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Westminster weekly update: Big wins for the Law Society as Parliament rises for Christmas

21 December 2018

This week saw a win for the Law Society on the Counter-Terrorism and Border Security Bill.


Parliament went into recess on Thursday and will next sit on Monday 7 January 2019.

This week saw a win for the Law Society on the Counter-Terrorism and Border Security Bill. The Society has made a number of representations to Parliamentarians and the government throughout the Bill's passage through both Houses, highlighting the threats the Bill would pose to legal professional privilege. In particular, the Society expressed strong concerns about provisions in the Bill that would allow officers to eavesdrop on confidential legal consultations between solicitors and their clients. On Monday the House of Lords passed amendments, supported by the Law Society, that removed these provisions from the Bill, instead reinforcing the principle that any discussion between solicitors and clients must be fully confidential.

The Law Society was mentioned a total of 13 times in Parliament on Tuesday: twice during Justice oral questions in the House of Commons; twice during the Second Reading of the Mental Capacity (Amendment) Bill; and nine times during a debate in the House of Lords on the Non-Contentious Probate (Fees) Order.

On the latter, the Law Society has expressed its strong opposition to the proposals to hike fees for a grant of probate from the current flat fee of £215 (or £155 if done by a solicitor) to a sliding scale of fees ranging from £250 to £6,000. Although the order was not voted down, the House of Lords passed a motion to 'regret' the imposition of the new fee structure.

On Monday, the Leader of the Opposition Jeremy Corbyn MP announced that he would be tabling a motion of no confidence in prime minister Theresa May. This motion is however distinct from a formal confidence vote in Her Majesty's government, and as a result the government refused to allocate Parliamentary time for the motion to be heard. Despite suggestions that Corbyn would escalate his motion to a full confidence vote, he ultimately declined to do so at this stage.

On Brexit, the government has announced that the delayed 'meaningful vote' on the Withdrawal Agreement will take place in the week commencing 14 January, with debate beginning on 9 January.

And finally, this week saw the Civil Liability Act, the Courts and Tribunals (Judiciary and Functions of Staff Act) and the Homes (Fitness for Human Habitation) Act receive Royal Assent.

Next week in Parliament

  • Parliament will be in recess. Parliament will next sit on Monday 7 January 2019.

This week in Parliament

Monday 17 December

House of Lords

Counter-Terrorism and Border Security Bill Report Stage

The Counter-Terrorism and Border Security Bill returned to the House of Lords on Monday for the second day of Report Stage.

Following representations by the Law Society, two amendments were passed removing provisions from the Bill that undermine legal professional privilege. The Law Society supported these amendments, and was credited with leading the debate on this issue in previous stages of the Bill. The two amendments were:

  • Amendment 36, which adds a provision to the Bill requiring a detainee to be made aware of their right to consult a solicitor from the beginning of a detention. If the detainee requests a consultation with a solicitor pursuant to this right, they cannot be questioned until the consultation has taken place.

  • Amendment 37, which removes provisions from the Bill that would have enabled an official to listen in to a confidential legal consultation between a solicitor and their client.

Below is a summary of further relevant points from the debate.

Legally privileged material

  • Baroness Jones of Moulsecoomb (Green) moved Amendment 34E, which would allow detainees at the border to refuse to hand over to officials materials which are subject to legal professional privilege.

  • Lord Paddick (Lib Dem) stated that he supported the amendment in principle, but noted that this provision could be abused by those with malicious intentions.

  • Responding for the government, Baroness Williams of Trafford (Minister of State for Countering Extremism) stated that the amendment would require officials to take detainees at their word when they allege that materials are subject to privilege, and would not allow them to independently verify such claims. She emphasised that the powers to retain confidential material were subject to the authorisation of the Investigatory Powers Commissioner.

  • Nonetheless, she stated that she recognised the concerns raised by the amendment and pledged to examine whether further safeguards can be introduced through the Schedule 3 codes of practice. Baroness Jones subsequently agreed to withdraw her amendment.

The Bill will next be considered at Third Reading by the House of Lords - a date for this has yet to be announced.

