Richard Atkinson, Co-chair of the Law Society’s Criminal Law Committee presented oral evidence to the Public Bill Committee on the Counter Terrorism and Border Security Bill. In the session Richard shared insight and concerns on the following subjects:
- Legal Professional Privilege - the bill as drafted includes provisions for detainees to consult a solicitor only in the sight and hearing of a qualified officer, which contradicts code H of the Police and Criminal Evidence Act 1984 and the code of practice of Schedule 7.
- Lack of safeguards for items seized which might be subject to Legal Professional Privilege.
- Early access to a lawyer during examination at the border.
A parliamentary briefing on the bill will be available next week.
Last week, the Law Society launched a partnership with Barclays on legal technology. Lord Keen, MoJ spokesperson for the Lords, said: 'The UK has every reason to be a world leader in LawTech. I share the ambition of initiatives like this and encourage Barclays and the Law Society to lead the way and make this incubator an industry centre of excellence for LawTech. […] The Lab will help companies to start up and to scale up, it will provide a physical space, open routes to investments and expertise, and offer a forum to link the start-up community, law firms, entrepreneurs, data scientists, engineers and academics.'
Deputy Vice President, Simon Davis, also spoke and emphasised the importance of client service. He said that advances in legal technology are about 'focusing relentlessly on an ever-improved service to clients and allowing lawyers to do what they do best and machines what they do best. A complementary, not conflicting service.' His speech is available here.
In Parliament, the EU Withdrawal Bill received royal assent this week. The Civil Liability Bill will undergo its third reading in the House of Lords.
Last week, the Lords EU Justice Sub-Committee took evidence from Home Secretary, Sajid Javid, on EU citizens’ rights post-Brexit. In addition, the Courts and Tribunals (Judiciary and Functions of Staff) Bill had its second reading in the House of Lords. The Law Society briefed peers ahead of the debate, and we were mentioned four times. The Bill will now move to the Committee Stage in the House of Lords, the date of which is still to be confirmed.
This week in Parliament
Monday 25 June
House of Commons
- Adjournment debate - Statute of limitations to protect veterans and soldiers
House of Lords
- Oral questions - Effectiveness of the Apprenticeship Levy Legislation
- Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2018 - Motion to approve
Tuesday 26 June
House of Commons
- Counter-Terrorism and Border Security Bill - 2nd sitting
- Public Administration and Constitutional Affairs - Oral Evidence Session: Devolution and Exiting the EU
Wednesday 27 June
House of Commons
- European Scrutiny - Oral Evidence Session: EU Withdrawal
House of Lords
- Civil Liability Bill [HL] - Third reading
Thursday 28 June
House of Commons
- Oral questions: International Trade (including Topical Questions)
- Public Bill Committee: Counter-Terrorism and Border Security Bill - 3rd sitting
Last week in Parliament
Wednesday 20 June
House of Commons
Counter Terrorism and Border Security Bill
The Joint Human Rights Committee held a legislative scrutiny session on the Counter Terrorism and Border Security Bill. The committee members heard evidence from Max Gill QC, Independent Reviewer of terrorism legislation and Corey Stoughton, Advocacy Director, Liberty. The full session can be viewed here and a summary is included below.
Information gathering (clause 3 of the Bill)
Karen Buck MP if the offence has written risked criminalising curiosity and inadvertent viewing, she asked if it was drafted sufficiently and gave the example of a PHD student who is doing a thesis on torture and said it would seem the student would easily be caught by this legislation.
In response, Max Hill QC said that in the explanatory notes to this clause, the government states they are trying to deal with a pattern of behaviour. He said clearly there are risks for journalists and others, he quoted Index on Censorship who expressed concern on the potential restrictive and frightening effect on researchers, students, academics and journalists amongst others who are researching case studies, making arguments and carrying out interviews. He added that without more focus, the 'net' of the amendment may catch far too many people. He also pointed out that the government will say there is still a reasonable excuses defence.
Mr Hill QC argued that the clause was difficult in practice and it did lack clarity around the many circumstances where the crime is not committed. He went on to state that because of questions over length of time between clicks and the fact it may be different material each time meant it was hard to establish a pattern of behaviour. Mr Hill QC also spoke about the risk of up to 15 years in prison under the draft clauses despite there being no need to establish purpose of use for a terrorist act, added that the clause should be looked at again and either amended in some form or revisited.
Corey Stoughton underscored Mr Gill’s comments and added that the government’s response on the availability of the reasonable excuse defence is that it was a question for a jury, which means a person is risking a trial all the way to a jury before reasonable excuse can be established. Ms Stoughton also said there should be concerns with the effect on people who view the material for legitimate reasons in order to process their own disgust and horror or to better understand wrongful terrorist acts, or those who simply out of poor judgement.
