Lord Allen of Kensington: To ask Her Majesty’s government what estimate they have made of the number of individuals who are innocent of crimes but have pleaded guilty in order to reduce their liability for the mandatory criminal courts charge since April 2015.

Lord Faulks: Section 55 of the Criminal Justice and Courts Act 2015 places a duty on the lord chancellor to carry out a review of the Criminal Courts Charge three years after implementation of the charge. No such assessment has been made to date.

Lord Falconer of Thoroton: To ask Her Majesty’s government what has been the total value of criminal courts charges (1) issued by the courts, and (2) collected to date; and what estimate they have made of the total cost of enforcement to date.

Lord Faulks: Information on the enforcement of financial impositions is contained within an annex to Criminal Court Statistics Quarterly statistical bulletin published quarterly by the Ministry of Justice. Data relating to the criminal courts charge for the period April to September 2015 will be published on 17 December 2015. This will separately identify the monetary values of the criminal courts charge imposed and collected since 13 April 2015. The cost of enforcing the criminal courts charge cannot be separated from the total cost of enforcing all types of court ordered financial impositions. Enforcement action is taken against the total amount an offender owes and offenders are often ordered to pay more than one type of financial imposition.

 

Thursday 5 November

House of Commons: Immigration Bill 

The bill is at Committee stage where it is considered for amendments. The Law Society's submission was used by several MPs to inform the debate. 

Read the debate in full

Written Answer: Human Rights

Grahame Morris MP: To ask the secretary of state for justice, which articles contained in the Human Rights Act are planned to be omitted from the proposed British Bill of Rights.

Dominic Raab: Our Bill of Rights will protect fundamental human rights, and prevent abuse of the system. The government will fully consult on our proposals before introducing legislation and we will set out our proposals in due course.

 

Friday 6 November

Joint Select Committee on Human Rights

The Joint Committee on Human Rights has formally appointed members from the House of Commons and the House of Lords and elected the chair.

Harriet Harman (Lab) - chair, Fiona Bruce (Con), Karen Buck (Lab), Jeremy Lefroy (Con), Mark Pritchard (Con), Amanda Solloway (Con), Baroness Buscombe (Con), Baroness Hamwee (Lib Dem), Lord Henley (Con), Baroness Lawrence of Clarendon (Lab), Baroness Prosser (Lab), Lord Woolf (Cross-bencher).

Chair of Committee Harriet Harman has written to the lord chancellor setting out several issues which the Committee takes an interest in:

  • Although the government has confirmed its intention to follow the usual 12 week consultation period, this may not be enough to deal with a complicated and contentious issue such as an UK Bill of Rights;
  • The devolved administrations will need to be consulted on any proposals regarding the bill;
  • The Committee would like the government to confirm that it has officially ruled out withdrawing from the ECHR;
  • The Committee would like the government to confirm that the UK will continue to honour its international law obligation under Article 46 of the ECHR.

Tags: Investigatory Powers Bill | Theresa May | George Osborne | politics | Westminster weekly update

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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