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Westminster update: Justice oral questions, Brexit and the Civil Liability Bill

02 May 2018

This week Law Society president Joe Egan gave evidence to the Justice Select Committee on disclosures of evidence in criminal cases. 

The Law Society submitted written evidence to the Committee, which can be found here.

We enter the week with a new Home Secretary, following the resignation of the Rt Hon Amber Rudd MP on Sunday 29 April. The Rt Hon Sajid Javid MP has been appointed as the new Home Secretary, and the Law Society will be writing to him to highlight our concerns on immigration, modern slavery and anti-money laundering.

The debate on Brexit will continue this week with days 4 and 5 of Report Stage in the House of Lords for the European Union (Withdrawal) Bill, and a number of committee sessions on Brexit due to take place focusing on post-Brexit relations, scrutiny of delegated legislation and devolution. The Law Society has also published a new paper, which outlines our views on the building blocks needed to construct a fair, transparent and accessible mechanism for the resolution of disputes between the UK and the EU following Brexit. The paper can be found on our website here.

Last week Justice Oral Questions took place in the House of Commons, with the Lord Chancellor and his ministerial team facing questions on Brexit, court reform, and on the growing crisis in the criminal justice system. The Law Society's new data on the ageing profession of criminal duty solicitors was raised in the session, and it was also discussed by the Lord Chief Justice in his evidence session to the Lords Constitution Committee. You can find out more information about our data on the looming crisis in criminal duty solicitors and write to your MP using our quick and easy tool here.

The European Union (Withdrawal) Bill had its 2nd and 3rd day of Report Stage in the House of Lords, and a number of amendments were made to the Bill in line with what the Law Society has been calling for, including on so called Henry VIII powers, sifting procedures, and on the difference between necessary and appropriate secondary legislation.

The Civil Liability Bill had its second reading in the House of Lords, and the Law Society was mentioned three times during the debate. The Bill will now proceed to Committee Stage, which will start on 10 May.

Next week the Law Society will also host an event on the future of law with Sir Geoffrey Vos, Chancellor of the High Court. Sir Vos will speak about the increasing use of smart contracts and distributed ledger technology in transactions and the implications for the legal and justice system. You can sign up to this free seminar here.

This week in Parliament

Monday 30 April

House of Commons

  • Housing, Communities and Local Government – oral questions
  • Public Administration and Constitutional Affairs Committee – oral evidence session on devolution and exiting the EU

House of Lords

  • European Union (Withdrawal) Bill; Report Stage (Day 4)
  • European Union Committee – oral evidence session on post-Brexit UK-EU relations

Tuesday 1 May

House of Commons

  • Law Society president Joe Egan will give evidence to the Justice Select Committee on disclosures of evidence in criminal cases
  • Business, Energy and Industrial Strategy – oral questions
  • Sanctions and Anti-Money Laundering Bill [Lords]; Report Stage

House of Lords

  • Oral question on Non-disclosure agreements (Baroness Kennedy of The Shaws)
  • Financial Guidance and Claims Bill [HL]; Consideration of Commons amendments
  • European Union Committee – oral evidence session on scrutiny of UK withdrawal from the EU, with the Secretary of State for Exiting the EU, Rt Hon David Davis MP

Wednesday 2 May

House of Commons

  • Opposition day debate on Windrush and the Prime Minister's policy of creating a "hostile environment"
  • Procedure Committee - oral evidence session on exiting the EU and scrutiny of delegated legislation with the Leader of the House, Rt Hon Andrea Leadsom MP and Exiting the EU Minister Steve Baker MP.

House of Lords

  • European Union (Withdrawal) Bill; Report Stage (Day 5)
  • EU Home Affairs Sub-Committee – oral evidence session on Brexit and the proposed UK-EU security treaty


  • Joint Committee on Human Rights – oral evidence session on attitudes to enforcement with the Chair of the Equality an Human Rights Commission

Thursday 3 May

House of Commons

  • Exiting the EU – oral questions

House of Lords

  • Debate on the European Union Committee report on Brexit and sanctions policy (Baroness Verma)

Last week in Parliament

Government reshuffle

Following the resignation of the Home Secretary the Rt Hon Amber Rudd MP, a small Government reshuffle took place. The new appointments are listed below.

