On Wednesday, a debate was held in Westminster Hall regarding the provision of legal aid. This followed the launch of the Law Society’s campaign calling for the restoration of legal aid for early advice in housing and family cases last week. The debate attracted contributions from several MPs across the main political parties and the Law Society was mentioned in the debate 17 times. We were also mentioned three times by two peers in the Committee Stage of the Sanctions and Anti-Money Laundering Bill.
Last week the Justice Select Committee published its pre-legislative scrutiny of the draft personal injury discount rate clause. The Law Society was mentioned in the report and several of our recommendations were adopted. Read our press release following publication.
We also saw two further publications from select committees, with the Exiting the EU Select Committee publishing a report on the progress of the UK's negotiations on EU withdrawal, and the Public Accounts Committee publishing a report on the cost of clinical negligence in trusts.
This week the European Union (Withdrawal) Bill will proceed to Days 4 and 5 of Committee Stage on Monday and Wednesday. These sessions will focus largely on devolution and the devolved assemblies. Elsewhere, the Secretary of State for Exiting the EU, David Davis MP will come before the Exiting the European Union Select Committee on Wednesday.
The Ministry of Justice will face scrutiny at Justice Oral Questions on Tuesday. Topics to be raised include legal aid and early advice, and the operation of the UK legal system following the UK’s exit from the EU amongst those tabled.
The Sanctions and Anti-Money Laundering Bill proceeds to Day 3 of its Committee Stage in the House of Lords on Wednesday, and on Thursday there will be a general debate on ensuring regulation is balanced, cost-effective, easy to understand and properly enforced.
This week in Parliament
Monday 4 December
- Communities and Local government Questions
- European Union (Withdrawal) Bill – Committee Stage (Day 4)
- Debate on the Economy in light of the Budget Statement
Tuesday 5 December
- Justice Questions
- Home Affairs Select Committee Oral Evidence Session – Home Office delivery of Brexit: policing and security cooperation
- Treasury Select Committee Oral Evidence Session – Autumn Budget 2017
- Oral Question on the EU and proposals on the Irish border problem (Lord Dykes)
Wednesday 6 December
- European Union (Withdrawal) Bill – Committee Stage (Day 5)
- Westminster Hall Debate – government financial support for victims of terror attacks
- Exiting the European Union Select Committee Oral Evidence Session – with Secretary of State for Exiting the European Union, David Davis MP
- International Trade Select Committee Oral Evidence Session – Continuing application of EU trade agreements
- Sanctions and Anti-Money Laundering Bill [HL] – Committee Stage (Day 3)
Thursday 7 December
- A debate on ensuring regulation is balanced, cost-effective, easy to understand and properly enforced (Baroness Neville-Rolfe)
Friday 8 December
Last Week in Parliament
Monday 27 November
House of Commons
Launch of the government’s Industrial Strategy White Paper
Business Secretary Greg Clark MP launched the government's Industrial Strategy White Paper on Monday.
The paper is the government's long-term vision to create an economy that boosts productivity and earning power throughout the country. They pledge to build on the country's economic strengths and embrace the opportunities that technological advances offer in improving productivity and quality of life.
In his foreword to the White Paper, Greg Clark says the paper seeks to strengthen the five pillars of a transformed economy: innovation, people, infrastructure, places and the business environment.
The White Paper also mentions professional and financial services as one of the strongest UK economy sectors the strategy aims to build on, along with automotive, aerospace, the creative industries and life sciences.
The government has set a series of industrial targets, and they also pledge to create an independent Industrial Strategy Council to assess their progress against these plans and to make recommendations to them going forward.
The White Paper also sets out four “grand challenges”, where the government will take advantage of global trends to put the UK at the “forefront of the industries of the future.”
The four challenges are:
- Leading the artificial intelligence and data revolution
- Maximising the advantages for UK industry from the global shift to clean growth
- Using innovation to meet the needs of an ageing society
- Becoming a world leader in the future of mobility.