Tuesday 18 December

House of Commons

Justice oral questions

The Lord Chancellor and his ministerial team were questioned during justice oral questions in the House of Commons on Tuesday.

The Law Society were mentioned twice during the session.

Watch the justice oral questions session.

Read the full transcript of the justice oral questions session.

During the session:

Small claims and legal advice on workplace injuries

  • Gerald Jones MP (Labour) asked about the steps the government is taking to ensure that workers can access legal advice on workplace injuries. He went on to ask why the government intends to avoid full parliamentary scrutiny of the proposed changes to the small claims limit by bringing the changes through regulations. Jo Stevens MP (Labour) called for a debate on the proposals on the floor of the house. Desmond Swayne MP (Conservative) questioned the prevalence of advertising for free advice from lawyers in workplace injuries. Shadow Justice Minister Gloria de Piero MP (Labour) welcomed the exemption of vulnerable road users from the proposed small claims limit reforms. She called for an exemption from the small claims limit for those injured in the course of their work.

  • Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP noted that the House have provided scrutiny and that there will be the opportunity to provide further scrutiny. She said that the Statutory Instrument procedure will allow for scrutiny. She said the reforms are concerned with the injury that is suffered, rather than the profession of the individual who sustains the injury. She said the proposals would help people access courts and get justice.

Impact of Brexit on the justice sector

  • David Linden MP (SNP) asked about the potential effect of the proposed EU Withdrawal Agreement on UK-EU co-operation on justice matters, and the relationship with Europol and Eurojust. Chair of the Justice Select Committee Bob Neill MP (Conservative) noted that the Justice Select Committee have published two reports outlining the risks of Brexit for the Justice sector in the event of a no deal. Sir Ed Davey MP (Liberal Democrat) asked whether the Brexit talks on cooperation on justice and security have been concluded, and whether the text on justice and security in the political declaration is legally binding, and how long these talks would take if the deal is passed. SNP Justice Spokesperson Joanna Cherry QC MP (SNP) questioned why the political declaration does not include details of the Schengen Information System Database, or the European Criminal Records Information System. She highlighted concerns from Police Scotland who rely on these tools. Shadow Lord Chancellor Richard Burgon MP (Labour) criticised the government's 'Brexit crisis' and said that planning for future judicial cooperation has suffered as a result.

  • Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP argued that the draft agreement would ensure a smooth and orderly departure from the EU. She argued that it would include an implementation period until end of 2020, during which existing civil and commercial judicial co-operation will continue. She confirmed that cases started before the end of the implementation period will be concluded under existing EU rules and judgments will be enforced. Services and intelligent operations under Europol and Eurojust will continue under mechanisms outlined in the draft political declaration. She noted that the political declaration sets out the framework for the negotiations going forward. Regarding the Schengen Information System Database and the European Criminal Records Information System, she outlined that the prime minister has sought to ensure that the measures which underlay those systems will continue post-Brexit. She highlighted that the Department have received additional monies from the Treasury to prepare for a no deal scenario and other scenarios.

Initiating legal proceedings and legal aid

  • Nigel Mills MP (Conservative) asked about what steps the government is taking to make it easier for people to initiate legal proceedings, and to engage and participate in those proceedings once initiated. Catherine West MP (Labour) criticised the rising number of litigants in person. Jim Shannon MP (DUP) asked about the legal aid review and the legal aid means test, which he argues is denying middle-class families from legal redress. Barry Sheerman MP (Labour) criticised cuts to legal aid.

  • Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said that the government is simplifying many procedures to initiate proceedings. Probate, divorce or money claims are all areas in which the government has simplified the process, enabling people now to claim or open cases online. Video-hearings have been tested in the tax tribunal. She said the government have spent £6.5m supporting litigants in person through the court process. She highlighted that the £1bn modernisation programme will simplify many procedures whether an individual has a lawyer or not. The government is currently reviewing the legal aid system, which will report early in the new year.

