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Westminster weekly update: Courts Bill introduced and evidence to Justice Committee

30 May 2018

Parliament is in recess this week and both Houses will return on 4 June. On their return, both the Home Secretary and the Justice Secretary are scheduled to face questions from MPs on immigration and access to justice respectively.

The Public Accounts Committee will evidence on transforming courts and tribunals from the Law Society’s Head of Justice, Richard Miller followed by the Permanent Secretary at the Ministry of Justice, Richard Heaton and the Chief Executive of HM Courts and Tribunals Service, Susan Acland-Hood. While in the House of Lords, Lord Beith is tabling a question on legislation to modernise the courts system.

Last week the Courts and Tribunals Bill was published and had its first reading. The Bill introduces the first set of court reform measures relating to the deployment of the judiciary and enabling staff to exercise certain judicial functions. The Law Society will be looking closely at the measures contained in the Bill.

Last Tuesday, the Law Society gave evidence to the Justice Select Committee on criminal legal aid. On the same day, EU Justice Sub-Committee held an evidence follow-up session on family law and civil justice cooperation post Brexit. While on Wednesday, Suella Braverman MP and Robin Walker appeared in front of the Exiting the EU Committee to discuss the future relationship.

Also, last week both the Sanctions and Anti-Money Laundering Bill and the Data Protection Bill received Royal Assent. Elsewhere, the Lord Chancellor gave evidence to the Joint Committee on Human Rights on enforcing rights. During the session, the Lord Chancellor answered questions on legal aid, telephone gateway services and the exceptional case funding scheme.

Next week in Parliament

Monday 4 June

House of Commons

  • Oral questions: Home Office (including Topical Questions)

Tuesday 5 June

House of Commons

  • Oral questions: Justice (including Topical Questions)

House of Lords

  • Automated and Electric Vehicles Bill – Report - Baroness Sugg

Wednesday 6 June

House of Commons

  • Public Accounts - Oral Evidence Session Transforming Courts and Tribunals Richard Heaton, Permanent Secretary, Ministry of Justice and Susan Acland-Hood, Chief Executive, HM Courts and Tribunals Service

House of Lords

  • Oral questions: Legislation to modernise the courts system - Lord Beith
  • Oral questions: Agreement with EU negotiators on the UK's withdrawal from the EU - Lord Dykes
  • Debate: European Union Committee report: 'Brexit: the future of financial regulation and supervision' - Baroness Falkner of Margravine
  • Constitution Committee - Oral Evidence Session Legislative process

Last week in Parliament

Tuesday 22 May

House of Commons

Richard Miller gives evidence to Justice Committee

The Law Society’s Head of Justice, Richard Miller, gave evidence to the Justice Select Committee regarding criminal legal aid.

The session focused on the sector’s concerns with changes to the Litigators Graduated Fee Scheme (LGFS) and Advocates Graduated Fee Scheme (AGFS), and on the wider criminal justice system.

The other witness during the session was Daniel Bonich, Vice Chair of the Criminal Law Solicitors’ Association.

You can recap on the session by viewing it here, and a short summary is included below.

  • Miller and Bonich were invited to set the scene and were asked how the LGFS scheme works and was developed. Both gave detail about how the LGFS scheme worked in practice, the move to fixed fees and the level of cuts that have occurred in recent years.

  • They were asked what the upsides were to having fixed fees. Bonich said that while fixed fees provided certainty, there were many more downsides, including that it does not adequately cover work done on unused material. Miller argued that the fixed fee scheme was developed to suit the times it was created in, and that there have been changing practices and a significant increase in the number of pages of digital evidence.

  • Bonich spoke about the growing quantity of unused material, and agreed with the Chair of the Committee, Bob Neill MP that the description ‘unused material’ is misleading.

  • Miller spoke about the impact of criminal legal aid cuts on solicitors’ firms, and that 3-400 firms are now no longer practising criminal law. He said that there is growing evidence that there are firms that are forced to pick and choose which cases to take on depending on whether they will be profitable.

  • Miller and Bonich gave further detail on how special preparation works in cases where the number of pages of evidence goes beyond the limit of 6,000.

