On Tuesday the House of Lords debated human rights priorities in the light of Brexit, and the Law Society was mentioned in the debate. On Thursday the House of Lords debated the recent report of the Bach Commission, and the Law Society was mentioned in the debate seven times, with support for our work and our campaigns on early advice and on legal aid deserts. Read more about our early advice campaign.
This week is a busy final week before Christmas. Our president Joe Egan is due to give oral evidence to the Justice Select Committee’s inquiry into Employment Tribunal Fees on Tuesday.
On Wednesday the European Union (Withdrawal) Bill has its final day of Committee Stage in the Commons. There will also be a Westminster Hall Debate on international human rights, while the Lords will be debating a report regarding justice for families, individuals and businesses post-Brexit and a report on connected and autonomous vehicles.
Thursday will see the Attorney General face questions in the House of Commons and there will be a Westminster Hall Debate on leasehold and commonhold reform and leasehold abuses.
This week in Parliament
Monday 18 December
- Finance Bill; Committee Stage (Day 1)
- A debate on the report from the EU Committee Brexit ‘trade in non-financial services’ (Lord Whitty)
Tuesday 19 December
- Justice Select Committee Oral Evidence Session on Employment Tribunal Fees with Law Society president Joe Egan, Unison, and Justice Minister Dominic Raab MP
- Finance Bill; Committee Stage (Day 2)
Wednesday 20 December
- European Union (Withdrawal) Bill; Committee Stage (Day 8 of 8)
- Westminster Hall Debate on International Human Rights Day and the UK’s role in promoting human rights
- Liaison Committee Oral Evidence Session with the Prime Minister
- Oral Question on advice from the Attorney General on the revocability of Article 50(2) and the UK’s intention to withdraw from the EU (Lord Thomas of Gresford)
- A debate on the report from the EU Committee Brexit ‘justice for families, individuals and businesses?’ (Baroness Kennedy of The Shaws)
- A debate on the report from the Science and Technology Committee on connected and autonomous vehicles (The Earl of Selborne)
- EU Financial Affairs Sub-Committee on financial regulation and supervision following Brexit
- EU Home Affairs Sub-Committee oral evidence session on the EU data protection package with Matthew Hancock MP
Thursday 21 December
- Attorney General Questions
- Westminster Hall Debate on leasehold and commonhold reform and leasehold abuses
- Oral Question on the impact of the UK leaving the EU on the provision of housing that people can afford (Lord Greaves)
Last Week in Parliament
Monday 11 December
House of Lords
Data Protection Bill [HL]; Report Stage (Day 1 and 2)
The Data Protection Bill was read at report stage for two days in the House of Lords (Monday 11 and Wednesday 13 December).
The Delegated Powers and Regulatory Reform Committee published a report on the Bill where there was no direct reference to legal professional privilege or specifically the processing of special categories (sensitive) data in order to provide legal advice.
Below are key points from the debate concerning automated decision making:
Lord Clement-Jones (Liberal Democrat)raised concerns relating to Clause 13, which relates to the prohibition and exemptions around significant solely automated decisions. He referred to Amendment 34-41, which relate to this clause. He said the Amendments to the Data Protection Bill would clarify that:
- an individual’s ability to claim that a decision had a significant effect on them—a prerequisite for triggering any of the protections that the GDPR has to offer relating to automated decision-making—can be grounded in a significant effect on a protected group under the Equality Act 2010.
- to claim that a decision was not solely automated—and therefore benefiting from none of this clause’s protections—there must be ‘meaningful human input’.
- where models are used solely or partially as the basis for significant decisions, with the grounds for processing drawing on UK law rather than on consent or contract, these models must have relevant metadata about them published, as well as information where applicable on how they meet the Equality Act’s public sector equality duty.
- Responding on behalf of the government, Minister of State for the Home Office, Baroness Williams of Trafford, said the government intends to replicate the GDPR as far as possible and that the Equality Act already provides the necessary safeguards for individuals. These amendments did not pass.
Tuesday 12 December
House of Commons
European Union (Withdrawal) Bill; Committee Stage (Day 6)
Day 6 of the Committee Stage of the European Union (Withdrawal) Bill took place on Tuesday. The Law Society briefed a number of MPs before the Committee stage.
