Last week the Law Society’s Head of Justice, Richard Miller, gave oral evidence to the Women and Equalities Select Committee for its inquiry on enforcing the Equality Act.
His evidence focused on the impact of the withdrawal of legal aid for discrimination cases under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
The Courts and Tribunals (Judiciary and Functions of Staff) Bill returned to the House of Commons this week for Committee Stage. Last week, at Second Reading of the Bill, the Law Society was mentioned 11 times in the debate including a direct mention of our president, Christina Blacklaws, and our work on LawTech by the Lord Chancellor.
Brexit is dominating the parliamentary agenda this week, with the first three days of the 'Meaningful Vote' debate on the prime minister's EU Withdrawal Agreement taking place in the House of Commons, while the House of Lords also saw two days of debate on the deal. On Tuesday the House of Commons found the government in contempt of Parliament over its refusal to publish legal advice on the Northern Irish Backstop – the first time ever that a British Government has been found in contempt. The full legal advice was subsequently published, and confirmed that the UK would not be able unilaterally to exit the backstop arrangement set out in the Withdrawal Agreement once it came into force.
In non-Brexit related business, the Counter-Terrorism and Border Security Bill was considered at Report Stage in the House of Lords on Monday. The debate saw the Law Society positively referenced five times, while a government amendment, supported by the Law Society, that addressed our key concerns regarding the right to access legal advice in private was passed by the House.
Stella Creasy MP led a Westminster Hall debate on the gender pay gap on Wednesday, and Ms Creasy tweeted her thanks to the Law Society for its support.
This week in Parliament
Monday 3 December
House of Commons
- Home Office oral questions
- Exiting the European Union Committee oral evidence session on the progress of the UK's negotiations on EU withdrawal
House of Lords
Counter-Terrorism and Border Security Bill Report Stage (Day 1)
Tuesday 4 December
House of Commons
- Debate on Section 13 (1)(b) of the European Union (Withdrawal) Act 2018 (Day 1) [Meaningful Vote debate]
- Courts and Tribunals (Judiciary and Functions of Staff) Bill Committee Stage (Day 1)
- Justice Select Committee oral evidence session with the Director of Public Prosecutions
Wednesday 5 December
House of Commons
- Debate on Section 13 (1)(b) of the European Union (Withdrawal) Act 2018 (Day 2) [Meaningful Vote debate]
- Westminster Hall debate on the gender pay gap
- International Trade Select Committee oral evidence session on the work of the Department for International Trade
House of Lords
- Withdrawal Agreement debate (Day 1)
Thursday 6 December
House of Commons
- Debate on Section 13 (1)(b) of the European Union (Withdrawal) Act 2018 (Day 3) [Meaningful Vote debate]
- Exiting the European Union oral questions
- Courts and Tribunals (Judiciary and Functions of Staff) Bill Committee Stage (Day 2)
House of Lords
- Withdrawal Agreement debate (Day 2)
Last week in Parliament
Tuesday 27 November
House of Commons
Courts and Tribunals (Judiciary and Functions of Staff) Bill
The Courts and Tribunals (Judiciary and Functions of Staff) Bill received its Second Reading in the House of Commons on 27 November.
The Law Society briefed ahead of the debate, and we were mentioned 11 times, including a direct mention of our president Christina Blacklaws and our work on LawTech by the Lord Chancellor.
The full transcript can be found here, and a summary is included below:
Government move the Bill
- The Lord Chancellor, the Rt Hon David Gauke MP, moved the Bill. He argued that in order for our justice to work at its fullest capacity, then it must realise the huge potential of new technology, and that is why the government has led the court reform and modernisation programme alongside HMCTS. Referring to research and the adoption of new technologies, he said that the government 'have instituted a law tech committee, led by Christina Blacklaws of the Law Society, which is designed to take us forward.'
- He acknowledged and supported arguments from others making the case for the importance of retaining 'the skilled human being' in our legal system, to apply judgment to the facts or issues of a case, but that technology can improve transactional and admin operations.