House of Lords
Question on the Domestic Violence and Abuse Bill
Baroness Donaghy asked the government whether the proposed Domestic Violence and Abuse Bill will include measures to prevent violence against women and girls as well as criminal justice measures to deal with perpetrators. The Minister of State for the Home Office, Baroness Williams of Trafford, confirmed that the government are committed to a rigorous and comprehensive consultation on the proposed Domestic Violence and Abuse Bill to identify all the legislative and non-legislative measures that can be taken. They will engage directly with the various women’s groups and charities which have an interest in this area.
Tuesday 28 November
House of Commons
Treasury Oral Questions
At Treasury Questions, Kevin Hollinrake MP (Conservative, Thirsk and Malton) asked the Chancellor of the Exchequer about access to justice for medium size enterprises. He said small and medium-sized enterprises cannot access justice because the banks are too wealthy to sue. He invited the Economic Secretary to the Treasury Stephen Barclay MP to discuss this issue with the APPG on Fair Business, Banking and Finance, who are calling for an independent financial services tribunal to provide accountability. The Economic Secretary to the Treasury agreed to meet Kevin Hollinrake MP to discuss the issue and highlighted that the ‘industry’ has been discussing the role of the Financial Ombudsman Service and how it can step in to give ‘greater comfort’ to those who need to bring forward claims.
Conclusion of the Budget Debate
The House of Commons concluded its debate following the previous week’s Autumn Budget.
In the debate, the Chair of the Digital, Culture, Media and Sport Select Committee, Damian Collins MP (Conservative, Folkestone and Hythe) announced that the Committee will be looking at the distribution of disinformation and how companies’ algorithms either support or could act against it. He said that we need to make sure new services are designed based on our data footprint, that companies behave ethically and responsibly and that we can check they are safeguarding the interests of the people they seek to serve through that technology. He welcomed the announcement of the creation of the centre for data ethics and innovation in this regard.
Wednesday 29 November
House of Commons
Westminster Hall Debate on the provision of legal aid
Following the launch on Monday of the Law Society’s campaign to restore legal aid for early advice in housing and family cases, the provision of legal aid was debated in Westminster Hall. The full debate can be read here, and a copy of our parliamentary briefing on launch of the early advice campaign can be read here.
The debate attracted contributions from a number of MPs across the main political parties. The Law Society was mentioned in the debate 17 times, including references to our work on the LASPO review (“Access Denied?”), the Legal Aid Deserts campaign, and our recently launched campaign to restore legal aid for early advice.
Moving the debate, Paul Sweeney MP (Labour, Glasgow North East) criticised the current provision of legal aid, and described the impact on access to justice of cuts made to legal aid including of furthering inequality, marginalisation of the most vulnerable and it’s wider impact on society and public services.
Following contributions from backbench MPs, Shadow Minister for Justice, Gloria de Piero MP (Labour, Ashfield) shared concerns regarding the cuts to legal aid and the impact on access to justice. She welcomed the recent Bach Commission, and highlighted concerns regarding access to legal aid for victims of domestic violence. She mentioned the research from the Law Society regarding early advice and argued that the government has already acknowledged there is a false economy in the removal of early legal advice by reporting there is a cut in the number of families and couples seeking mediation.
Responding to the debate, the Minister of State, Dominic Raab MP (Conservative, Esher and Walton) described legal aid as a “fundamental pillar of access to justice”. Healso stated that “I think we all agree that we need to exercise control over legal aid and other precious public services in order to ensure that the finite, precious resources go to those who need them most.” He noted that LASPO was contentious and that is why they agreed in the legislation to review the implementation which they are doing now. He noted that the “financial pressures in which the LASPO reforms were introduced remain with us today”. He provided assurances that they are taking domestic violence and helping victims access justice very seriously, and challenged Labour members to identify where they would find the £400m needed to fund the reforms suggested by the Bach Commission.
House of Lords
Sanctions and Anti-Money Laundering Bill – Committee Stage (Day 2)
The House of Lords debated the Sanctions and Anti-Money Laundering Bill in the second day of Committee Stage. The next day of Committee Stage will take place on Wednesday 6 December. The Law Society briefed a number of Peers before the Committee stage and drafted amendments. Our parliamentary briefing can be read here.