Before the debate began, the government confirmed that it intends to introduce a sifting committee for statutory instruments arising from our withdrawal from the EU.
Votes and Proceedings in Day 6
- Chris Leslie MP (Labour) introduced New Clause 18, which sought to require the government to commission and publish an independent report outlining the constitutional implications of the powers within Clause 7. It was withdrawn after debate.
- The first vote was on New Clause 63, an official Labour clause that sought to ensure a statutory and institutional basis for future environmental protections. It was rejected by a majority of 22.
- Amendment 49, which sought to place a general provision on the face of the Bill to the effect that the Bill’s delegated powers should be used only so far as necessary, was rejected by a majority of 17.
- Tom Brake MP (Liberal Democrats) introduced amendment 124, which intended to prevent the regulation-making powers being used to create barriers to the UK’s continued membership of the single market, was rejected by a majority of 122.
- Stephen Doughty MP (Labour) introduced amendment 158, which tried to prevent the government of Wales Act 2006 from being amended by regulations under Clause 7, was rejected by a majority of 24.
- Amendment 25 from Labour’s frontbench, which would prevent the government using delegated powers under Clause 7 to reduce rights or protections was rejected by a majority of 22.
- Clause 7, which deals with deficiencies arising from withdrawal, was then approved without a vote.
Ten-minute rule bill on harassment in courts
Plaid Cymru’s Westminster Leader and Justice spokesperson Liz Saville-Roberts MP (Plaid Cymru, Dwyfor Meirionnydd) today introduced a Ten-Minute Rule Bill aimed at preventing convicted perpetrators using the Civil and Family Courts as a means of further harassing their victims.
The stated aim of the Bill, the Courts (Abuse of Process) Bill, is to prevent abuse of process in civil and family courts; to make provision about cooperation between court jurisdictions; to create offences when certain civil and family court orders are breached; to amend the rights and duties of certain parties to prevent abuse of process in civil and family court; and for connected purposes.
Introducing the Bill, Ms Saville-Roberts MP said:
- A survey conducted by Plaid Cymru earlier this year of 122 victims of stalking and domestic abuse had demonstrated the courts unintended role in harassment. 55% of the victims had court proceedings taken against them by their abusers. All of them had a restraining order in place.
- The purpose of the bill is to limit the ability of perpetrators of domestic abuse to abuse the courts as a calculated method to cause further distress.
- She revealed several case studies on this issue where courts have enabled abusers to get around restraining orders to cause further distress to their victims.
- She welcomed the cross-party support for the Bill, and called on the government to work with her to help bring this proposal into legislation.
The Bill was drafted in conjunction with the Victims’ Rights Campaign. The Bill will be scheduled to have its second reading on 16th March 2018, but due to the number of other Private Members Bills already scheduled for that day, it is unlikely to be heard.
House of Lords
Debate on human rights priorities in the light of Brexit (Lord Cashman)
On Tuesday a debate was moved by Lord Cashman (Labour) in the House of Lords on human rights priorities following Brexit.
We briefed a number of peers before the debate, and the Law Society was mentioned once in the debate by Baroness Chakrabarti.
Opening the debate, Lord Cashman remarked upon the recent celebration of Human Rights Day, and noted Britain’s long history with human rights, from the Magna Carta to our involvement in creating the ‘post-war international human rights consensus’ as signified by the Universal Declaration of Human Rights. He noted the growing division since the referendum on leaving the European Union, and shared concerns on human rights priorities following Brexit. He urged the government to prioritise ensuring that protections for EU workers are preserved and enhanced following Brexit, and stated that ‘Brexit must not reduce our rights but must be an opportunity to enhance them.’ He urged the government to ‘uphold the principle of non-regression in equality and human rights laws and ensure continued parliamentary scrutiny of any changes to our equality and human rights laws by restricting the use of delegated powers.’
Responding to the debate, Shadow Lord Chancellor, Baroness Chakrabarti (Labour) welcomed the discussion and urged the government to commit to protecting human rights as part of the Brexit negotiations. She raised concerns regarding the ‘lack of will and a culture of disregard for the importance of human rights and sometimes even for the rule of law.’ She cited the concerns raised by the Equality and Human Rights Commission, the British Institute of Human Rights and the Law Society regarding the potential loss of the European Charter of Fundamental Rights. She said that we should not want to just match European and international standards, but we should attempt to raise them.