Home Secretary – Rt Hon Sajid Javid MP

Secretary of State for Housing, Communities and Local Government – Rt Hon James Brokenshire MP

Minister for Women and Equalities – Rt Hon Penny Mourdant MP

Monday 23 April

House of Commons

Windrush statement

The then Home Secretary, the Rt Hon Amber Rudd MP gave an oral statement to the House of Commons regarding Windrush.

The full transcript of the statement and the debate that followed can be found here, and a short summary is included below.

Rudd gave evidence to the Home Secretary on Wednesday 25 April, and a transcript of that session can be found here. On Sunday 29 April, Rudd resigned as Home Secretary, stating in her resignation letter that she felt it 'necessary to do so because I inadvertently misled the Home Affairs Select Committee over targets for removal of illegal immigrants during the questions on Windrush.'

In the initial statement to Parliament, Rudd reiterated her and the Prime Minister's apologies to those affected and emphasised her commitment to resolving this situation with urgency. She announced a series of measures to help the situation:

  • She announced that the Government will waive the citizenship fee for anyone in the Windrush generation who wishes to apply for citizenship. This also applies to those who have no current documentation.
  • She announced that the Government will waive the requirement to carry out a knowledge of language and life in the UK test.
  • She announced that while the children of the Windrush generation who are in the UK are in most cases British citizens, where that is not the case and they need to apply for naturalisation, the Government will waive the fee.
  • She announced that she will ensure that those who have made their lives here but have now retired to their country of origin can come back to the UK and will waive the cost of any fees associated with the process and will work with embassies and high commissions to ensure that people can easily access this offer.

She also provided an updated on the Home Office taskforce which is dealing with Windrush. She said the taskforce has resolved 9 cases so far and made 84 appointments to issue documents.

She established a new customer contact centre for the Home Office, so that 'anyone who is struggling to navigate the many different immigration routes can speak to a person and get appropriate advice.'

She committed to checking all Home Office records going back to 2002 to verify that no one has been wrongly deported. They are halfway through this process, and so far, no such cases have been identified.

In the debate that followed her statement:

  • Dr Rupa Huq MP (Labour), noted that constituents of hers have instructed solicitors to act for them in their cases, and asked whether the Home Office will commit to reimbursing in full the legal fees incurred. Responding, theHome Secretary said that they are launching a compensation scheme, but she must first consult and appoint someone independent to ensure that it addresses the issues raised.
  • Kate Green MP (Labour) asked about legal advice and whether the Legal Aid, Sentencing and Punishment of Offenders Act 2012 would be reviewed again regarding immigration advice. Responding, the Home Secretary said that the measures that have been put in place will not require people to get legal advice.

House of Lords

European Union (Withdrawal) Bill; Report Stage (Day 2)

The House of Lords held its second Report Stage debate on the EU (Withdrawal) Bill. The full debate can be read here.

Peers agreed Clauses 5, 6 and Schedule 1 of the Bill, which relate to the preservation and conversion of EU law, and to the interpretation of retained EU law (including CJEU jurisdiction).

A summary of the key points in the debate is below:

  • Charter of Fundamental Rights: The Government lost more votes in the Lords on the Bill, the first when peers passed amendment 15 to Clause 5 of the Bill, which would ensure that the EU's Charter of Fundamental Rights is enshrined in UK domestic law with the exception of its preamble and its Chapter V (which relates to the rights of EU citizens, including freedom of movement). Amendment 15 passed 316 votes to 245. The Law Society supported this amendment in the briefing we circulated to peers before Report Stage, saying "the Government should seek to ensure that protections [under the Charter] should be maintained or strengthened for EU retained law."
  • Preservation and conversion of EU law: Peers also defeated the Government by voting in favour of amendments 18 and 19 to Schedule 1 of the Bill. Amendment 18 was tabled by Lord Beith (Liberal Democrat) and Lord Pannick (Crossbencher) and removed a section from the Bill giving ministers the power to make regulations specifying in what circumstances retained EU law can be challenged in court after Brexit. It was argued that amendment 18 was consequential to the provisions in amendment 15, which would enshrine fundamental EU rights in the UK's post-Brexit framework.
  • Amendment 19, directly consequential to the provisions in amendment 18, removed a paragraph from the Bill clarifying the terms under which the Bill would let ministers make regulations specifying in what circumstances retained EU law could be challenged in court after Brexit.
  • Status of retained EU law: The Government's amendment 26, inserted after Clause 6 of the Bill, regarding the retention of EU law into the UK domestic statute book post-Brexit, was agreed by peers without a vote. This aims to address concerns raised by peers during Committee Stage and by the Lords Constitution Committee over the clarity on the status of retained EU law. The amendment states that any law which had the effect of primary or subordinate legislation in the UK will continue to be held in domestic law after exit day. The amendment also states that retained direct EU legislation cannot be modified other than by primary legislation or by provisions for the use of secondary legislation enshrined within the Withdrawal Bill. Speaking to the amendment on behalf of the Government, Lord Callanan stated that it would ensure that EU regulations and Clause 4 rights would be treated as primary legislation for the purpose of amending and that tertiary legislation would be treated as subordinate legislation. This would ensure that, in the future, Parliament will need to agree any new delegated powers to amend a specific regulation, or regulations.