- Regarding the delegation of judicial functions as set out in the Bill, he argued that it should be left to the rule committees to detail which functions should be delegated. He acknowledged and welcome the amendment in the Lords which ensures that only a judge would have the power to deprive people of their liberty or eject them from their family home. He said that safeguards were important, and that the delegation of certain judicial powers to court and tribunal staff 'needs to be done sensitively and sensibly.'
- On further court reform, he noted that the government will introduce further courts legislation as soon as parliamentary time allows.
Initial opposition response
- Shadow Justice Minister Yasmin Qureshi MP criticised the fact that the Bill did not include the other legislation on court reform proposed in the Queens Speech. She argued that this Bill is designed primarily to 'cut costs'.
- She said that the Labour Party support modernisation, but that 'it should be about investing to improve our services; it should not be a smokescreen for cuts and closures'.
- She called on the government to pause its programme of court closures while new technologies and online courts are being tested.
- She said that there are a number safeguards that the Labour Party will seek during the Bill's progress. These include:
- Limits on the delegation of judicial powers to non-judicial personnel;
- Further oversight and accountability;
- Seeking detail on the delegation of judicial functions;
- The right for a decision made by someone who has been delegated judicial functions to be open to a full reconsideration or review by a judge;
- An amendment, supported by the Law Society and the Bar Council in the House of Lords, to propose a statutory right to judicial reconsideration for any party to a decision by an authorised person;
- She noted concerns about the lack of minimum qualifications for the authorised staff, particularly where they are not legally qualified. She noted the Law Society's call for a required level to be set at three years' post-qualification, and asked the Lord Chancellor to consider our recommendation.
- Qureshi also raised concerns that the proposed prohibition of alleged abusers from cross-examining their victims in domestic abuse cases was not included in this legislation.
- The Chair of the Justice Select Committee, Bob Neill MP (Conservative) shared his regret that the Bill was not more substantial and did not include provisions previously included in the Prisons and Courts Bill such as the prevention of cross-examination of victims in domestic abuse cases. He supported the current Bill, but said that it is possible to meet the concerns raised by the Law Society and others in a 'proportionate way'. He also highlighted the concerns raised by the National Audit Office in their report.
- Thangam Debbonaire MP (Labour) raised concerns about the rights of refugees and asylum seekers in the legal process. She highlighted the context of cuts to legal aid and the impact on access to justice.
Responding to the debate
- Responding to the debate, Shadow Justice Minister Imran Hussain MP said that the Bill was devoid of any substantial change that will encourage greater access to justice. He highlighted legal aid cuts and court closures and the impact on access to justice, which this Bill would do nothing to improve. He confirmed that the Labour Party would abstain on the Bill at Second Reading, but will table amendments at Committee Stage.
- Responding on behalf of the government, Parliamentary Under-Secretary of State for Justice Lucy Frazer QC MP said that this Bill is part of a wider programme of court reform. Responding to the concerns raised by the Opposition, she argued that 'qualifications for staff giving legal advice should be set out in regulations, as they have been since 1979. Qualifications ought to depend on the functions involved, and many of the functions that staff currently exercise are straightforward and routine and do not require a legal qualification'.
House of Lords
Oral question on requiring organisations to produce action plans to respond to their gender pay gap reports
Baroness Prosser asked a Question in the House of Lords on what plans the government has to require organisations to produce action plans to respond to their gender pay gap reports. You can read the full exchange here.
In a brief exchange in the House of Lords Minister of State for the Home Office, Baroness Williams of Trafford, informed the House that over 10,000 employers had already reported their gender pay gap data, however stressed that reporting is 'just the first step'. She said that the UK needs cultural change which 'cannot be imposed from above', which is why the government is looking to tackle drivers of the gender pay gap. Baroness Prosser responded that the government should be doing more to close the pay gap for older women who re-join the work force after having children, where she insists the gap is 'most pronounced', to which Baroness Williams said the government is already targeting this age band.