The Advocate-General for Scotland, Lord Keen of Elie (Conservative) said that ‘human rights are central to the way we live now and to the way we wish to live in the future.’ He confirmed that protection of human rights remains a priority for the government. He stated that ‘the United Kingdom’s human rights framework is multi-layered and has developed over many years. Our departure from the European Union does not change our commitment to human rights, nor is there any reason why it should.’ He went on to confirm that as Britain leaves the EU, and in the EU (Withdrawal) Bill there will be no dilution of human rights post Brexit.
Other contributions from peers are summarised below:
Lord Faulks (Conservative) expressed concern at some of the economic consequences of leaving the EU, but shared his confidence that the government will protect human rights adequately in the future without being involved in the EU. He shared his wish that the final deal will deal adequately with citizens’ rights and security and criminal justice arrangements. He said that his confidence in the future protection of human rights post Brexit was based upon the courts historic tradition of respecting human rights, and the performance of Parliament in responding to human rights challenges as they arise, noting its work on modern slavery and equal marriage.
Baroness Drake (Labour) shared concern at the current situation in Northern Ireland, particularly the breakdown of the power sharing arrangement and the implications of any Brexit deal. She argued that ‘the amendment or repeal of the Human Rights Act may well be regarded by some as a breach of the Good Friday agreement itself.’She argued that the government needs to set out a clear vision on how the UK will remain a global leader on equality and human rights once we have left the EU.
Lord Alton of Liverpool (Crossbencher) praised the UK’s ‘strong and proud record in upholding human rights.’He discussed the way we deal with the crimes such as genocide, crimes against humanity and war crimes, citing ‘the inadequacy of how we give effect to our duties under the 1948 genocide convention to prevent, protect and punish’those who commit such crimes. He has asked the government to consider his Genocide Determination Bill, which he recently laid before Parliament.
Lord Judd (Labour) stated that human rights are ‘not just an optional asset to have in a nice society’, but rather a ‘fundamental cornerstone of a decent society and, more importantly, of stability and peace throughout the world.’
Baroness Campbell of Surbiton (Crossbencher) raised concerns about the future for the one in five UK citizens who have disabilities, and called upon the government to ‘ensure that there is no regression, so that disabled people continue to benefit from the convention [on the rights of disabled people] and see progress in the UK.’
Baroness Warsi (Conservative) explored whether the government is prioritising human rights, and welcomed the government’s assurances that they will not amend or repeal the Human Rights Act, but shared concerns that future legislation could seek to roll back the current level of protection.
Baroness Grey-Thompson (Crossbencher) focused on the impact on disabled people of Brexit, and urged that the UK maintains disability rights currently in EU legislation in relation to air and ship travel, web accessibility, accessible goods and services, public procurement and manufactured goods.
Baroness Whitaker (Labour) drew attention to EU nationals in the Roma community, many of whom fled from extreme discrimination to come here. She cited reforms to EU migrants’ access to welfare benefits as having a disproportionate impact on their well-being. She asked whether the implications for the travelling community of Brexit have been raised in the discussions regarding our exit.
Baroness Meacher (Crossbencher) focused on Brexit and the impact on human rights of the EU (Withdrawal) Bill. She questioned why the Bill removes the EU Charter of Fundamental Rights from domestic law, claiming that the rights in the charter are not enshrined in other UK law.
Baroness Kennedy of the Shaws (Labour) called for the government to prioritise human rights and to protect the human rights of individuals and those who will be most vulnerable in the Brexit negotiations.
Baroness Barker (Liberal Democrat) questioned the government on several issues around existing rights set out in the EU Charter of Fundamental Rights and whether they will still be a part of UK legislation following Brexit.
Wednesday 13 December
House of Commons
European Union (Withdrawal) Bill; Committee Stage (Day 7)
Wednesday saw the seventh day of Committee of the EU (Withdrawal) Bill in the House of Commons. The Law Society briefed MPs before the Committee Stage. Read a copy of our briefing .