The Government also made several concessions on the EU (Withdrawal) Bill following defeats in the House of Lords on three amendments to the Bill.

Some of these concessions, if passed, would represent successes for the Law Society, based on our briefing and engagement with parliamentarians on the Bill since September last year.

In particular the Law Society has been calling for changes on:

  • Henry VIII powers: Ministers have also added their name to cross-party amendment 53 that would prevent ministers being able to use secondary legislation to amend the EU Withdrawal Act itself.
  • Sifting procedures: The Bill was amended in the Commons to create a House of Commons sifting committee that would decide what level of parliamentary scrutiny secondary legislation, resulting from the EU (Withdrawal) Bill, would be subject to. Brexit Minister Lord Callanan has tabled amendments 70A, 70B and 70C to create an equivalent sifting procedure in the House of Lords. The Lords Secondary Legislation Committee would take on this role in the House of Lords.
  • The Lords Secondary Legislation Committee has launched an inquiry into its new role, seeking views on how they should decide whether to recommend that secondary legislation under the Bill should be debated.
  • In their new report, the Lords Delegated Powers and Regulatory Reform Committee criticise the government's sifting procedure, noting that ministers would be able to ignore the recommendations of these sifting committees. 
  • "Necessary" versus "appropriate" secondary legislation: As draft the Bill allows ministers to make secondary legislation if they deem it "appropriate".
  • The Lords Delegated Powers and Regulatory Reform Committee has previously argued that this "appropriateness" test allowed for substantial policy changes that ought to be made only in primary legislation. The Committee therefore called for the "appropriateness" test to be replaced by an objective text of "necessity".
  • Responding to their concerns the Government have now tabled a number of amendments which would require minsters to demonstrate they have "good reasons" to make the regulations and ensure the regulations are a "reasonable course of action".
  • The Lords Delegated Powers and Regulatory Reform Committee have criticised these amendments saying "In our view, a "good reasons" requirement is an inadequate substitute for a test based on necessity."

The Government also issued concessions on:

  • Clause 8 – International obligation compliance: The government have together with Labour tabled amendment 47A to remove Clause 8 from the Bill which would allow ministers to make secondary legislation to ensure the UK continues to comply with its international obligations.
  • Tertiary legislation: The Bill confers powers on minsters to make law by secondary legislation. This secondary legislation can do anything that Parliament can do, with some exceptions. This includes allowing people or bodies, and ministers themselves, to make further regulations (also known as tertiary legislation). This tertiary legislation would to be subject to any parliamentary procedure.
  • Responding to concerns about the use of tertiary legislation the Government have tabled amendments 83L and 83M which would require minsters to explain the use of tertiary legislative powers in an annual report to Parliament.
  • The Lords Delegated Powers and Regulatory Reform Committee have strongly criticised these amendments, arguing that tertiary legislation should be subject to the same parliamentary control as secondary legislation and that fees or charges should not be levied through tertiary legislation.

Tuesday 24 April

House of Commons

Justice Oral Questions

Justice Oral Questions took place on Tuesday in the House of Commons.

The full transcript is available here, and a summary is included below.

Top lines

  • The Law Society was mentioned in the session, in the context of our data on the ageing criminal duty solicitor profession.
  • The Labour frontbench re-iterated their support for the restoration of early advice for family law.
  • Justice Minister Lucy Frazer QC MP spoke about the Government's desire for the mutual enforcement and recognition of judgments following the UK's exit from the European Union.


