This week, both Houses will continue their focus on the impact of the UK's withdrawal from the EU. Secretary of state for exiting the EU, David Davis MP, will face scrutiny and a call for more detail on the UK's Brexit strategy at exiting the EU oral questions on Thursday.
In relation to justice, the House of Commons will debate equality of access to justice in the criminal justice system. The Law Society will be briefing MPs ahead of the debate.
Last week saw the chancellor's first fiscal announcement but there were few new announcements for the justice sector. The government reiterated their plans to reduce the number of whiplash claims and officially confirmed that they will no longer look to privatise the Land Registry. Within the statement, there was also confirmation of a Justice Bill although few specifics were given on what this would contain.
On Friday, the government announced plans to review the recently increased immigration and asylum fees. From today, all applicants will be charged fees at previous levels. Those who had paid the new fees will be reimbursed. The government will also bring forward secondary legislation to formalise these measures as soon as possible. In the meantime the changes will be effected through the use of the lord chancellor's discretionary power to remit or reduce fees.
The Law Society's director of public affairs, Robert Khan gave evidence to the Lords Constitution Committee on Wednesday on the legislative process, particularly focusing on pre-legislative scrutiny.
Public affairs manager
This week in Parliament
Tuesday 29 November
House of Commons
- Westminster Hall debate - Immigration rules for refugee family reunion - Thangam Debbonaire
Wednesday 30 November
House of Commons
- Westminster Hall debate - Equality of access to justice in the criminal justice system - Gerald Jones
- Exiting the European Union Select Committee - The UK's negotiating objectives for its withdrawal from the EU with:
- Dr Virginia Acha, executive director for Research, Medical and Innovation, Association of the British Pharmaceutical Industry
- Fergus McReynolds, director of EU Affairs, EEF, The Manufacturer's Organisation
- Miles Celic, chief executive officer, TheCityUK
House of Lords
- Oral questions - Immigration regime for EU citizens following the UK's withdrawal from the European Union - Lord Green of Deddington
- EU Home Affairs Sub-Committee - Brexit: UK-EU movement of people with:
- Mr Jonathan Portes, research fellow, National Institute of Economic and Social Research
- Ms Madeleine Sumption, director, Migration Observatory
Thursday 1 December
House of Commons
- Exiting the European Union oral questions
House of Lords
- Debate - Options for the UK's future relationship with the EU following the referendum - Lord Liddle
Monday 21 November
Prime minister's speech to the CBI Conference
The prime minister (PM), Theresa May MP, gave a speech to the CBI Conference. Within the speech she specifically mentioned the UK as a global leader in 'professional services from architecture to accountancy from law to consulting'.
During the Q&A, the PM hinted at the possibility of a transitional deal with the EU. She noted that she understood business did not want a 'cliff-edge' scenario and that ensuring this doesn't happen will be part of the work the government do in terms of negotiating with the European Union.
The main points of the speech were:
- Support for free markets - The PM stated her support for free markets, value capitalism and 'backing' business but noted that we must work to keep the people's faith in these things. She noted that many people feel they are not getting their share of wealth created and argued the behaviour of a few individual businesses and business leaders was undermining the 'reputation of the corporate world.'
- Business and Brexit - The PM noted that withdrawal from the EU creates uncertainty for business but said it would take time to get the UK's negotiating position clear. She noted that she wanted an early agreement for the status of UK nationals in Europe and EU nationals in the UK.
- Opportunities from Brexit - The PM said that Brexit was an opportunity to 'do new business with old allies and new partners'. She said there were benefits from negotiating with partners directly and setting our own rules through 'new and dynamic trading agreements'.
- Industrial Strategy - On the industrial strategy she stated that it was not about 'propping up failing industries or picking winners' but creating the conditions where winners can 'emerge and grow'. She noted that a green paper on the strategy will be published by the end of year and a white paper will be published early next year.
- Corporate governance - The PM noted that the government will shortly publish its plans to reform corporate governance in a green paper which will include 'executive pay and accountability to shareholders, and proposals to ensure the voice of employees is heard in the boardroom.' She specifically went on to say that she will not mandate works councils or direct appointments of workers or trade union representatives on boards but wants to find a model that works.
Tuesday 22 November
House of Commons
Justice Select Committee - Lord Chief Justice's Annual Report 2016
Today the lord chief of justice (LCJ), Lord Thomas of Cwmgiedd, discussed the findings of its Annual Report before the Justice Select Committee. The main points were as follows:
Legal services regulation
- Questioned about his recommendation in the report that the judiciary should be represented on the boards of regulatory bodies, the LCJ said that tough standards of ethical behaviour and competence should be required, particularly in relation to litigators of the professions that have rights of audience in the court.