Parliament’s vote on the final deal
- The Bill has now been amended after the Commons voted to accept Dominic Grieve MP’s Amendment 7 to Clause 9, which means that the UK’s final deal with the EU must now be approved by a statute passed by Parliament.
- This is the first time the government has been defeated and happened despite a last-minute concession from the government that they would bring forward an amendment at Report Stage making ‘it crystal clear that statutory instruments under Clause 9 will not enter into force until we have had a meaningful vote in Parliament.’
- 11 Conservative MPs in total voted against the government on Amendment 7 – Ken Clarke, Nicky Morgan, Bob Neill, Stephen Hammond, Sir Oliver Heald, Anna Soubry, Dr Sarah Wollaston, Jonathan Djanogly, Antoinette Sandbach, Heidi Allen and Dominic Grieve.
- The government have said they were concerned Grieve’s amendment would reduce their negotiating position with the EU, as MPs will have the power to force them back to the negotiating table should the final deal be deemed unsatisfactory.
Votes and proceedings in Day 7
The Commons considered Clauses 8, 9, 16 and 17, and Schedule 7.
- Yvette Cooper MP withdrew her New Clause 3 in favour of Dominic Grieve MP’s amendment 7, which would ensure Parliament will have to approve the withdrawal agreement with the EU and that it will be implemented by statute. This was accepted by a majority of 4 and now stands part of the Bill.
- Labour’s amendment 30, which would remove the proposed capacity of Ministers in Clause 9 to modify and amend the Act itself via delegated powers, was rejected by a majority of 19.
- The SNP’s amendment 241, which would require the Secretary of State to publish a strategy for seeking to ensure that reciprocal healthcare arrangements continue after the UK leaves the EU, was rejected by a majority of 21.
- Labour’s New Clause 1, which would establish the principle that there shall be a Commons triage committee which works alongside the Lords Secondary Legislation Scrutiny Committee to determine the level of scrutiny each statutory instrument shall receive, was rejected by a majority of 19.
- Heidi Alexander MP’s New Clause 22, which would give Parliament the power at a future date to determine whether we leave the single market by coming out of the European Economic Area, was rejected by a majority of 22.
- Labour’s amendment 26, which would prevent the government using delegated powers under Clause 8 to reduce rights or protections, was rejected by a majority of 24.
- Clauses 8, 9, 16 and 17, and Schedule 7, were all approved without division.
The eighth and final day of Committee Stage will be on Wednesday 20 December.
Thursday 14 December
House of Commons
Oral Questions to the Secretary of State for Exiting the EU oral questions
Exiting the EU Oral Questions took place on Thursday 14 December 2017.
- Secretary of State for Exiting the EU, David Davis MP, agreed with Conservative Kwasi KwartengMP that the government should secure the right to negotiate and sign free trade deals during an implementation period (to come into effect afterwards).
David Davis MP said he favoured a shorter, time-limited implementation period because some EU national parliaments had said to their governments that anything beyond two years could require a mixed approval procedure, which would involve over 30 parliaments’ ratification around Europe.
David Davis MP welcomed President Tusk’s recommendation that talks on the implementation period should start immediately and should be agreed as soon as possible. He added that an implementation period was in the interests of both the UK and EU because:
- it would allow the UK and EU27 governments to set up new infrastructure and systems to support the new arrangements.
- it will avoid businesses in the UK and the EU having to take any decisions before they know the shape of the final deal.
David Davis MP also said that a no deal outcome has become ‘massively less probable’ after the decisions made last week, adding that the best deal would be a non-tariff, barrier-free arrangement with the EU and the government would continue to prepare for all contingencies until they were certain they have a ‘good free trade deal’ with the EU.
David Davis MP said the Withdrawal and Implementation Bill would not be brought to the House of Commons until the government had agreed the withdrawal agreement. He broadly agreed with Michel Barnier’s expectation that these would be concluded in September or October 2018, so the Bill would be tabled after that date.
- Shadow Secretary of State SirKeir Starmer MP asked David Davis MP:
- if he would give an assurance that the government will not seek to undermine or overturn the Commons’ wish to have a meaningful vote, enshrined in law, at the end of the process.