Karen Buck MP also asked for specific examples of where reasonable excuse would be justified other than through journalistic or academic motive. In response, Mr Hill QC said he shared concerns and said the draft clause does not differentiate from those who might have the wrong sort of intention, and individuals who may look at the material in horror or out of curiosity. He went on to say that he could see how, for example, someone may click on material twice in outrage and therefore be two thirds of the way to a prosecution.
The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill passed its Committee Stage in the House of Commons.
The Bill is a Private Members Bill. While it is rare that Private Members Bills become law, this Bill has secured government backing and is expected to pass into legislation.
The Law Society briefed ahead of the Committee Stage and we were mentioned once in relation to our campaign to restore legal aid for early advice.
The Bill will now proceed to the report stage in the House of Commons, the date of which is to be confirmed.
The transcript of the debate can be read here, and a short summary is included below:
Karen Buck MP (Westminster North, Labour) reintroduced the Bill and moved a number of minor, technical amendments to the Bill, one of which was to rename the Bill to the Homes (Fitness for Human Habitation) Bill. These were agreed to.
- Buck then moved an amendment which extended the provision of the Bill to include the whole dwelling, including any part of the building in which the landlord has an estate or interest, in order to ensure that communal areas such as stairwells or roofs on blocks of flats are also covered by the Bill. This amendment was agreed to.
Andy Slaughter MP (Hammersmith, Labour) called for the Government to ensure that tenants are able to enforce their rights and noted the Law Society’s campaign to restore legal aid for early advice in housing cases.
Siobhan McDonagh MP (Mitcham and Morden, Labour) argued that vulnerable tenants will only be able to take action if they have support and noted that there is pressure on local law centres.
Exiting the EU Committee
Guy Verhofstadt MEP, Brexit Coordinator and Chair of the European Parliament Brexit Steering Group gave evidence to Hilary Benn’s Exiting the European Union Select Committee. You can watch the session in full here.
Please see below a top line summary and the key points raised:
Progress of negotiations: Guy Verhofstadt (GV) said it was normal for these negotiations to be taking time and for there to be areas of difficulty. He said seven articles of the Withdrawal Agreement were now agreed, but there was still no agreement on the two key issues; Northern Ireland and the governance of the agreement. He said he hoped that the Government’s expected White Paper on the future relationship would provide solutions to some of these problems.
Financial Services: Responding to a question on the potential of having a ‘pillar’ in the political agreement on financial stability, GV said he saw financial services as being part of the trade and economic co-operation ‘pillar’. He said he did not envisage the EU agreeing to mutual recognition and stated that the EU is in agreement that regulatory equivalence 'was the way forward'. Equivalence he said, guarantees the autonomy of the EU and its legislators, and the EU would not be giving up any of its power to regulate.
Northern Ireland: GV stressed that 'the backstop must be a backstop' and only put in place if no other solution can be found. He added a backstop must be a permanent solution, which is why the UK’s proposed ‘temporary solution’ backstop was unacceptable. He stated that he was puzzled by the UK Government’s position on customs, arguing that if the UK’s backstop was imposed there would be three different customs arrangements over the course of a couple of years. He said the UK’s proposed backstop solution was also unacceptable as there was no recognition of the need for regulatory alignment.
Freedom of movement: GV argued that Member States have a lot of room to manoeuvre within the constraints of freedom of movement, and that countries don’t always use this to help control and limit migration. For example, he said Belgium had been tougher than the UK and others in what it offers in social security benefits. He also argued labour mobility in Europe was very low at only 1% in comparison to the United States which is 10%. He also added that the EU Parliament would not agree to an agreement in which the work mobility of UK citizens would be limited to one country as this would go against the principles of the EU.
Future relationship: GV said he believed it would be possible to sort out the details of the future partnership by the end of the transition, and this was why this period was so important. He disagreed with Brexit Secretary David Davis that the majority of the details of the political agreement will be negotiated by March 2019, but said it was important the political agreement was as precise as possible in order to provide enough certainty to businesses, and to ensure there is no misunderstanding on what the future relationship will involve as negotiations continue during the transition. His assessment was also that if the political declaration on the future relationship was put into the annex of the Withdrawal Agreement, then this would make it legally binding.
Principles of the EU: GV argued that the current negotiations were not between two political parties, when both parties compromise on their principles in order to form a government. He stated that the EU was operating within a rules based system, and therefore its principles cannot be compromised. Therefore, the UK can not expect the EU to be open to trade-offs and expect a good deal on security in return for a more favourable agreement on trade.