  • John Lamont MP (Conservative) asked about the UK's legal system after Brexit, and the challenge for the Government of Scotland and its position as a unique jurisdiction. Responding, the Minister Lucy Frazer QC MP noted that the Government have now agreed on an implementation period, and the focus is now on ensuring the right deal for the UK including the mutual enforcement and recognition of judgments. She said that Scotland as a distinct legal system should be respected, and that the Government will continue to work with the devolved administrations to ensure the best deal possible. 
  • Joanna Cherry QC MP (SNP)asked about the two British judges on the CJEU and raised concerns that during the transition period the UK will remain subject to judgments made by the court but will have no say over them. Responding, the Minister Lucy Frazer QC MP said that the two British judges are not representatives of the nations they are from but are appointed to sit and judge independently. She said that the UK respects those judges and the integrity of those judges.

Criminal duty solicitors

  • Christine Jardine MP (Liberal Democrat) called on the Government to take action following recent research by the Law Society showing the looming crisis in the ageing profession of criminal duty solicitors. Responding, the Minister Lucy Frazer QC MP said that the MoJ is aware of the research produced by the Law Society and said that it is important that the profession is diverse at every level. She encouraged people to join what she described as an excellent profession.


  • Shadow Lord Chancellor Richard Burgon MP asked about the Windrush situation, and the comments made by the Home Secretary, who had said that now steps have been taken there is 'no need for lawyers'. He called for those affected to have access to legal advice. Responding, the Lord Chancellor, the Rt Hon David Gauke MP said that the Home Secretary had set out a plan to make this process easier for those affected.

Bar action

  • Shadow Lord Chancellor Richard Burgon MP asked about the action being taken by the Bar, and why the Government has not scheduled parliamentary time for debate on the Statutory Instrument implementing the changes to the Advocate Graduated Fees Scheme (AGFS). Responding, the Lord Chancellor, the Rt Hon David Gauke MP said that the AGFS reforms were worked out with the Bar Council and with the Criminal Bar Association (CBA), to ensure that legal aid funds are distributed in a fair way.
  • Alex Chalk MP (Conservative) said that the MOJ are entitled to 'feel perplexed' by the CBA following their input into the AGFS reforms. He asked whether the MOJ are willing to work with the CBA to stop this issue from escalating further. Responding, the MinisterLucy Frazer QC MP said the scheme was implemented following input which took over two years.

Legal aid for victims

  • Richard Burden MP (Labour)asked about the availability of legal aid for the families of the victims of the 1974 Birmingham pub bombings and asked whether public funding could be made available directly as has been done previously for families of the victims of Hillsborough. Responding, the Minister Lucy Frazer QC MP noted that they have received a number of representations and that the Lord Chancellor has met with family members. Shesaid that she is unable to intervene in individual cases.
  • Alison McGovern MP (Labour) noted that it has been the 6-month anniversary of the publication of the Bishop James Jones Review into the experience of the families of the victims of Hillsborough and asked when action would be taken in response to the report. Responding, the Minister Lucy Frazer QC MP noted that the position in relation to inquests was being considered as part of the LASPO review.


  • Mohammad Yasin MP (Labour)asked about the Government's assessment of the effect of court closures on access to justice, focusing on the impact of court closures on his constituents in Bedford. Responding, the Minister Lucy Frazer QC MP noted that 41% of tribunals are currently used at capacity and said that it was right to consider the best use of public money. She noted that in his constituency, the closure of the tribunal court was to do with the ending of the lease rather than steps taken by HMCTS or MOJ.
  • Chair of the Justice Select Committee, Bob Neill MP (Conservative) noted that it had been a year since the Prisons and Courts Bill was lost in the dissolution of Parliament. He asked when the Government was intending to bring the legislation back. Responding, the Lord Chancellor, the Rt Hon David Gauke MP, said that there are parts which do need to come back before the house, and the Government will endeavour to do so in the coming months.
  • Kevin Hollinrake MP (Conservative) asked about a court in his constituency of Thirsk and Malton, and whether it could be used as a pilot for modernisation and technology changes. Responding, the Minister Lucy Frazer QC MP said that she will consider that proposal.
  • Shadow Lord Chancellor Richard Burgon MP noted that the MOJ is spending tens of millions of pounds on contracting agency staff in our courts. He criticised the appointment of Tim Parker to HMCTS Board. Responding, the Minister Lucy Frazer QC MP defended the appointment and said we should welcome people from business coming into public roles.
  • Philip Hollobone MP (Conservative) asked about his local court in Kettering, and the waiting times in court once cases have been listed. Responding, the Minister Lucy Frazer QC MP said that the MOJ recognises the need for cases to be heard quickly.
  • Gareth Snell MP (Labour) asked about physical access to the courts estate, in particular regarding North Staffordshire Combined Justice Centre. Responding, the Minister Lucy Frazer QC MP said that she regularly meets with HMCTS to discuss the courts estate, and that HMCTS are monitoring to ensure appropriate physical access, to identify where gaps exist and make the necessary improvements.
  • Daniel Zeichner MP (Labour) called on Ministers to visit courts listed for closure, claiming that none have done so. Responding, the Minister Lucy Frazer QC MP defended the court modernisation and court estate programmes.
  • Andrew Jones MP (Conservative) asked about the court experience for victims and witnesses. Responding, the Minister Lucy Frazer QC MP said that there are a number of steps being taken to improve their experience, citing video-link evidence as an example.