- He mentioned the case of law firms which did not provide enough supervision to their trainees, giving them responsibility for cases they could not handle.
- Asked about how many approved regulators there should be, he said the only thing that mattered was that they must be effective and not too expensive. He also added that 'independence is important, but not independence for its own sake.'
- The LCJ said that the judiciary remained very concerned. He noted that the criminal justice system was a fundamental part of our society and the family courts. He noted that all governments had attempted to make litigants pay more. However, he added that, whilst one could agree that litigants should be asked to pay something for the use of the court, fees should never be a barrier to justice.
Litigants in person
- The LCJ argued that there is a link between the rise in court fees and the number of litigants in person. Another factor could be the cost of lawyers.
- He noted that there had been a rise in private law cases since legal aid had been taken away. He also noted that mediation seemed not to be effective without the help of lawyers, as people often needed an independent adviser.
- He called for an inquiry into the impact of withdrawal of legal aid for family law cases as there was not enough evidence.
- The LCJ said that the problem could be addressed by either providing a legal adviser (equivalent to a duty solicitor) or by providing unbundle services to assess the mediator's advice.
Value of the legal profession
- The LCJ said that it was important for the judiciary to work with organisations such as the CityUK to maintain England and Wales as jurisdiction of choice. He noted that not enough people understood how valuable the legal profession was to the economy as a whole and that the financial and legal profession were closely linked.
Online court (OC)
- In relation to the OC, the LJC said that a system analysis had found that every court case had the same procedure, so one IT system was the way forward. He also said that the OC was absolutely central for this project of unifying IT systems.
- Asked about the issue of those who did not have access to the internet, he argued that the HM Courts & Tribunals Service (HMCTS) was conducting a study to assess the depth of the problem. He restated that access was a people's right.
- He also confirmed that the Briggs report was under 'hectic consideration' by both the government and judiciary.
Asked about how the project of unifying the crown and magistrate courts would work in practice, the LCJ admitted that this was an incredibly difficult, long term project. He noted that they should be structurally aligned areas and flexible and that there was not enough feedback between the two.
- The LCJ made it clear that judicial decisions were essential for the development of the courts and mentioned the financial list as an example of how decisions were producing useful authority for the market.
- He noted that arbitration did not provide clear hierarchy of precedent and it was done in private. However, he said that sometimes settling a case could be better than fighting it.
- He also highlighted the importance of having courts cooperating and learning from each other. In this respect, England and Wales have a great advantage as they recruit excellent people, are innovative and well placed to deal with the competition from other jurisdictions.
- Alberto Costa asked him about a comment he made previously about arbitration creating impediment to the development of common law. The LCJ argued that arbitration is 'always behind the curve' and that serious commercial disputes would be better dealt with in the court, as the system was more efficient and cheaper. He also reiterated the point that judicial decisions are public and that they are key to develop the law and provide certainty to industry.
- The LCJ said that he was very keen to encourage judicial involvement to understand the value of the institution. For example, open days worked very well.
- When asked about diversity, he said that the he was acutely aware of the problem and was one of his priorities. He noted that it was vital that judges reflected the community they represent. In particular, it is important for magistrates to spend time with their communities.
Exiting the EU Select Committee - The UK's negotiating objectives for its withdrawal from the EU
The exiting the European Union Committee held its second oral evidence session as part of its inquiry on 'the UK's negotiating objectives for our withdrawal from the EU', taking evidence from Shanker Singham, director of Economic Policy and Prosperity Studies, The Legatum Institute; Dr Robin Niblett, director, Chatham House; and Stephen Booth, acting director and director of Policy and Research, Open Europe.
Witnesses agreed on the need to negotiate transitional arrangements. They suggested that the two-year article 50 process could be used to build the framework of the future UK-EU arrangement, with this being built on during the transitional phase which could last up to three or four years. Singham noted specifically that if the UK leaves the Customs Union or the EEA, there will need to be specific transitional arrangements for financial services for a specific period. He suggested that a zero-tariff deal could be negotiated as a transitional arrangement.
House of Lords
Debate - European Union Committee's report 'Brexit: parliamentary scrutiny' and Constitution Committee's report 'The Invoking of Article 50'
The House of Lords considered the European Union Committee's report 'Brexit: parliamentary scrutiny' and the Constitution Committee's report 'The Invoking of Article 50'. Due to the similarity between the two motions, the House debated them together.