Legal aid deserts and access to justice

  • Karen Buck MP (Labour) asked what assessment the government has made of legal advice deserts. She noted that homelessness is up by 70%, and 1 million people do not have access to a legal aid housing lawyer, 15 million people with access only to 1 provider which raises issues of conflict of interest and capacity and called on the LASPO review to address this issue. Derek Thomas MP (Conservative) highlighted the difficulty to access housing legal aid advice across Cornwall. He asked the Minister what can be done to better incentivise lawyers to take on that work. Catherine McKinnell MP (Labour) highlighted the comments of the UN Special Rapporteur on Extreme Poverty and Human Rights regarding legal aid reforms on access to justice, and the impact on vulnerable groups, and called for the LASPO review to reintroduce early legal advice. Wera Hobhouse MP (Liberal Democrat) highlighted the legal aid desert in Bath, where there is only 1 housing legal aid provider. She noted the Law Society's work in this area. Stuart C. McDonald MP (SNP) said that the Law Commission for England and Wales has argued that working people on low incomes are being 'systematically denied their right to a fair trial due to restrictive legal aid rules.' Shadow Lord Chancellor Richard Burgon MP criticised the government's 'hostile environment' for migrants, and the availability of legal aid asylum and immigration advice.

  • Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said that the government recognise that in some areas which are more sparsely populated it can be difficult to access a legal aid provider, but the Legal Aid Agency monitor and review market capacity to ensure market capacity. She argued that at the latest Civil Legal Aid tender the number of offices providing immigration and asylum advice rose by 39%, by 188% on welfare benefits, and by 7% in debt and housing. She said that at this date there is at least one provider in all 134 of the legal aid procurement areas except for 7. Tendering exercises for these areas are ongoing. She highlighted the telephone advice service. Regarding the comments of the UN Special Rapporteur, she said that her department is working closely with the Department for Work and Pensions to ensure that decisions are right the first time. She highlighted that the government is undertaking a review of legal aid which will be published early in the new year. She argued that legal aid is available for asylum and non-asylum immigration cases. She said that some people are not claiming legal aid because they do not believe they are entitled to it.

Bailiffs

  • Neil O'Brien MP (Conservative) asked about rogue bailiffs and highlighted an individual constituency case where his constituent was never told his rights and where there is no independent regulator to raise concerns with. Rachel Reeves MP (Labour) said that a third of people contacted by bailiffs reported inappropriate behaviour.

  • Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said the government is determined to protect debtors from aggressive behaviour by enforcement agents while balancing this with effective enforcement of debts. The government has launched a public call for evidence on this issue.

Topical questions

  • Court reform - Chair of the Justice Select Committee Bob Neill MP (Conservative) noted the passage of the Courts and Tribunals (Judiciary and Functions of Staff) Bill and argued that there is now a pressing need to introduce the remaining primary legislation for court modernisation programme. Responding, the Lord Chancellor, the Rt Hon David Gauke MP said that it will be introduced when parliamentary time allows.

  • Legal aid - Stephen Hepburn MP (Labour) criticised a £1bn cut to the legal aid budget and a drop of 99.5% in the number of welfare legal aid cases and the impact on the poorest in society. Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said the government is reviewing legal aid and will report in the new year.

  • Mental health - Ruth Cadbury MP (Labour) asked whether the government will commit to implementing the recommendations of the independent mental health act review to reform mental health tribunals. Responding, Justice Minister Edward Argar MP said that the government has welcomed the review and committed to reforming the legislation.

  • Domestic abuse - Peter Kyle MP (Labour) noted that 2 years has passed since the then Justice Secretary agreed to prohibit the cross-examination of survivors of domestic abuse victims by their perpetrators. Responding, the Lord Chancellor, the Rt Hon David Gauke MP said that legislation will be brought forward very shortly on this matter.

  • LASPO Review - Andy Slaughter MP (Labour) asked why the LASPO Review has been delayed. Responding, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said that Mr Slaughter had told the Law Society that it is important that we take time on this important review. She said that the government have finished their engagement and will publish early in the new year.

House of Lords

Non-Contentious Probate (Fees) Order

On Tuesday the House of Lords debated the Non-Contentious Probate (Fees) Order - a statutory instrument that would replace the existing flat fee of £215 (or 155 if done by a solicitor) for grant of probate with a sliding scale of fees ranging from £250 to £6,000.

The Law Society was mentioned nine times during the debate and passages from the Society's parliamentary briefing were quoted.