Victims Law and Domestic Violence

  • Nick Smith MP (Labour) asked about the Government's victims strategy and legislation. Responding, the Minister Philip Lee MP said that the strategy will be published by the summer, which will form a cross government approach to improve the criminal justice system for victims. The Government are considering legislative and non-legislative steps to ensure that victims are treated rightly by the justice system.
  • Robert Halfon MP (Conservative)asked about domestic violence cases and praised the work of a charity in his constituency who are highlighting the problem of delays between domestic violence being identified and getting to court. Responding, the Minister Philip Lee MP said that this is a priority for Government, and that last month the Prime Minister published a violence against women and girls' strategy. He said that police are referring 19,000 more cases for prosecution since 2010 and said that the Government know they have a responsibility to ensure that cases are heard with the minimum of delay. 

Family law

  • Tim Loughton MP (Conservative) asked about fault-based divorce, which he claimed, 'produces uncertainty, creates an industry for lawyers and a jungle for the layman.' Responding, the Minister Lucy Frazer QC MP said that it is important to reduce conflict in divorce cases and said that the Government is actively looking at this issue.
  • Shadow Justice Minister Yasmin Qureshi MP asked about MOJ figures which show that since the removal of legal aid in the family courts, two thirds of litigants represent themselves. Echoing our campaign, she called on the Government commit to restore early legal advice as the Labour Party have committed to do. Responding, the Minister Lucy Frazer QC MP noted the importance of family justice and said that this issue will be considered as part of the LASPO review. She also noted the success of the online pilot for divorce cases.
  • Chris Law MP (SNP) raised concerns of any failure to agree on arrangements for international family law following Brexit, and whether any contingency planning is taking place. Responding, the Minister Lucy Frazer QC MP said that the Government is seeking similar arrangements to what we have for cross border working on family cases.


  • Peter Aldous MP (Conservative)asked about a growing problem in finding Justices of the Peace to chair family panels in his region of Suffolk. He called for the Government to extend the retirement age for magistrates. Responding, the Minister Lucy Frazer QC MP said that Magistrates play an important role in our legal justice system and that the Secretary of State is considering this issue.

The Lord Chancellor and Ministry of Justice Ministers also answered questions on prisons, reoffending rates, probation services and sentencing.

House of Lords

Civil Liability Bill [HL]; Second Reading

The Second Reading of the Civil Liability Bill in the House of Lords took place on Tuesday. The Law Society briefed ahead of the debate and were mentioned three times during the debate.

The Bill was read a second time and will now proceed to a Committee of the Whole House of Lords. The first day of this Committee Stage has been scheduled for 10 May.

The full transcript can be found here, and a short summary is included below.

Top Lines

  • Concerns regarding the Bill were raised during the debate, echoing the Law Society's position on the need to properly define a whiplash injury, the need to ensure the exclusion of vulnerable road users from the measures in the Bill, and wider concerns regarding a tariff for whiplash injuries caused by a road traffic accident.  
  • Peers also raised concerns that the savings for insurers would not be passed on to consumers.
  • Although not included in the Bill, many Peers also took the opportunity to raise concerns with the proposal to increase the small claims limit.