- If the government would commit to dropping amendment 381, which seeks to put a fixed exit date on the face of the EU (Withdrawal) Bill
David Davis MP said that the effect of the government’s defeat was to defer the powers available under Clause 9 of the Withdrawal Bill until after the Withdrawal Agreement and Implementation Bill receives Royal Assent - meaning ‘that the timetable will be very compressed.’
- Asked by SNP Christine Jardine MP, Brexit Minister Robin WalkerMP said the Department for Exiting the EU had engaged closely with the financial services industry to ensure it thrives, receiving representations from stakeholders like UK Finance, TheCityUK, the Association of Foreign Banks and the Investment Association.
Responding to Labour’s Stephen Timms MP’s question on retention of passporting for financial services, Walker said the government should ‘explore all the possibilities to make sure that the UK and the EU continue to benefit from the fact that we have a global financial services centre here in London and the UK.’
House of Lords
Debate on the report of the Bach Commission
On Thursday 14 December 2017, the House of Lords debated the report of the Bach Commission, The Right to Justice.
The Law Society briefed Peers on the debate, particularly regarding our early advice campaign, and the Law Society was mentioned seven times in the debate, with early advice mentioned four times and our legal aid deserts campaign mentioned twice.
Opening the debate, Lord Bach (Labour) introduced his report, The Right to Justice, and thanked those who had assisted in its production. He outlined the report’s recommendations, and urged the government to act to improve access to justice and protect the rule of law. He specifically emphasised that ‘early advice… is absolutely essential, both in the interests of justice and in practical terms, to cut back the number of unrepresented litigants who end up before tribunals or family courts and who clog the system entirely.’
Responding to the debate, the Advocate-General for Scotland, Lord Keen of Elie (Conservative) said that ‘ensuring access to justice is a responsibility that every government takes seriously.’
He confirmed that the ‘government fully agree on the importance of access to justice, to which legal aid makes a valuable contribution, and our commitment to the principle of legal aid is unwavering.’
He mentioned the recent statutory instrument and the announcement regarding domestic violence, and noted that they had worked with other parties on this including Rights of Women, Women’s Aid and the Law Society.
He mentioned access to early legal advice and stated that ‘Access to such advice or information can help individuals to understand their options and it may dissuade them from pursuing court proceedings in circumstances where it is not the appropriate step to take to resolve their issues. That is why we have protected legal help in many cases and why we spent almost £100 million on legal help last year.’
He also touched on early advice in the context of legal aid for inquests. In response to Lord Bach, who raised early advice as an essential element in any legal assistance process, he responded that ‘we accept that. Indeed, we have been seeking to develop mediation and advice as being appropriate in this context.’
He noted that the government is reviewing LASPO and it will report back by the summer recess 2018.
Responding to the debate, Shadow Lord Chancellor, Baroness Chakrabarti (Labour) highlighted the impact of the cuts to legal aid on access to justice. She highlighted that LASPO has been widely criticised by expert stakeholders including the Bar Council, the Justice Committee and the Law Society. She cited the ‘pressing issue’ as ‘the abandonment of funding for most forms of early legal advice.’ She called on the government to consider the report as part of their review into LASPO.
Lord Goldsmith (Labour) noted that one of the consequences of LASPO was to reduce revenue available to law centres and legal advice centres. He noted the impact on Haringey Law Centre which he works with. He noted the Law Society’s legal aid deserts campaign. He called on the government to act to deal with the 1 million people who last year were not helped by legal aid but would have been helped before 2013.
Lord Wigley (Plaid Cymru) urged the government to adopt Lord Bach’s recommendations. He referred to the experience of Wales since LASPO, noting that they have had the largest decline in legal aid providers over the past five years. He noted that the Law Society published evidence in June on the number of litigants in person. He raised concerns about legal aid cuts and their impact on disabled people, citing the 99% collapse in the numbers receiving help for welfare cases. He called on the government to reverse the effects of LASPO.
Baroness Lawrence of Clarendon (Labour) noted the Law Society’s legal aid deserts campaign, and raised concerns around the lack of legal aid available in family law, particularly around divorce cases. She also raised concerns about the lack of availability of legal aid in employment law. She praised legal aid and pro bono, saying that without them she ‘would not have had the result I received almost 20 years after my son’s murder.’