An amendment moved by Lord Marks, the Lib Dem Justice Spokesperson, that would have blocked the statutory instrument from coming into force was rejected on division. However a non-fatal motion to regret, moved by the Labour Justice Spokesperson Lord Beecham, was passed. The regret motion raises concerns about the proposed fee structure but does not prevent the statutory instrument from coming into force.

Speaking for the government, Justice Minister Lord Keen of Elie said:

  • The proposed fee structure comes under the category of 'enhanced fees' above the cost of providing the service, and claimed that the Anti-social Behaviour, Crime and Policing Act 2014 gives the Lord Chancellor powers to introduce such fees through regulations.

  • It is an established principle that users of the courts should contribute to the costs of running them, and the proposed sliding scale would create a fair means of funding the courts system.

  • That the order would eliminate probate fees for 25,000 estates every year by raising the threshold value of estate at which fees begin to be charged from £5,000 to £50,000.

  • The proposals will ensure that nobody finds themselves unable to apply for a grant of probate, as the fees are determined by and recoverable from the value of the estate. He nonetheless recognised that there might be a temporary cash flow issue for some executors.

  • The government has been working with UK Finance, the Building Societies Association and the Money Advisory Service to set out principles to support bereaved people in the payment of these fees.

Setting out his amendment to decline to approve the order, Lib Dem Justice Spokesperson Lord Marks said:

  • Executors have no choice but to apply for probate and pay the resultant fees, noting that this point was 'powerfully made by the Law Society in its briefing for today's debate'.

  • The government are trying impermissibly to introduce a tax through secondary legislation, which is a misuse of the regulation making power under the 2014 Act.

  • One suggestion made by Lord Keen - that solicitors could temporarily loan money to executors to pay these fees - was unreasonable.

Moving his amendment that would regret the imposition of the new fees structure, Labour Justice Spokesperson Lord Beecham said:

  • There is doubt as to whether the Lord Chancellor has the power to prescribe fees for the purpose of subsidising the wider courts system - a view supported by the Law Society.

Other mentions of the Law Society:

  • Lord Sharkey (Lib Dem) noted that the Law Society had opposed the original iteration of this proposal, which was ultimately dropped after the calling of the 2017 general election.

  • Lord Northbrook (Conservative) described the Law Society's briefing on this subject as 'helpful', and quoted the following passage: 'The service involved in a grant of probate is the same whether an estate is worth £50,000 or £2 million. However, under the new proposals, some estates would face a charge of £6,000. This is excessive… It is unfair to expect the bereaved to fund/subsidise other parts of the court and tribunals service, particularly in circumstances where they have no other options but to use the probate service'.

  • Lord Northbrook also noted that the Law Society's concerns were echoed by the Secondary Legislation Scrutiny Committee (SLSC), and that the Law Society 'wholly agrees' with the views of the SLSC and the Joint Committee on Statutory Instruments that the proposed fee is a misuse of the fee-levying power under the parent act.

  • Lord Northbrook continued by referencing the Law Society's view that the parent act does not permit the Lord Chancellor to impose a tax, and that this steep rise in fees constitutes a tax rather than a fee.

  • Lord Northbrook further noted that the Law Society's points were emphasised by the Institute for Family Business, and asked the Minister to respond to the Law Society's concerns.

The order will next be considered and voted on by the House of Commons. If the Commons do not object to the order it will become law.

Wednesday 19 December

House of Lords

Homes (Fitness for Human Habitation) Bill Third Reading

The Homes (Fitness for Human Habitation) Bill was passed by the House of Lords at Third Reading on Wednesday without amendment. As the Bill passed through the Lords unamended it was given Royal Assent and became an Act on Thursday 20 December.

Thursday 20 December

House of Commons

Royal Assent

On Thursday Royal Assent was given to the following Acts:

  • The Civil Liability Act 2018
  • The Courts and Tribunals (Judiciary and Functions of Staff) Act 2018
  • The Homes (Fitness for Human Habitation) Act 2018

Question or comments? Contact the Public Affairs team at parliamentary@lawsociety.org.uk

Tags: 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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