On article 50, Lord Lang of Monkton said his Committee was not qualified to say whether or not article 50 would legally need to be triggered by parliament, however it did conclude that it would be 'constitutionally inappropriate' for the executive to act on an advisory referendum without explicit parliamentary approval. He conceded that government made clear the result of the referendum would be carried out, and that parliament must honour that decision.
On parliamentary scrutiny of Brexit, Lord Boswell of Aynho outlined his report's argument that government should provide effective, structured parliamentary scrutiny of the substance of Brexit. He said that accountability 'after the fact' was not sufficient and, while accepting there is a balance to be had, that both houses of parliament should have the opportunity to debate and approve the negotiating guidelines, at least in outline. Lord Boswell added that the EU Committee and its six sub-committees intend to produce as many as 20 reports on the key issues surrounding Brexit over the coming months.
Wednesday 23 November
House of Commons
Chancellor of the exchequer Philip Hammond delivered his 'first and last' autumn statement yesterday, which will be replaced by a spring statement from 2018. This will be in response to the Office for Budget Responsibility (OBR) reports.
As expected, announcements focused on tackling the productivity gap and addressing the housing shortage whilst tackling inequality. In particular, the chancellor focused on policies which support the economy during the transition period following the decision to leave the European Union.
The main points were:
- Whiplash reform - The chancellor reiterated the Ministry of Justice (MoJ) announcement to reduce 'the unacceptably high number of whiplash claims' and allow insurers to cut premiums. He also announced that the government will bring forward supporting legislation in the Justice Bill and expects insurers to pass on savings. The government will also raise insurance premium tax from 10 per cent to 12 per cent from June 2017. The move represents a doubling in the tax rate on home and motor insurance premiums within the past two years.
- Legal support - From April 2017 all employees called to give evidence in court will no longer need to pay tax on legal support from their employer. The government stated that this will help support all employees and ensure fairness in the tax system, as currently only those requiring legal support because of allegations against them can use the tax relief.
- Prison safety and wider reforms to the justice system - The government will provide up to £500 million of additional funding to the MoJ to enable the recruitment of 2,500 extra prison officers to improve prison safety. It will also fund wider reforms to the justice system.
- Tax - As already announced, the government will introduce a new penalty for any person who has enabled another person or business to use a tax avoidance arrangement that is later defeated by HM Revenue & Customs (HMRC). As a new measure, the chancellor announced the government will consult on a new legal requirement for tax intermediaries to notify HMRC of the structures and the related client lists. It will also legislate to extend HMRC's data-gathering powers to money service businesses exploiting the hidden economy.
- Land Registry - The government has confirmed that it will be scrapping the privatisation of the Land Registry: 'Following consultation, the government has decided that HM Land Registry should focus on becoming a more digital data-driven registration business, and to do this will remain in the public sector. Modernisation will maximise the value of HM Land Registry to the economy, and should be completed without a need for significant Exchequer investment.'
Other measures announced include:
- A new £23 billion Productivity Investment Fund over the next five years
- A new £2.3bn Housing Infrastructure Fund
- £1.1bn of funding for English local transport infrastructure and more than £1bn in digital infrastructure
- A clampdown on salary sacrifice arrangements from April 2017 - childcare vouchers and cycle to work scheme will be protected
- National Living Wage to rise from £7.20 an hour to £7.50 from April next year
- A cut to the Universal Credit taper rate from 65 per cent to 63 per cent from April
- A ban on upfront fees to tenants charged by letting agents
- £1.8bn from Local Growth Fund to English regions
Our press statement can be found here.
Joint Committee on Human Rights - What are the human rights implications of Brexit
Courts and legal aid minister Sir Oliver Heald QC gave evidence to the Joint Committee on Human Rights on the human rights implications of Brexit. Sir Oliver said that the government was seeking an early agreement on the rights of UK citizens resident in EU countries and vice versa and would seek to maintain current rights.
On the British Bill of Rights, Sir Oliver said that this would be brought forward, but the timelines was 'in due course'. The government is currently assessing the impact of Brexit. Once this was concluded they would engage with the devolved administrations and carry out a 'full consultation.'
Sir Oliver also said that he could not envision the UK remaining subject to the European Court of Justice as part of the negotiations. Sir Oliver said that when the PM committed to protecting workers rights, this related to the workers not the rights.
House of Lords
Constitution Committee - The legislative process
Director of public affairs, Robert Khan, gave evidence to the House of Lords Constitution Committee on the legislative process. The other witnesses were Michael Clancy, director of Law Reform at the Law Society of Scotland, and Andrew Walker QC, vice chairman-elect at the Bar Council.