The Government's contributions

  • The Minister, Lord Keen of Elie introduced the Bill for its Second Reading and detailed the measures of the Bill.
  • On whiplash, he said whiplash claims are up since 2005-06. He said the Government would never seek to deny justice to those who suffer injury and that it is right that individuals are compensated for genuine injuries, although he believes that the number of whiplash claims is too high and that this has a cost for motorists and consumers. He said some of these claims are not genuine, and that the insurance industry identified 69,000 claims that it considered fraudulent last year. He claimed this has driven up insurance premiums. He said that the level of compensation paid out for whiplash claims is, in the Government's view, out of all proportion to any genuine injury suffered.
  • He said that the ban on pre-medical settlements will discourage fraudulent claims and encourage insurers to investigate claims properly.
  • He said that the measures in the Bill will allow insurers to pass on savings of £1.1 billion a year to consumers, which equates to a reduction on average of around £35 a year for consumers car insurance premiums. He said the Government intends to hold the market to account to make sure these savings are passed on.
  • On the measures on the personal injury discount rate, Lord Keen said that fairness and sustainability are at the heart of the reforms. The government supports the aim to ensure that injured people receive 100% compensation to meet expected future financial losses including medical and care costs. He said that at minus 0.75%, the UK has one of the lowest rates in the world – it is 4% in Germany, 1.2% in France and 1% in Ireland. He claimed that "Awards currently average 120% to 125% even after management costs and tax. This is putting huge pressure on the National Health Service in claims for clinical negligence. Last year, the NHS spent £1.7 billion on such cases, a cost that has almost doubled since 2010-11, with an unsustainable average increase of 11.5% every year." He said that every pound spent on overcompensation could instead be spent on front-line public services.
  • Beyond the Bill, Lord Keen also noted that the Government's wider work to reform the civil justice system through the Financial Guidance and Claims Bill, on the regulatory regime for claims management companies and to ban cold calling.
  • Following the debate, Lord Keen thanked all of the contributions made in the debate and defended the identified trends in whiplash injuries. He said there is an obvious correlation between the availability of compensation and the incidence of whiplash claims reported in road traffic cases.
  • He noted concerns raised regarding the definition of whiplash in the Bill and said that the intention was to have a degree of flexibility. He said that cyclists are specifically excluded under Clause 1. He said that the Government is intending to carry out the first review of the discount rate as soon as possible, and that they are aiming for April 2019.

The Opposition's response

  • Responding on behalf of the opposition, Lord Beecham raised concern regarding whether the insurance industry will pass on the savings to consumers. He noted that road traffic accident claims have fallen by 14% since 2013 and by 10% in the past year. He noted the latest figures published by the Compensation Recovery Unit which showed a significant fall in the number of motor cases.
  • Lord Beecham raised concerns regarding the activities of management companies and McKenzie Friends, which he said little action has been taken by both the Government, and in relation to connections between solicitors' firms and such companies, by the Law Society.
  • He raised concerns that the tariff system focuses on the timescale and not the severity of the pain and suffering caused by the injury. He also raised concerns that comparable injuries will not receive the same compensation where one injury is received in a RTA and the other is not. He used an example of an injury he sustained on a Tube train recently.
  • He raised concerns regarding the definition of whiplash in the Bill and shared the concerns of the recent report of the Delegated Powers Committee regarding the extensive use of secondary legislation in the Bill and the concerns around the importance of the expertise in the judiciary and medical experts in the current situations.
  • He called on the Government to look again at the proposals for reforming the small claims limit, and to review further the impact of cuts to legal aid.
  • Later, responding to the debate, Baroness Chakrabarti welcomed the debate and the submissions received from different organisations on the Bill. She welcomed compulsory medical reports before settlement but said that the Bill does not directly deal with fraud. She called for there to be measures in the Bill to give 'teeth' to the promise that insurance premiums will be reduced. She raised further concerns with the definition of whiplash, and the inequality of arms, in particular the effect of combining measures in this Bill with the increase in the small claims limit.

