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Law Society gives evidence on Brexit and MPs discuss access to justice

17 January 2017

Alexandra Cardenas discusses Brexit, briefing parliamentarians and the Law Society's work on small claims.

This Tuesday, the prime minister will give her first keynote speech on Brexit since the party conference in October 2016. In addition, there will be justice oral questions and a number of sessions on Brexit. We will brief parliamentarians ahead of the House of Lords short debate on courts and tribunals fees and litigants in person on Monday and the House of Commons debate on security and criminal justice after Brexit on Wednesday.

The House of Commons and House of Lords came back from recess on Monday 9 January.

Last week, David Greene, Chair of the Legal Affairs and Policy Board (LAPB) and Helen Raulus, Law Society EU Policy Adviser, gave evidence to the Lords EU Justice Sub-Committee on civil justice co-operation and the Court of Justice of the European Union (CJEU). The session focused on the impact of Brussels I and Brussels IIA, with an emphasis on their impact on individual citizens.

The Law Society briefed parliamentarians on the access to justice debate that took place on Wednesday. The Law Society was mentioned eight times by MPs in relation to its works on small claims, employment tribunal fees and legal aid deserts.

The Justice Select Committee undertook its oral evidence sessions for the inquiry into the impact of Brexit on the justice system with a focus on the criminal justice system.

This week in parliament

Monday 9 January

Nothing to report

Tuesday 10 January

Parliament - House of Commons

Justice Select Committee evidence session on the implications of Brexit for the justice system

The Justice Select Committee undertook its third evidence session on the implications of Brexit for the justice system. The witnesses were:

  • Francis Fitzgibbon QC, Chair of the Criminal Bar Association
  • Tim Wilson, Professor of Criminal Justice Policy at Northumbria University
  • Michael Gray, Founding Partner of Gray and Co Solicitors, on behalf of the Criminal Law Solicitors’ Association.

The Law Society was mentioned in the session as Michael Gray said that the Criminal Law Solicitors' Association had not been approached by government to discuss the issues, but that the Law Society may have been.

All the witnesses gave support for continued UK-EU co-operation in criminal justice and security. This included the European Arrest Warrant, Schengen Information System II, Europol and Eurojust. The key points of the session were:

European Arrest Warrant (EAW)

  • All the witnesses agreed on balance that the EAW was a positive measure for the UK. Michael Gray noted that the CPS had said that the UK had undertaken about 1,000 extraditions a year. Before the EAW, extraditions could take months or years.
  • On downsides to the measure, FitzGibbon said that the 2014 amendments had mitigated the risks, mainly that human rights would be infringed.
  • Labour MP Keith Vaz noted concerns about the imbalance between the low number of the requests the UK made compared to those the UK had to process. FitzGibbon noted that Poland, a country that often sent many, now applied better filters when using the EAW.
  • Keith Vaz also noted that if the UK did not negotiate a deal, it would have to agree to 27 separate agreements. Gray noted that the Iceland and Norway deal on EAW was signed ten years ago but was still not in force.
  • FitzGibbon said that he hoped that the mutual arrangements in law and order and justice could be detached from the bargaining chip negotiations on economic and other matters.
  • Labour MP David Hanson asked about the views of the EU 27 on the EAW. Professor Wilson noted there was a 'tremendous amount of mutual interest' and that British justice and policing were highly regarded in Europe.
  • FitzGibbon also said that there would need to be some sort of transitional arrangement for overhanging cases still in the system once the UK leaves the EU. Professor Wilson raised the possibility of a different transitional phase in criminal justice compared to, say, the financial services industry.

Reverting to the 1957 extradition convention

  • FitzGibbon noted that the 1957 extradition convention was cumbersome, slow and did not cover certain offences such as fraud. He pointed out that the UK may have to renegotiate that treaty with the European Union member states and that it was unlikely to have the relatively simple processes that the EAW does.

Impact of leaving the European Court of Human Rights (ECHR)

  • Conservative MP Victoria Prentis asked whether leaving the ECHR would have an impact on the ability to continue to use the EAW. FitzGibbon stated that this would be problematic unless provisions to apply the proportionality tests and tests that were capable of barring extradition that we currently had were made.

Impact on criminal law

  • Professor Wilson noted that the range of measures on criminal justice did not actually engage with the substantive criminal law and had an impact on a very small proportion of criminal law. Francis stated that it was the 'hidden wiring' behind the system that was likely to be affected.