Timeline: He argued that it was still possible to reach an agreement by October/November, but negotiations would need to be sped up. GV added that the EU Parliament would need three months to ratify the agreement so there would have to be an agreement by the end of the year at the latest.
Customs: He rejected the idea of a ‘New Customs Partnership’ as proposed by the Prime Minister. He added he was also very sceptical of the 'max-fac' option. GV stated he did not believe the possibility of staying in the single market for goods, and not in services was viable. He argued goods and services are interlinked and it would be very difficult if not impossible to make such an agreement work.
Closer integration: GV argued that he believed the Brexit decision was a failure of the EU, but the UK leaving has accelerated talks of reform of the EU. He argued that his belief was more integration was necessary in some areas, such as defence and migration, but needed less in others such as regulation of the internal market.
Association agreement: GV said the EU Parliament proposal for an associated agreement ensures that there is one governance structure and one cycle of ratification. He said an association agreement was a flexible instrument that enables you to define the cooperation between the EU and the third party country but leaves the door open for either a limited or extremely comprehensive trade agreement.
June summit: GV said that realistically he did not see much progress being made at the European Council summit in June, beyond the joint statement published today providing an update on the latest areas of agreement in the draft legal text of the Withdrawal Agreement.
Impact of European Parliament elections: GV said that he did not believe a new Commission and Parliament in 2019 would have any impact on the future relationship discussions as the political declaration agreed and ratified by March 2019 would set the framework for these discussions.
House of Lords
Courts and Tribunals Bill
The Courts and Tribunals (Judiciary and Functions of Staff) Bill had its second reading in the House of Lords this week.
The Law Society briefed peers ahead of the debate, and we were mentioned 4 times.
The Bill will now move to the Committee Stage in the House of Lords, the date of which is still to be confirmed.
The full transcript of the debate can be found here, and a summary is included below.
Moving the Bill
- Moving the Bill, the Minister Lord Keen of Elie said that the Bill is the first step in delivering the legislation to underpin the Government’s ‘ambitious and far-reaching programme to create a modern, world-class courts and justice system.’ He noted the provisions of the Bill and argued that the wider package of reforms will ‘ensure that our courts and tribunals system is fit for the 21st century and the digital age.’
The Opposition’s response
Baroness Chakrabarti (Labour) criticised the lack of parliamentary scrutiny of the modernisation programme and the Government’s failure to bring forward legislation. She criticised the reforms to legal aid made under LASPO and cited concerns on that Bill from the Law Society and others. She raised concerns with the detail of which judicial functions will be delegated through the Bill and to whom, and raised the Law Society’s suggestion that there should be minimum qualifications on the face of the Bill set at a level of three years post-qualification from legal practice.
Lord Beecham (Labour) raised concerns with court closures and highlighted the Law Society’s concerns. He emphasised the Law Society’s concerns that new technology in courts has not been fully tested and evaluated, while court closures proceed regardless. He said that while the Labour Party supports the intention to modernise the court system, it must be done in a way which facilitates access to justice.
The Minister’s summary
- Responding to the debate, the Minister Lord Ken of Elie said that justice’s clerks are highly qualified individuals who have for a long time been in a position of tendering legal advice within courts, and while the name may change, this will continue. He said that it is intended that the determination of qualifications for the delegation of judicial functions will be specified in regulations by the Lord Chancellor. He said that the Government will bring forward legislation to prohibit the cross-examining of victims of domestic violence, and it is a matter of parliamentary time.
Lord Beith (Liberal Democrat) criticised the failure to bring forward legislation to ‘end the cross-examination of domestic violence victims’. He said that without further legislation courts will be stuck ‘in the mid-20th century’.
Lord Mackay of Clashfern (Conservative) raised concerns that the title of 'justice’s clerk' is to be removed, and on other changes to job titles in the Bill.
Lord Thomas of Cwmgiedd (Crossbencher) welcomed the Bill and said that it was essential to modernise the court system. He argued in favour of more flexible judicial deployment.
Lord Hodgson of Astley Abbotts (Conservative) called for the Government to raise the retirement age for judges.
Lord Flight (Conservative) called for a dedicated housing court.
Baroness Newlove (Conservative) argued that the Bill could do more to improve the courts system and called for legislation to end the cross-examination of victims of domestic violence.
Lord Marks of Henley-on-Thames (Liberal Democrat) said that the Bill was too small in scope and criticised the ‘drip-feeding’ of legislation on courts. He said the Bill ‘gave little indication of the Government’s direction of travel'. While he welcomed flexible judicial deployment, he warned against it becoming the norm and emphasised the specialisms that judges have. He called for ‘robust safeguards’ to ensure that decisions that should be taken by judges are not delegated and said that those making judicial decisions or giving advice to judges must be adequately qualified. He called for greater judicial diversity.
