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Committee stage of the Prisons and Courts Bill and Article 50 to be triggered

27 March 2017

This week the Prisons and Courts Bill will return to the House of Commons to undertake Committee Stage and our Head of Justice will be giving evidence to the Committee on Tuesday.

During the Bill’s Second Reading last week, the Law Society’s briefing on adequate safeguards on online courts and whiplash reform was mentioned a number of times. The Lord Chancellor also reconfirmed two Green Papers on legal support and family justice will be published.

The Government has also announced that they will announce the triggering of Article 50 on Wednesday and it is likely that it will publish a White Paper on the Great Repeal Bill on Thursday.

The President and Deputy President of the Supreme Court, Lord Neuberger and Baroness Hale, will be giving evidence to the Constitution Committee on Thursday.

Last week three parliamentary committees made recommendations to the Government which reflect the Law Society’s priorities for the UK’s withdrawal from the EU and all quoted the Law Society’s written and oral evidence. Following the EU Lords Justice Sub-Committee recommendations on continued civil justice co-operation through Brussels I and Brussels IIA, the Commons Justice Select Committee went to make a similar recommendations. They also went on to recommend continued collaboration in criminal justice and that the Government continues to enable cross-border legal practice rights and opportunities. Read our MPs back Law Society priorities for EU negotiations press release.

The EU Lords Internal Market Sub-Committee also recommended that any UK-EU free trade agreement includes provisions on the mutual recognition of professional qualifications and also of regulatory structures including for lawyers. Read our No deal post Brexit could be devastating for UK's valuable legal sector press release.

This week in Parliament

Tuesday 28 March

House of Commons

  • Ten Minute Rule Motion – Family Justice
  • Public Bill Committee – Prisons and Courts Bill  

House of Lords

  • Public Bill Committee - Preventing and Combating Violence Against Women and Domestic Violence (Ratification of Convention) Bill
  • Public Bill Committee - Criminal Finances Bill

Wednesday 29 March

House of Commons

  • Public Bill Committee – Prisons and Courts Bill
  • Work and Pensions Committee – Oral Evidence Session – Self-employment and the gig economy
    • Matthew Taylor, Chief Executive, The RSA
    • Damian Hinds MP, Minister for Employment, Department for Work and Pensions

Thursday 30 March

House of Lords

  • Constitution Committee - Oral Evidence Session – President and Deputy President of the Supreme Court
    • The Rt Hon Lord Neuberger of Abbotsbury, President, Supreme Court
    • The Rt Hon Baroness Hale of Richmond, Deputy President, Supreme Court
  • Oral questions – Sharing sensitive personal information with other EU member states for the purposes of crime prevention and detection following the UK’s withdrawal from the EU
  • Oral questions – Impact on the UK’s economic interests of the end to the jurisdiction of the EU Court of Justice

Last Week in Parliament

Monday 20 March

House of Commons
Prisons and Courts Bill – Second Reading

The Second Reading of the Prisons and Courts Bill took place on Monday. The Bill passed without the need for a vote and its Committee stage will start tomorrow. The Law Society’s briefing was mentioned several times by Richard Burgon MP, Shadow Lord Chancellor, and Bob Neill MP, chair of the Justice Select Committee.

In presenting the Bill's key proposals, the Lord Chancellor made the following main points:

  • She welcomed the proposals of using alterative venues to makes sure that victims of domestic and sexual abuse received the best support possible.
  • She reiterated that the Government would launch a legal support Green Paper in early 2018: 'what we want is less time spent navigating the system and more legal time spent on giving people legal advice and legal representation'.
  • The Government would also launch a Green Paper on family justice to look at the system in a holistic way.
  • The Lord Chancellor argued that whiplash claims were 50% higher than 10 years ago and added that the transparent tariff system introduced by the Bill would make sure that all claims were adequately supported.
  • She reiterated that a consultation on the discount rate for personal injury compensation would be launched before Easter.

In responding to the Lord Chancellor, the Opposition made the following points:

  • Shadow Lord Chancellor Richard Burgon MP said that the Labour Party would not oppose the Bill but more needed to be done to improve the safeguards in several areas.
  • He said that technology alone was not a 'panacea' and that reform should not happen at the expense of access to justice.
  • Burgon mentioned the Law Society three times in relation to the importance of introducing adequate safeguards for online convictions and the use of video link. He also noted our concerns in relation to the pass through rate and the lack of mechanism for passing on savings to consumers.
  • He congratulated the Government for listening and for not going ahead with the proposals to increasing the small claims limit to £5,000 for all personal injury cases.
  • In relation to whiplash, Burgon argued that the reform was built on the 'false premise' that there was an epidemic of fraudulent claims. He also said that the tariff system was set too low. 
  • Burgon argued that insures had a duty to investigate and not to pay for fraudulent claims.
  • Burgon also noted that the introduction of employment tribunal fees had reduced the number of cases brought to court. He pointed out that the Government seemed to treat the involvement of lawyers as 'a bad thing', whilst lawyers played a fundamental role by avoiding that claimants with fraudulent claims enter into the system.
  • Shadow Solicitor General, Nick Thomas-Symonds MP, closed the debate by saying that the Labour Party would welcome modernisation and innovation, and would seek to amend the Bill 'to embed the principles of justice and fairness and to ensure that innovations come with safeguards and appropriate statutory reviews'.
  • In relation to the online courts, he noted that one of the risks was that the person appearing in court was not able to follow or understand the hearing: 'That might be a challenge in a virtual court with a lawyer present; it is an even greater challenge where there are litigants in person'.
  • He also expressed caution about the idea of online guilty pleas.