  • Miller spoke about the impact of cuts across the wider criminal justice system, and the pressure on the CPS.

  • Miller raised concerns with the consultation from the Ministry of Justice on the LGFS reforms and how they failed to take into account the wider fragility in the criminal legal aid market. He spoke about the looming crisis in the numbers of criminal duty solicitors. Bonich spoke about the cumulative effect of the cuts in previous years.

  • Miller called for an independent evaluation of what is needed to ensure the criminal justice system is sustainable.

  • Miller and Bonich both raised concerns with the new AGFS scheme, although both agreed the concerns were rooted in wider concern on the sustainability of the criminal justice system.

  • Miller agreed that there were things to learn from the Scottish review of legal aid.

  • Bonich spoke about the impact of the AGFS reforms on solicitors, and on individuals. Although he argued that it was still too early to fully assess the impact, he said that it is clearly putting pressure on solicitors.

  • Bonich said that criminal solicitors could consider taking further action, in response not just to the AGFS, but to wider concerns on the sustainability of the whole criminal justice system.

  • Both Miller and Bonich commented on the impact on the individual of the concerns raised regarding the criminal justice system. Miller focused on the Law Society’s data on the ageing criminal duty solicitor profession and said that the crisis is reaching biting point. He noted specific geographical areas where there are concerns and highlighted a Buzzfeed article from journalist Emily Dugan regarding a Ministry of Justice report on the growing number of litigants in person.

  • Concerns regarding the sustainability of the criminal justice system were echoed by members of the Committee, and Bonich and Miller raised examples of why young people no longer always see criminal legal aid as a viable career option.

  • The Committee were keen to hear from the Law Society with details of case studies of those affected by changes to the LGFS and AGFS, and also those being affected by the action taking place by the criminal bar.

Wednesday 23 May

House of Commons

DExEU Ministers at Exiting the EU Select Committee

Parliamentary Under Secretaries of State at the Department for Exiting the EU Suella Braverman MP and Robin Walker MP appeared before Hilary Benn’s Exiting the EU Select Committee.

A summary of the key points is below:

  • Legislative programme: Labour MP Pat McFadden asked about agreement on the future UK-EU partnership and how this factored into the Government’s legislative programme. RW said the future relationship could only not be ratified until the UK had left the EU in March 2019. Pressed further on the financial settlement specifically, SB highlighted how this would factor into a legal text in relation to a political declaration. McFadden then sought clarity on this question about possible conditionality, to which SB referenced what the Withdrawal Agreement would oblige both the UK and EU to do. She again then defended the ‘nothing is agreed, until everything is agreed’ principle.

  • EU (Withdrawal) Bill and the devolved administrations: SNP MP Peter Grant then asked which amendments made to the European Union (Withdrawal) Bill the witnesses felt challenged the UK constitution. SB said Amendment 49 was “particularly concerning” given, she declared, it amounted to a “no Brexit” amendment and undermined the negotiation process. Pushed further on Parliament’s role specifically, she warned against “tying the hands” of the Government in the talks. RW said it was right that Parliament had a “final say” rather than directing negotiations.

  • Meaningful vote on withdrawal agreement: Conservative MP Andrea Jenkyns sought clarity as to what threat was posed by Amendment 49 to the Withdrawal Bill. SB said it sought to thwart and obstruct the Government in its work, and therefore the Government would not accept the amendment.

  • White Paper publication: RW confirmed the Government’s White Paper on the future relationship would be published in June. Labour MP Emma Reynolds then questioned if the Government’s White Paper would take a view on which customs arrangement it would pursue. RW said the White Paper would provide further clarity and details around a “whole range of areas” including security.

  • Talks on the future UK-EU partnership: Labour MP Stephen Kinnock asked what progress could be made in talks on the future UK-EU partnership between October 2018 and March 2019. RW said it was realistic to expect that progress could be made given it was “in the interest” of all parties concerned, adding that the European Commission and MEPs did in fact want to make headway before European Parliament elections and the end of the current Commission’s mandate.