Other Contributions

  • Lord Sharkey (Liberal Democrat) referred to the report of the Delegated Powers Committee and its assertion that the proposals amount to "an inappropriate delegation of power". He criticised the lack of a full definition for whiplash and said that the Government should either produce the definition for the Bill or delay the Bill until the definition is available. He questioned whether the Lord Chancellor should set the tariff rate and asked whether it would be more appropriate for the Judicial College to do so.
  • He raised concerns with access to justice, as noted by the Law Society in its comments on the Bill. He said that the 'Access to Justice Foundation has estimated that the proposed new tariff would deny 600,000 people injured on our roads each year the right to legal advice when seeking compensation'.
  • He raised concerns that vulnerable road users, such as cyclists, motorcyclists, horse-riders and pedestrians are not mentioned in the Bill or any other information surrounding the Bill.
  • He said that the three-year review period for the personal injury discount rate could be too short and could create uncertainty.
  • Lord Hope of Craighead (Crossbencher) welcomed measures to provide uplift in exceptional circumstances. He gave a background of some of the history regarding the personal injury discount rate and said that these reforms seek to alter the balance in favour of the public.
  • Lord Hunt of Wirral (Conservative) said that the reforms in the Bill are 'in no sense controversial' and noted 'representations we are receiving, and we shall inevitably hear a great deal of noise from all those vested interests on both sides.' He described the reforms to the personal injury discount rate as urgently needed.
  • Lord McNally (Liberal Democrat) criticised the growing advertisements encouraging people to make claims, which he said has 'cheapened our concept of justice'. He said that 'access to justice is not limitless and should not lead to clogging up the courts or to cases that increase costs throughout the system.'
  • Lord Hodgson of Astley Abbotts (Conservative) said that the Bill has it its hear the 'objective of achieving the greatest possible fairness.' He called for the greater use of Periodical Payment Orders (PPO) rather than lump-sums for compensation of whiplash injuries.
  • The Earl of Kinnoull (Crossbencher) raised concerns regarding whether the insurance industry will be able to pass on the savings to the consumer.
  • Lord Monks (Labour) raised concerns on behalf of victims and also with the abuse of the system and spoke about the impact of raising the small claims limit.
  • Baroness Berridge (Conservative) focused on whiplash claims and said that the aims of the Bill – to reduce insurance premiums and to reduce fraudulent claims are laudable. However, she had reservations regarding the separation in the personal injury system of compensation of one form of claim to another. She raised concerns regarding the definition of whiplash and the clarity of the Bill's extent. She raised concerns with the Government potentially overlooking the existing judicial college guidelines.
  • Lord Faulks (Conservative) raised concerns with fraud in whiplash claims and welcomed the ban on pre-medical settlements. He quoted the Law Society which criticised the proposals to restrict the level of damages, but he believes the Bill is aimed in the right direction and is necessary. He raised concerns regarding the cost of clinical negligence to the NHS. He said that the discount rate should be reviewed every five years rather than three. He called for the greater use of PPOs.
  • Lord Hayward (Conservative) criticised the over-willingness of the insurance industry to settle. She said she believes the Bill protects consumers. She called for further legislation to address other areas in the civil justice arena.
  • Lord Cromwell (Crossbencher) said that it is important that we do not view all claims as fraudulent. He raised concerns around the membership of the Lord Chancellors advisory panel on setting the personal injury discount rate.
  • Lord Ribeiro (Conservative) spoke about the impact of clinical negligence claims on the NHS. He said that the drastic change in the discount rate had the practical effect of inflating awards to patients and litigants.
  • Lord Marks of Henley-on-Thames (Liberal Democrat) said that there can be doubt that the ban on solicitors paying referral fees has helped to restrict the trend of fraudulent whiplash claims. He said it is important to ensure that in stamping out fraudulent claims we do not prevent genuine claims. He called on the Government to provide a definition for whiplash. He said the tariff should be established by the Judicial College. He raised concerns that the savings for insurers would not be passed on to consumers. He called for the Government to encourage greater use of PPOs.

Wednesday 25 April

House of Lords

European Union (Withdrawal) Bill; Report Stage (Day 3)

The House of Lords held its third Report Stage debate on the EU (Withdrawal) Bill. The full debate can be read here and here.

Peers considered Clauses 7 and 8 in the Bill relating to delegated powers and Parliamentary scrutiny of the Bill – specifically on dealing with deficiencies arising from withdrawal and complying with international obligations.

The Government lost another vote in this session when peers voted in favour of amendment 31, to limit ministers powers to make secondary legislation under the Bill.