The Law Society was mentioned twice in the debate by Baroness Northover, the Liberal Democrat’s Foreign Affairs spokesperson in the Lords. She said our briefing emphasised that “guidance should be given on the terms in Clause 17, as well as those in Sections 2, 10, 15 and 46… [and] suggests that Clause 17 should be renamed ‘UK nexus’ as its current subject matter does not deal sufficiently with ‘extra-territorial application.’”
Baroness Northover went on to say the Law Society were concerned that UK courts should have the jurisdiction to hear wrongful listings in the case of UN listed persons, and that we had pointed out that “the Bill does not require or permit a UK court to quash a wrongful listing for a person who is UN listed and can only ask the government to use their best endeavours to secure a de-listing in the UN.”
Responding later for the government, Foreign Office Minister Lord Ahmad of Wimbledon acknowledged the Baroness’ “valid point” raised by the Law Society, and said he would certainly look at it again.
Other key points from the debate included:
Extra-territorial application – Lord Ahmad defended the inclusion of Clause 17, but acknowledged that the overseas territories and Crown dependencies must follow the UK government’s foreign policy, including the sanctions they applied to bodies incorporated or constituted in these jurisdictions. He added that the Bill is drafted in a way that reflects the reality that some jurisdictions legislate on their own behalf, while others are directed by Orders in Council.
Right to request variation or revocation of designation – Crossbencher Lord Pannick spoke in favour of his amendment (54) to Clause 19, to oblige the Minister to address a request to vary or revoke a designation within a specific, “reasonably practicable” timeframe. He said this obligation was needed because the Bill currently precludes someone on a sanctions list from seeking a review from the court until the Minister has made this decision. Lord Pannick withdrew this amendment following Lord Ahmad’s assurances that the government intended to act promptly to requests for reassessments, and that this reassessment process existed to allow designated persons to seek swift redress when wrongly designated.
Periodic review of certain designations – Lord Pannick spoke on his amendment (56) to Clause 20, which would reduce the time required for the Minister to consider any designation from three years down to one year – a detrimental change from the EU system of a periodic review every six months. Again Lord Pannick withdrew this amendment after Lord Ahmad outlined the system of safeguards the government had built into this Bill which he said provided at least an equivalent, and in some respects greater, level of protection to that afforded to individuals designated by the EU. Lord Ahmad said designated persons could request reassessments of their designations at any point, and could challenge in court on judicial review, and that the Bill mandated annual reviews of each sanctions regimes.
Review by appropriate Minister of regulations under section 1 – Lord Collins of Highbury and Baroness Northover said amendments 58 and 59 on Clause 26 helpfully clarified the commitments that Ministers must make to review the regulations they have put in place – making these reviews more transparent and accountable. The amendments also give a time by which this must happen (no later than six months after completion the findings must be laid before Parliament) and more detail on what they should include. Lord Ahmad confirmed the government were reflecting on amendment 58 specifically, acknowledged his Labour counterpart’s suggestion that they meet between Committee and Report stage to work out some of the parameters.
Court review of decisions – Addressing amendment 62 on Clause 32, Lord Pannick said the Bill appeared to deny a designated person the right to request a domestic court quashes an UN sanctions listing (as a result of procedural unfairness for example). He went on to say the Bill provided a flagrant breach of the rule of law and denies any effective judicial remedy in the UK, adding that no-one should be designated in this country if our courts are satisfied that the designation is as a result of an unfair or unjustifiable decision. Lord Pannick temporarily withdrew his amendment after Lord Ahmad said the appropriate way to deal with UN designations that shouldn’t be in place was at the UN, and that the UK was bound by international law to maintain sanctions against the person unless and until the UN Security Council agrees to remove this designation.
Thursday 30 November
House of Commons
Justice Select Committee pre-legislative scrutiny on draft personal injury discount rate clause
The Justice Select Committee published its pre-legislative scrutiny of the draft clause on the personal injury discount rate. The Committee took written and oral evidence and the Law Society made a submission to the inquiry. The Law Society was mentioned in the report and a number of our recommendations were adopted. A copy of our press release following publication can be found here.
- The Committee has called for clarity on what the government mean when they say they support the principle of full compensation. In our submission, The Law Society focused on the risk of under-compensation and we would welcome further clarification from government on this issue.