  • Parliament’s meaningful vote: Labour MP Seema Malhotra sought clarity around what Parliament’s meaningful vote in autumn 2018 would be on. SB said the Government was confident Parliament would approve the Withdrawal Agreement and the framework of the future UK-EU partnership. She said she could not offer the precise detail on the wording of the motion to be put before Parliament.

  • Planning for a ‘no deal’ scenario: Conservative MP Peter Bone followed-up with a question about the upcoming White Paper and whether it would offer detail on what would happen in the event of a ‘no deal’ scenario. RW said this was not the focus of the White Paper in question. Pressed further on what work was being done in the event of a ‘no deal’ scenario, SB said some Brexit bills would ensure frameworks were in place in the event of such an outcome, adding that contingency planning had also been undertaken.

  • CRAG process: Benn asked about the application of the CRAG process to the Withdrawal Agreement and if Parliament would be offered a vote in this within 21 days. SB outlined how the treaty would be subject to the CRAG process and how the Government would act in this context.

Lord Chancellor on enforcing rights

The Joint Committee on Human Rights have taken evidence from David Gauke MP, Lord Chancellor and Secretary of State for Justice, in his first appearance before the Committee.

The full session can be viewed here and a summary is included below:

Legal Aid

  • Fiona Bruce MP (Conservative, Congleton) said that in evidence the Committee had been told that the half population wouldn’t be able to access legal advice if they thought their human rights had been breached and if they need legal aid. The Lord Chancellor replied that MoJ was undertaking a review of the changes to legal aid that occurred during the coalition government. He said the review was looking at all the evidence, with stakeholders on the availability of legal aid and the impact of that was definitely something that needed to be considered. The Lord Chancellor also argued that access to justice was not just about legal aid but also in terms of making the process easier and take away the complexity to make it more user friendly. The Lord Chancellor also pointed to the courts and tribunals reform program as showing that things can be done with greater convenience to the individual.

  • Fiona Bruce MP also asked if the MoJ was looking at some of the areas of law where legal aid was no longer available and is limited. The Lord Chancellor said there are there things to be done that make the process easier for the individual such as waiting times and bringing more of the application online. He said that for civil claims there were also changes in “beta stage” that would improve process.

Telephone gateway services

  • Fiona Bruce MP went on to ask about the procurement process for telephone gateway services in the areas of education and discrimination law, which the department had just announced it was cancelling due to lack of tenders. She asked how the Lord Chancellor proposed to ensure legal aid continues to be available in those area. The Lord Chancellor said he was engaging with education department, and argued subject to qualifying criteria you could get help from the Civil Legal Advice for problems including a range of issues and so that support was available.

Exceptional case funding scheme

  • Fiona Bruce MP stated that last year only 648 cases were supported under the exceptional case funding scheme and she argued one of the key problems is cost of filling in the necessary forms which cannot be reclaimed from the Legal Aid Agency so lawyers do it at their own cost. The Lord Chancellor argued the department was looking at exceptional funding in the LASPO review.

  • Fiona Bruce MP stressed that law centres cannot cover costs for giving advice which is legally aided. She went on to suggest linking legal aid with the benefits system because many who are not eligible simply cannot afford access to legal advice and this led to increased representation by individuals in court. In response, the Lord Chancellor said the decision was made in the fiscal climate we were in at the time, and argued that exceptional cases fund was for exceptional cases only so evidently not all will receive it, though it was in the review.

  • Fiona Bruce MP also argued that in family law cases it was increasingly hard to get legal aid unless in case of domestic violence and when children were involved. She said vulnerable women cannot get legal aid and areas like that impacted on human rights. The Lord Chancellor said this would be included in review, and reaffirmed that in domestic cases legal aid is available.

  • Baroness Hamwee (Liberal Democrat) focused on inquests saying she had heard from families that it felt adversarial and they felt outgunned by public bodies who were able to field “ranks of lawyers”. She asked if it was possible to deal with such concerns through reform or looking at it from legal aid perspective. In responding the Lord Chancellor said the objective was to make inquests less adversarial and one where the end results does not become more difficult for families. He said his department was currently setting out the victims’ strategy over the summer that would tie in with a number of victims’ issues.