Other MPs made the following points:

Digital Justice

  • Madeleine Moon MP (Lab) argued that, although the purpose of modernising the court system was commendable, quality broadband was essential to make sure that even people living in rural areas could access justice.
  • Bob Neill MP (Con) mentioned the Law Society in relation to the unintended consequences of adopting a 'broad brush' approach to online convictions.
  • Former justice minister Shailesh Vara MP (Con) expressed his support to the court reform proposals. However, he noted that the Government should ensure that people who did not have access to technology could still access justice.

Whiplash reform

  • Chris Philp MP (Con) asked if the Government would look into expanding the definition of whiplash to include injuries to the lower back as well as the upper back.
  • Bob Neill MP said that there were problems around whiplash claims. However, he mentioned that the definition of whiplash as problematic: 'we will need to consider the devil in the detail in relation to the definition of whiplash in clause 61 and its subsections'. He also said that 'a lot of the problems stem from the work of the claims management companies, and it is important to look at that'.
  • David Hanson MP (Lab), a member of the Justice Select Committee, noted that the Committee had not been convinced by the Government's case to date and had established a follow-up inquiry. He also asked what the Government would do to ensure that savings would be passed on to consumers.
  • David Nuttall MP (Con) pointed out that the Government's proposals in relation to whiplash compensation would help address the issues of fraudulent whiplash claims. He also noted issues around the definition of what constituted a whiplash injury.

House of Lords

Lords EU Justice Sub-Committee publishes report on civil justice co-operation

The Lords EU Justice Sub-Committee published its report Brexit: justice for families, individuals and businesses? on civil justice co-operation. The Law Society submitted written and oral evidence to the Committee and was quoted a number of times through the report.

The report called for the Government to make a coherent plan for addressing post- Brexit application of civil justice regulations. Specifically it:

  • Brussels I - The Committee urged the Government to keep as close to the Brussels I rules as possible when negotiating their post-Brexit application and noted the Minister’s recognition of this (Oliver Heald QC MP).
  • Brussels IIa Regulation and the Maintenance Regulation - The Committee said that to walk away from the Brussels IIa Regulation and the Maintenance Regulation would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm.
  • Alternative options for Brussels I - The Committee noted that it would cause confusion, expense and uncertainty if the UK were to return to the common law. It noted that the combination of the Lugano Convention, implementation of Rome I and Rome II through the Great Repeal Bill and ratification of the Hague Convention on choice-of-court agreements would be a workable solution. The Committee added noted that British courts giving ‘due account’ to the CJEU under the Lugano Convention could be compatible with the Government’s stance on the CJEU.
  • Alternative options for family law - It was noted that the above solution would not be sufficient for family law. It suggested that Hague Conventions in family law would provide substantially less clarity and protection for those individual engaged in family law.
  • Alternative options to the CJEU as a dispute resolution mechanism - The Committee noted that it was not convinced that the Minister’s response that dispute mechanism resolutions used in free trade agreements with Canada  and South Korea would offer a viable solution for these intricate reciprocal regime encompassed by the current arrangements.

Specifically the Law Society’s statistics on the value of legal services were quoted along with our views on the near automatic nature of Brussels I, the concern about the impact on legal services if Brussels I is lost, the pros and cons of the Lugano Convention and why the common law is unlikely to be sufficient in this area due to the international, and European, focus of the UK in the last forty years.

Tuesday 21 March

House of Commons

Intellectual Property (Unjustified Threats) Bill [HL] - Report stage and third reading

The Intellectual Property (Unjustified Threats) Bill passed through report stage and third reading in the House of Commons. As no changes were made, it will return to the House of Lords to receive Royal Assent. Read the transcript.

Wednesday 22 March

House of Commons

Justice Select Committee publishes report on impact of Brexit on justice system

The Justice Select Committee published its report on the implications of Brexit for the justice system. The Law Society gave written evidence and President Robert Bourns gave oral evidence. The Law Society was mentioned in the report a number of times including Robert Bourns comments on the traditional—some would say old-fashioned—fiefdoms of professional practice re-emerging in Europe without the directives. We note that although these instruments are Directives, thus already incorporated into domestic statute, they rely on reciprocity (as with Brussels I and II). WTO rules, on which the UK might fall back, are significantly weaker: they don’t guarantee legal professional privilege, without which the right to practise is effectively useless.