- The Committee have also mirrored our recommendation and called for clear and unambiguous evidence to be gathered about the way claimants invest their lump sum damages before legislation in enacted. The Law Society’s submission on this point was mentioned in the final report.
- The Committee also recommend that the expert panel should advise on the first review of the discount rate after the legislation is implemented. This is contrary to the government view that the first review would only need the government actuary and treasury with the expert panel only needed for subsequent reviews.
- The Committee want safeguards to protect the vulnerable from under-compensation. The Committee recommend if the Lord Chancellor goes against the expert panel then reasons should be published. The Committee also recommend that the impact of any change to the discount rate on motor insurance premiums should be reported upon each time.
Friday 1 December
House of Commons
Exiting the EU Select Committee report on the progress of the UK’s negotiations on EU withdrawal
The Exiting the EU Select Committee have published their report on the progress of the UK’s negotiations on EU withdrawal. The Law Society submitted written evidence to this committee that can be found here.
In the accompanying press release, the Committee also confirm that they are considering the sectoral analyses from the Secretary of State for Exiting the European Union and will issue a separate response.
Summary of key findings
- The government is urged the government to publish a White Paper on the proposed implementation period as soon as possible after December's European Council and to set out specific proposals on the UK's future 'deep and special' relationship with the EU
- Any deal on citizens' rights should be 'ring-fenced'
- The Committee concludes it is not possible to reconcile there being no border between Northern Ireland and the Republic of Ireland with the government’s policy of leaving the Single Market and the Customs Union.
Public Accounts Committee Report on the cost of clinical negligence in trusts
The Public Accounts Committee released a report calling for bold action to address the impact of clinical negligence claims on resources available for frontline care and patients. The Law Society submitted a written submission to the Public Accounts Committee. This inquiry follows the publication of the National Audit Office report in September 2017 titled ‘managing the costs of clinical negligence in trusts,’which the Law Society also contributed to.
Summary of conclusions and recommendations
The report concludes that increasing financial pressures on the NHS have started to affect waiting times and the quality of care, which risks leading to even more clinical negligence claims and in turn even greater cost. They recommend that the Department and NHS Improvement should report back to the Committee by April 2018 on how they have ensured that trusts prioritise resources on patients that are most at risk of harm from increasing waiting times in the NHS.
The report notes that the government has been slow and complacent in its response to the rising costs of clinical negligence. They recommend that the Department of Health, the Ministry of Justice, and NHS Resolution take urgent and coordinated action to address the rising costs of clinical negligence. This includes:
- reviewing whether current legislation remains adequate, and reporting back to the Committee by April 2018;
- continuing to focus on actions to reduce patient harm - in particular harm to maternity patients; and
- appraising further measures to reduce the legal costs of claims, for example whether mediation should be mandated for certain types of claims.
- The report concludes that the government did not assess the impact of changes to legal reform on the volume of clinical negligence claims. They recommend that the Cabinet Office should consider including the “cost-shunting” impact of a policy when the impact assessment is produced and report back to the Committee by June 2018. Although this section notes concerns around fixed recoverable costs in the full report, the recommendations do not include anything specific in this area.
- The report describes the NHS’s culture when things go wrong as predominantly defensive, rather than candid and transparent, which limits its ability to learn lessons. They recommend that the Department of Health and NHS Resolution should work with trusts to identify and spread best practice in handling harmful incidents and complaints. This should include how trusts say sorry and support patients when things go wrong.
The report concludes that a lack of consistent data across the system means the NHS does not understand why people do (or do not) make claims, or the root causes of the negligence.
They recommend that the Department of Health, NHS Improvement and NHS Resolution need to work with trusts to ensure that a consistent classification is used across incidents, complaints and claims data. They should then use these data to provide insights into the reasons behind clinical negligence claims. They should report back to the Committee with a plan on how they should approach this by April 2018.
- The report notes that the time taken to resolve cases is rising, which is likely to worsen patients’ experience as well as increase costs. They conclude that the Department for Health, the Ministry of Justice and NHS Resolution need to clarify why it is taking longer to resolve claims and report back, by September 2018, on what actions they are taking to address this issue.
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