Thursday 21 June
House of Commons
Attorney General Questions
Questions to the Attorney General were held in the House of Commons, the full session transcript can be found online and a summary is included below:
Public Legal Education
Eddie Hughes MP (Walsall North, Conservative) asked what steps the Law Officers had taken to promote public legal education (PLE). The Solicitor General, Robert Buckland stated in response that he had launched a new public legal education panel formed of leading organisation that promote the importance of teaching people about the law and basic civil and criminal rights. He adds that as part of that, he is able to work closely with those involved in PLE, supporting initiatives to increase its profile and to reach more members of the public.
Jo Stevens MP (Cardiff Central, Labour) agreed with the Solicitor General that public education is important and asked if he could explain what had gone wrong with prosecution disclosure and who was responsible. Mr Buckland responded that along with the Attorney General he had launched a review late last year and that they were working closely to update and revise the guidelines to tackle the issues with which she and I are very familiar.
Tackling Economic Crime
Craig Tracey MP (North Warwickshire, Conservative) asked if the Attorney General would confirm that, despite the availability of deferred prosecution agreements, the Serious Fraud Office (SFO) will still move directly to prosecute those involved in high level economic crime. Jeremy Wright, the Attorney General replied that the SFO is a key player in the response to economic crime and continued to operate independently, investigating and prosecuting some of the most serious and complex economic crime. The Attorney General added he had announced earlier this month the appointment of the SFO’s next director, Lisa Osofsky.
The Attorney General was also asked questions regarding forced marriages and FGM.
EU Citizens’ Rights
The Lords EU Justice Sub-Committee took evidence on EU citizens’ rights post-Brexit. Giving evidence to the Committee were:
- Home Secretary Rt Hon Sajid Javid MP
- Glyn Williams, Director General, Border Immigration and Citizenship System.
Please see below a summary of the key points raised during the session, which is available to view in full here.
New Settlement Scheme: Javid said that the UK was meeting its commitments to secure the rights of EU citizens living in the UK. He argued the scheme the Government is introducing will be simple and online based. He said that EU citizens will have to answer three 'simple' questions, which included proving their identity, proving they live in the UK, and confirming that they have no serious criminal convictions. He stated the default positioning of the Home Office will be to grant status as quickly as possible, and 'we will not be looking for excuses to not grant settled status'. Answers would be checked electronically against government databases. Javid said there would be two types of status, the first one being ‘settled status’; for those living in the UK for longer than five years, and the second status being ‘pre-settled status’ for those who have been in the UK for less than five years.
Implementation of scheme: Javid said he was confident the Home Office has the structure in place to run the scheme effectively. He added the Home Office was recruiting to ensure it had the capacity to deal with any extra EU casework. Javid said he was hopeful of phasing the scheme in from the beginning of Autumn, and by March 2019 it will be fully functioning for everyone who needs to register.
Withdrawal Agreement: Javid said he was content with what had been outlined on citizens’ rights in the Withdrawal Agreement, and there was appropriate safeguards for citizens in place.
UK citizens abroad: Javid expressed his frustrations that more wasn’t being done by other EU countries following the UK’s lead on providing more clarity and certainty for the status for UK citizens living in EU Member States.
Hostile environment: Javid stated that there needs to be a robust process in place for those who are in the UK illegally but improvements needed to be made to ensure the UK system is fair and compassionate. He said that the Home Office had learnt a lot of lessons from the Windrush scandal. Javid emphasised that EU citizens make an important contribution to the UK, and the message he wants to send to EU citizens living in the UK is that 'we don’t just want you to stay, but we need you to stay'.
Changing the culture of the Home Office: Javid said it would be wrong to blame some of the 'hostile environment' practices on officials. He stated that officials take direction from Ministers, so a culture change must start from the top. Williams said that there was a culture in the Home Office of wanting to apply the rules, but argued these rules are dictated by Parliament. He added over the years these rules have got longer and more detailed, so Home Office officials have felt increasingly bound to follow and implement these rules.
No deal: Asked about what would happen in the event of No Deal, Javid stated the Prime Minister has been clear that EU citizens living lawfully in the UK will be allowed to stay.
Citizenship: Javid said there was no plans to look at fast tracking the citizenship process for EU citizens through the settled status scheme, but said he was interested at looking at reducing the fees for citizenship.
Support: Javid said there would be practical steps in place to ensure vulnerable people and those who struggle with technology are provided with support. There is also an effective advertising and communication campaign that the Home Office will implement.
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