The Committee asked a number of questions on the quality of drafting of legislation, opportunities for pre-legislative scrutiny and any effects of 'bad' legislation on members of the legal profession.
- Robert said that the Law Society agreed with the definition of 'good law' recommended by the Office of Parliamentary Counsel; 'necessary, clear, coherent, effective and accessible'.
- He highlighted that whilst the quality of drafting is not necessarily a problem for solicitors in itself, the sheer volume and increasing complexity of legislation is problematic, particularly in areas such as immigration and tax law.
- To improve pre-legislative scrutiny, he suggested that the government could publish more draft bills, highlighting that the Home Office's decision to do this with the Investigatory Powers Bill had led to positive stakeholder engagement.
He also highlighted that the short window for consultation that is often given by government during the policy making process makes it difficult for stakeholders to assess the likely impact. He highlighted the current Ministry of Justice consultation on personal injury reforms as a very recent example and noted the increasing use of short consultations in general.
- To improve codification and referencing to previous legislation, he suggested that the Keeling schedules used by parliamentary counsel to check for this could be published with the other bill documents so that legal professionals could scrutinise these and identify any practical issues, and welcomed the idea of firmer parliamentary guidance about the correct balance between the relative use of primary versus secondary legislation.
Thursday 24 November
Bach Access to Justice Commission - interim report
The Bach Commission, chaired by the former shadow justice minister Lord Bach and commissioned by Labour Leader Jeremy Corbyn MP, is leading an inquiry on access to justice. The interim report made the following findings:
- There has been a huge decrease in the numbers entitled to legal aid because of the civil legal aid scope cuts
- The Exceptional Case Funding provisions have failed to deliver an adequate safety net for those most in need
- There has been a significant fall in the number of not for profit advice agencies, and public legal education is ineffective
- Court and tribunal fee increases are preventing people from pursuing legal claims
- The Legal Aid Agency bureaucracy is 'excessive and the legal aid scheme is too complicated'
- Technological innovation in respect of justice provision lags considerably behind other jurisdictions in the developed world.
The report set out proposals for a set of minimum standards to ensure access to justice. It also recommended the creation of a new post of chief inspector of justice.
Our press statement can be found here.
House of Lords
Debate on armed forces claims
The House of Lords debated limiting the number and nature of claims against the Ministry of Defence and UK armed services personnel arising out of future armed conflict abroad. Many of the speakers were in favour of reducing the number and nature of claims. A number of peers expressed concerns about the government's plans:
- Lord Hope of Craighead said the previous compensation scheme was insufficient to ensure they were properly compensated, that he questioned the scale of the 'problem' in terms of number of claims and suggested the scope to derogate from the ECHR was limited.
- Baroness Kennedy of the Shaws said noted her concern that the campaign is a 'retreat from legal obligations and our moral responsibility for wrongs committed by our military is built on a false narrative.'
- Lord Thomas of Gresford said that human rights claims have resulted in a material improvement in the equipment issued to soldiers.
Defence minister Earl Howe said that further information on combat immunity would be forthcoming from the MoD within the next month.
Friday 25 November
Immigration and asylum fees
Justice minister Oliver Heald MP published a written statement announcing that, although the government's general principle that users of the court system should be charged remains unchanged, the immigration and asylum fees will reviewed.
The announcement follows the government's consultation on 21 April 2016 proposing to raise fees in the Immigration and Asylum Chamber of the First-tier Tribunal, and the consultation on introducing fees for appeals in the Immigration and Asylum Chamber of the Upper Tribunal and for permission to appeal applications in both the First-tier Tribunal and the Upper Tribunal.
In response to the concerns raised by stakeholders about the current fee levels, the government has decided to review the immigration and asylum fees 'to balance the interests of all tribunal users and the taxpayer and to look at them again alongside other tribunal fees and in the wider context of funding for the system overall.'
- From today, all applicants will be charged fees at previous levels. Those who had paid the new fees will be reimbursed.
- The government will bring forward secondary legislation to formalise these measures as soon as possible. In the meantime the changes will be effected through the use of the lord chancellor's discretionary power to remit or reduce fees.
The government has also decided to extend the fee exemptions offered in the First-tier Tribunal to include:
- Those in receipt of a Home Office destitution waiver in respect of their initial application
- Parents of, and those with parental responsibility for, children receiving support from local authorities
- Children in local authority care
- Those appealing a decision to revoke their humanitarian protection or refugee status
The government will consult in due course on proposals to bring forward any new plans for Tribunal fees, including in the Immigration and Asylum Chambers of the First-tier and Upper Tribunals. Our press statement can be found here.