  • Baroness Hamwee queried if there was a chance to look at in the issue in conjunction with the LASPO review because the two issues could not be pigeon holed but were in her opinion related. The Lord Chancellor stated that they were on different timings with the LASPO review expected by the end of the year.

Windrush Scandal

  • The Chair of the Committee, Harriet Harman MP (Labour, Camberwell and Peckham) said witnesses who had been detained during the Windrush Scandal didn’t get legal aid and didn’t get a possible appeal. She asked if the Lord Chancellor would join the Home Secretary in reviewing the scandal to ensure rights of individuals was included. The Lord Chancellor said he will support the Home Office review to protect rights of individuals and to ensure that those affected are able to get through the system. He added the Home Office wanted to make the system easier to the point where legal advice would not be needed.

Litigants in person

  • Karen Buck MP (Labour, Westminster North) noted the rise in litigants in person, she cited a leaked internal MoJ report listing the implications of clients being unrepresented. She asked if the LASPO review was looking at how this generated costs elsewhere in the system. The Lord Chancellor said the point was often made that costs occur somewhere else in system, and the MoJ was looking at evidence of that in the LASPO review. He said litigants in person were provided funding and the department has a strategy for structural support for them.

  • Baroness O’Cathain (Conservative) asked what support or training was provided to litigants in person. The Justice Secretary said his department have a strategy for providing practical support and advice, and had done more to train the judiciary to support litigants in persons in the courts.

  • Karen Buck MP asked what evaluation had been carried out to establish what the average outcome was in cases were the litigant was representing themselves. The Justice Secretary’s said these were the types of issues he was seeking evidence on as part of LASPO review.

Wellbeing of solicitors

  • Fiona Bruce MP highlighted a concern over the moral of solicitors due to the low remuneration of legal aid work. She also stressed need to support those supporting the most vulnerable in society. In response, the Lord Chancellor said he recognized the important work legal aid lawyers did and said he very much supported it.

House of Lords

The Courts and Tribunals (Judiciary and Functions of Staff) Bill

The Courts and Tribunals (Judiciary and Functions of Staff) Bill was introduced in the House of Lords last week.

The Bill introduces the first set of court reform measures relating to the deployment of the judiciary and enabling staff to exercise certain judicial functions.

Most of the measures in the Bill were introduced in the Prisons and Courts Bill which fell with the dissolution of Parliament ahead of the General Election in 2017. There are however additional measures which would further provide for flexible judicial deployment and related judicial matters.

The measures in the Bill relate to some of the policies outlined in the Government consultation on Transforming our Courts and Tribunals.

The Bill allows for more flexibility in the use of judicial resources in:

  • Enabling temporarily appointed Deputy High Court Judges to sit in any court of tribunal which a Deputy High Court Judge could usually be deployed;
  • Removing the restriction on a judge being the President of more than one chamber of the First-tier Tribunal or Upper Tribunal;
  • Enabling Recorders to sit as judges in the Upper Tribunal and senior employment judges to sit as judges in the First-tier Tribunal or Upper Tribunal;
  • Enabling Recorders to sit as judges in the Upper Tribunal and senior employment judges to sit as judge-arbitrators;
  • Allowing the President of the Employment Tribunals in England and Wales and Scotland to sit in the Employment Appeal Tribunal.

  • Amend the title of the “Chief Bankruptcy Registrar” to “Chief Insolvency and Companies Court Judge” and extending the Lord Chancellor’s power under the Courts Act 2003 to amend other titles or comparable offices.
  • Allowing for court and tribunal staff across the criminal, civil and family courts and tribunals to exercise judicial functions and give legal advice to judges of the family court and justices of the peace.
  • Empowers the relevant procedure rule committees to determine which functions authorised staff may or may not exercise in their respective jurisdiction.
  • Extends statutory independence and independence currently enjoyed by justice’s clerks to all authorised court or tribunal staff when exercising judicial functions, before removing the post of justices’ clerk from statute.

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