  • Necessary v appropriate use of secondary legislation: Peers voted 349 to 221 in favour of amendment 31 which places restrictions on minsters ability to make secondary legislation. This includes secondary legation that amends primary legislation, so called "Henry VIII" powers. As originally draft the Bill would allow ministers to make secondary legislation if they deem it "appropriate". Amendment 31 would mean ministers would instead only be able to introduce secondary legislation if it is "necessary".Moving the motion, crossbench peer Lord Lisvane described the powers which Ministers would be given under the Bill as it stands would be "heavyweight", because "regulations can do anything that an Act of Parliament can do—including, of course, the wholesale amendment or repeal of statutes that have passed through the far more exacting process of primary legislation". Responding to these critiques, Exiting the European Union Minister Lord Callanan contended that the amendment did not, in fact, change the test "from a subjective test to an objective one". It would also be difficult to assess which legislative changes were "necessary" and which were not, he added.
  • Clause 8 – International obligation compliance: Amendment 47a was brought forward by the Conservative and Labour parties together and agreed to without division. It makes provisions for leaving out Clause 8 - regarding "complying with international obligations" - in its entirety.
  • Other amendments: The Government also brought forward the following amendments, which were all agreed to by peers:
  • 32a, 32b and 34a: Which remove the ability to create public authorities from powers in Clause 7 and 9.
  • 34b, 34c and 34d: Which removes the ability to substantially alter the Acts that give effect to the devolution settlements from the power in Clause 7(1).

Crossbencher Lord Lisvane's amendment 42 was also agreed to by peers. Lord Callanan said this amendment would remove from the main powers in the Bill the discretion of ministerial judgement on appropriateness, and permit action only where it "is necessary."

Government table amendments on devolution

Separately, the Government has tabled amendments to the Withdrawal Bill related to its devolution provisions. The amendments follow the news that the UK and Welsh governments had reached an agreement on the Bill, following a long running dispute over how powers should be devolved to Wales after Brexit.

Under Clause 11 of the European Union (Withdrawal) Bill powers over a number of devolved policy areas would initially be transferred to the UK Government after Brexit.

In parallel to this agreement, a supporting intergovernmental agreement has been published that sets out a number of additional commitments on how the amendments, if agreed, will work in practice:

  • Devolution of powers - The amendments will see decision-making powers returning from Brussels transfer to the devolved legislatures.
  • Common frameworks - For a small number of areas, set out in the intergovernmental agreement, common legislative frameworks may be needed in whole or in part across the UK after the UK has left the EU. Whilst these are being designed and implemented the existing common arrangements will be mentioned through regulations.
  • The amendments also provide for legal certainty where agreement cannot be reached.
  • Powers time limited - These existing frameworks will be time limited. The regulations maintaining specific frameworks will expire five years after they come into force, if not revoked earlier, and the power to create those regulations will expire two years after exit day at the latest.
  • Devolved consent - The UK government will have a legal duty to share any such regulations in draft so that the approval of the devolved legislatures can be sought before proceeding to the UK Parliament.
  • Reporting to Parliament - The UK Government will also be under a legal duty to report to the UK Parliament periodically on the progress made towards establishing new frameworks and therefore removing any temporary arrangements.

Constitution Committee oral evidence session on the Lord Chief Justice

The House of Lords Constitution Committee took evidence from the Lord Chief Justice, the Rt Hon Lord Burnett of Maldon.

The Law Society's heat map showing an ageing profession in criminal duty solicitors was raised during the session.

The Lords Constitution Committee examines all public bills for constitutional implications and investigates broad constitutional issues. It undertakes investigative inquiries into wider constitutional issues and publishes a report with recommendations aimed principally at the Government.

The Committee also takes evidence annually from the Lord Chief Justice of England and Wales, and from the Lord Chancellor. The Lord Chancellor will give evidence to the committee on 9 May 2018.

The session can be viewed here, and a short summary is below.

  • When asked about the Law Society's heat map which shows a growing crisis in the ageing profession of criminal duty solicitors, he agreed that there was a danger of becoming a crisis in the justice system. He said that he had not appreciated until he "read the Law Society report recently quite how desperate the position appears to be in many parts of the country. If that gets worse, if one simply can't get duty solicitors to turn out to police stations, then that's a problem that has got to be resolved." He said that there are rule of law implications if there are insufficient criminal solicitors and barristers.
  • The Lord Chief Justice spoke about the importance of the relationship between Parliament and its committees and the judiciary.
  • He spoke about his priorities, which are to improve judicial morale, to increase public understanding of what judges do, and to continue to implement the modernisation of our courts and tribunals.
  • He raised concerns against the abuse of judges on social media and called for greater protection of them.
  • He raised concerns with problems around judicial recruitment and retention, citing increasingly heavy workloads and worsening working conditions.
  • He declined to comment on the criminal bar action but did say that young solicitors and barristers were put off from working in criminal law because of the poor financial rewards.

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