Lord Low of Dalston (Crossbencher) welcomed the report and referred to his own commission, which identified that local advice services would need to be strengthened in the wake of the legal aid reforms. Their key recommendation was ‘for a national advice strategy supporting local advice and legal support plans produced by local authorities with the local not-for-profit sector and commercial advice agencies.’ He said that both Low and Bach Reports stress the ‘value of early intervention for preventing problems escalating further down the track. There is a great deal of evidence that early legal advice saves the state money. Advice has a triple strategic value. Not only is it valuable for assisting people with their immediate problem, it helps to make them more resilient generally in dealing with life’s challenges across the board. Moreover, helping people to be more resilient reduces the burden on public services and public expenditure further down the line. This is a case which it is in the government’s own interest to take very seriously. In fact, they cannot really afford to ignore it.’
Lord Howarth of Newport (Labour) raised concerns around the impact of LASPO through the rising workload of his local community law service, and the lack of available legal aid. He criticised the government for the reform and their approach since. He described the principle of access to justice for all as non-negotiable. He noted the Law Society’s early advice campaign and the wider impact on already stretched public services of legal aid cuts.
Baroness Whitaker (Labour) praised Lord Bach’s report as one of ‘signal importance’ and highlighted the impact on access to justice for the Gypsy and Traveller community since the cuts to legal aid. She highlighted the Law Society’s LASPO review and early advice campaign, noting the cost to the public purse of the rise in litigants in person.
Lord Faulks (Conservative) welcomed the report and urged the government to consider it as part of their review into LASPO. He welcomed many of the recommendations including those on exception case funding and on early legal help. He noted the old green form scheme, which allowed initial advice to be given at modest rates, allowing disputes to be resolved at an early juncture. He however warned of the potential cost implications of introducing all the recommendations.
Lord Falconer of Thoroton (Labour) welcomed the report which he contributed to, and agreed with the report’s assertion of a crisis in relation to access to justice. He cited examples where access to justice was being limited, and raised concerns on access to legal assistance for inquests.
Lord Dholakia (Liberal Democrat) described the ‘right to justice as fundamental to our process of law.’ He focused his remarks on the impact of legal aid restrictions on prisoners. He noted that ‘people who are imprisoned are particularly disadvantaged if they are unable to mount an effective challenge to abuses because they are unable to secure legal assistance and representation.’ He called for the government to review the availability of legal aid for prisoners who he described as ‘particularly vulnerable to injustice because they are detained behind prison walls.’
Lord Phillips of Worth Matravers (Crossbencher) criticised the effect of the withdrawal of legal aid through LASPO on access to justice, and asked whether the country could still afford an adversarial system of justice. He called for a commission to look at the entire justice system.
Lord Woolf (Crossbencher) welcomed the report and spoke about the recommendation to establish a justice commission. He noted that our legal system is an expensive system but one which does not provide for access to justice for all.
Lord Wasserman (Conservative) spoke in favour of two of the recommendations regarding education, information and advice. He endorsed the proposal that public legal education in schools should be improved, and the proposal for a central and easily navigable online portal for information and advice.
Lord Thomas of Cwmgiedd (Crossbencher) welcomed the report, and acknowledged that the government is acting through its investment in digital technology. He called for the government to bring forward it’s Courts Bill.
Lord Judge (Crossbencher) described the LASPO provisions as unwise and ill-considered. He welcomed the report and highlighted the impact and consequences of rising numbers of litigants in person.
Lord Ponsonby of Shulbrede (Labour) highlighted the fall in mediation and the rise of litigants in person and welcomed the recommendations of the report.
Lord Trevethin and Oaksey (Crossbench) highlighted cases from his work as a Barrister where individuals were unable to afford representation and not eligible for legal aid.
Lord Marks of Henley-on-Thames (Liberal Democrats) called for a new legally enforceable right to justice which involves a right at to reasonable legal assistance without unaffordable costs. He quoted paragraphs 66 and 68 from the Supreme Court judgement on employment tribunal fees which focuses on the rule of law and access to justice. He endorsed the points made in the debate about early assistance.
Friday 15 December
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