A summary of the discussion is below:
Cultural change: Baroness Williams of Trafford said that change cannot be imposed from above, but that a cultural shift was needed instead. Baroness Burt of Solihull said that 'law can be a driver of culture' and that all companies with 50 or more employees should be included in the gender gap reporting requirements, to ensure SMEs can 'start on the path' to managing their pay gaps. Baroness Williams agreed and added that over 300 SMEs have reported their gender pay gap despite having no requirement to do so.
Age: Baroness Prosser said the gender pay gap is most pronounced among slightly older women who have returned to work part time having had children, but who could not afford childcare. She recommended initiatives such as women only skills programmes to break down full time jobs into part time jobs as an example of actions the government could take. Baroness Williams responded that the Women's Business Council is focused on this cohort of women and the support it can offer.
NI contributions: It was suggested by Baroness Williams that there could be a break in National Insurance contributions for people who work and then step out of work, or who work from home, emphasising that 'a flexible workforce is important to the future economy'.
Economic benefit: Baroness Williams noted that bringing more diversity to the workforce would increase the economy by over £150 billion by 2025, to which Baroness Jenkin of Kennington asked whether the government has plans to include sectoral analysis to monitor progress. Baroness Williams responded that she hopes that this is where the future is heading.
Wednesday 28 November
House of Commons
Law Society oral evidence to Women and Equalities Committee session on enforcing the Equality Act
The Law Society's Head of Justice, Richard Miller, gave evidence to the Women and Equalities Committee as part of their inquiry on enforcing the Equality Act, the law and the role of the EHRC.
Richard appeared on a panel alongside:
- Alex Hayes, Managing Director of the Equality Advisory and Support Service;
- Christina McAnea, Assistant General Secretary, UNISON; and
- Nick Whittingham, Chief Executive, Kirklees Citizens Advice and Law Centre.
The full transcript of the session can now be found here. During the session:
- Richard Miller noted that legal aid was withdrawn for discrimination cases under LASPO and argued that the telephone service for discrimination advice is hard to find information about. McAnea, Hayes and Whittingham all agreed that there was not enough information out there about the telephone helpline.
- In relation to what kinds of discrimination cases were being brought to the advice services, Hayes reported that around 65% of the inquiries they have relate to disability, which mirrored UNISON's findings, with the TUC reporting 57%.
- Regarding the percentage of cases in which enforcement action is taken, all reported that a minority of cases resulted in enforcement action. Richard Miller noted historic legal aid figures, which show that only 4 of around 6,000 cases resulted in an award from a court or tribunal in 2013-14. He argued that this provides no effective enforcement action.
- McAnea noted that often in employment cases where discrimination is a factor the complainant may still be employed, which creates further issues. Often it is the role of the union to give advice in those circumstances rather than initiate legal action.
- Whittingham argued that legal costs was also a deterrent to taking enforcement action. Legal aid had given clients protection against costs.
- Regarding non-disclosure agreements (NDA), Whittingham said that around 80% of settlements include an NDA. He argued that people bring claims often to try and stop others from having to go through the same circumstances, but that there are many pressures on the individuals to accept a settlement, such as cost, time and risk. Richard Miller noted that the Law Society were submitting written evidence to the Committee's separate inquiry into NDA's.
- The panellists referred to the Supreme Court judgment on employment tribunal fees and highlighted its arguments on access to justice and the rule of law. Richard Miller highlighted the evidence to the Supreme Court by Abigail Adams which argued that it was 'economically irrational' to bring forward fees.
- The panel explored whether the benefit of enforcement is to society or to the individual. Is it possible to increase enforcement without placing an additional burden on individuals? The panellists noted that there are ways to lift the burden in relation to cost, and access to advice and representation. In addition, Whittingham noted that organisations could have a greater role to play in bringing action on behalf of protected characteristics groups, or there could be a greater utilisation of class action.
- The nature of our adversarial justice system was raised, and Richard Miller contrasted it with the more inquisitorial approach in countries like Germany. Both systems have strengths and weaknesses.
- Cost was perceived as a significant barrier for those seeking to bring a discrimination claim. Richard Miller highlighted the significant drop in cases brought to an Employment Tribunal following the introduction of fees.
- All of the panellists reported that they have semi-regular engagement with the EHRC and were supportive of its work.
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