Overall the Committee said that the Government’s four principal aims for the Government’s approach to justice matters in the Brexit negotiations should be:

    • Continuing cooperation on criminal justice as closely as possible;
    • Maintaining access to the EU’s valuable regulations on inter-state commercial law;
    • Enabling cross-border legal practice rights and opportunities; and
    • Retaining efficient mechanisms to resolve family law cases involving EU Member States and the UK.

Read our press release on the report: MPs back Law Society priorities for EU negotiations

House of Lords

Lords EU Internal Market Sub-Committee publishes report on non-financial services sector

The EU Lords Internal Market Sub Committee published its report on Brexit: trade in non-financial services. The Law Society submitted written evidence to the Committee and Head of International, Mickael Laurans, gave oral evidence. The Law Society was quoted a number of times in the report including:

  • The Law Society told us that under the two legal services Directives UK lawyers and their law firms benefit from a simple, predictable and uniform system, whereby they can provide services on a temporary basis and/or establish permanently in another Member State under their home title.
  • As for FTA options, Mr Laurans told us that any off-the-shelf free trade agreement would be a setback to current levels of market access and national treatment for legal services. Legal services remained highly restricted globally, and the EU-South Korea FTA was the one example of a free trade agreement that achieved a significant change in market access for the legal services sector. He said the Government should be very, very ambitious for the services sector to achieve the kind of market access we would like.
  • In relation to legal services, Mr Laurans said the EU’s GATS schedule would require the UK to negotiate with 27 individual markets, of which some … will not have third country lawyer status, so you will not be able to practise in that Member State. In others, UK lawyers will not be able to set up a law firm with local lawyers; this would be another significant setback for the legal services sector.

The report covers a number of areas of non-financial services. The section on professional and business services (PBS) notes that in a ‘no deal’ scenario, regulated PBS firms (such as legal and accounting firms) would face increased barriers to trade in the EU. The Committee specifically recommends that the Government:

  • Ensures that any UK-EU FTA includes provisions on the mutual recognition of professional qualifications and also of regulatory structures.
  • Seek to include provisions on the rights of UK businesses to establish themselves in the EU.
  • Give full weight to the benefits of recruiting from the EU in PBS and the consequences of changing migration rules for PBS, both in negotiations and in the preparation of immigration legislation. Read our No deal post Brexit could be devastating for UK's valuable legal sector press release.

Lord Chief Justice gave evidence to the Constitution Committee

The Lord Chief Justice, Lord Thomas of Cwmgiedd gave evidence to the Constitution Committee. The session was wide ranging and covered topics including:

  • Brexit - Lord Thomas cautioned that lawyers in other jurisdictions were likely to use Brexit to argue that people should not use English law and should switch to other jurisdictions.
  • Court procedure - He said that the judiciary wanted a set of uniform procedures across the courts, rather than piecemeal reform of the criminal, family and other courts.
  • Judicial independence - He criticised the Lord Chancellor’s comments about the judiciary speaking up for themselves, and her response to media comments about the judiciary. He reflected on the importance of having a Lord Chancellor who understands the statutory duties of the role.
  • Courts and Prisons Bill – Lord Thomas said the Bill was largely good. He noted that he had written to all judges explaining an error in the MoJ’s description of the roll-out of pre-recorded evidence. He also said that he had significant issue with Clause 28 of the Bill.
  • Ministry of Justice budget cuts – Lord Thomas attributed the failings in MoJ to budget cuts, saying that there was not enough money to make sure they had adequate staff to cover important issues. He said that HMCTS cuts did not reflect the costs of actually running a court service that does not fall over. He also noted the significant reduction in MoJ’s International Team in recent years, saying that this was now a key issue.
  • Judicial morale and recruitment – On judicial recruitment, he said that he had been working to attract people from a variety of background, not just in terms of professional qualification but also from areas like the Government Legal Service, to the judiciary. He said that progress has been made, but figures are not collected because the JAC is not interested in them. On the very low figure of 2% of judges feeling valued by the Government, he attributed this to two main factors:
    • The comments of the Lord Chancellor on judges speaking up for themselves and her response to attacks on the judiciary;
    • Pay and pensions.
  • LASPO - He noted that the sentencing aspects of the Act had been broadly successful, but that legal aid sections needed review. He singled out private law and family disputes as often needing a lawyer where they might not be available.

Thursday 23 March

Nothing relevant. 

Friday 24 March

Houses not sitting.

Tags: Westminster weekly update | European Union | Brexit | courts

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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