Read the full evidence session on the implications of Brexit for the justice system .

Law Society evidence mentioned in EU Committee to Brexit Minister

On Tuesday the Minister for Exiting the EU, David Jones MP, and Minister for the Foreign Office, Sir Alan Duncan MP, gave evidence to the EU Committee. Chair of the Lords EU Justice Sub-Committee, Baroness Kennedy, referenced the Law Society’s evidence to her committee earlier that day (see below). She stated the concern about the loss of strong systems for enforcing judgments in courts for ordinary people, such as those who have an accident abroad or an SME that is not paid by a trading partner.

Minister of State David Jones MP noted that the department was aware of these issues and that he had discussed them regularly with the Ministry of Justice. He noted that they 'certainly intend them to figure in the negotiations with the continuing European Union.'

Parliament - House of Lords

Law Society gives evidence to the EU Lords Justice Sub-Committee

Chair of LAPB, David Greene, and Law Society EU Policy Adviser, Helena Raulus, gave evidence to the EU Lords Justice Sub-Committee on civil justice co-operation and the Court of Justice of the European Union (CJEU). They gave evidence alongside Hugh Mercer QC and Tim Scott QC who were representing the Bar Council. The session focused on the impact of Brussels I and Brussels IIA, with an emphasis on their impact on individual citizens. The key points were as follows:

Benefits of Brussels I

  • David, Helena and Hugh all noted the benefits of Brussels I for consumers who buy products from the EU. Helena also outlined the benefits that Brussels I could have for small and medium sized enterprises in enforcing their rights.
  • Hugh noted that Rome I and Brussels I were important to make sure that the 'little guy' could continue to enforce his rights. David pointed out that there was significant trade between UK consumers and the EU so they need a way to have rights enforced.
  • David specifically highlighted that lawyers were trying to put forward what they thought was best for the individual and for a certain legal framework. Hugh added that this was not actually in the interest of lawyers as it made processes very simple and easy for clients, making lawyers less money.
  • Lord Oates asked about the alternatives to Brussels I. David noted that Lugano was an alternative, although not as effective as Brussels I. Helena reiterated this point and noted that if we were to fall back on Lugano we would want to push for the update of the convention to be in line with the recast regulation. David noted that the UK was unlikely to look to copy the Norwegian or Danish model of civil co-operation.

Wider civil justice mechanisms

  • David emphasised that it was also important that there were other EU mechanisms, beneficial to consumers, that worked with Brussels I. He noted specifically the benefits of the Motor Accident Directive and Package Holiday Directive.

Brussels IIA

  • Baroness Shackleton asked about the impact of falling back on common law in family law. Tim argued that it could be difficult for judges within the family court to retrain to go back to the common law, which would be on top of the current pressure on the family courts in relation to cuts to legal aid. Tim said it provides a mutually beneficial framework for 3 million EU citizens in resident in the UK.

Competitor jurisdictions

  • Lord Cromwell asked what jurisdictions would be looking to take the UK’s legal work. Helena noted that the German and Dutch legal systems were looking to compete with the UK even before the referendum, including the Netherlands setting up a commercial court in English.
  • Lord Cromwell questioned whether this was simply healthy competition between jurisdictions. Hugh noted that there had already been healthy competition but usually the UK won. Hugh highlighted that the UK was unique in having an agreement with the Commonwealth and the EU on enforcement which had been to the UK’s advantage.

Court of Justice of the European Union (CJEU)

  • On the CJEU, Hugh said there were options from the Lugano Convention as Lugano states do not have access to the CJEU. He noted that Lugano state courts took account of the CJEU and the CJEU took account of their judgments. David mentioned that it was inevitable that the UK would take due account of decisions in EU member states and the CJEU as we would be interpreting the same laws.

Transitional arrangements

  • David noted that there was likely to be a need for transitional arrangements for civil justice co-operation – this should include both a sunrise and sunset clause.

The transcript of the debate is not available yet.

Wednesday 11 January

Parliament - House of Commons

Westminster Hall debate on access to justice

The Westminster Hall debate on access to justice covered personal inquiry law reform, employment tribunal fees and legal aid. We briefed MPs ahead of the debate.

As a result, the Law Society was mentioned eight times in relation to small claims, employment tribunal fees and legal aid deserts by:

  • Rob Marris MP (Lab), who sponsored the debate
  • Shadow Lord Chancellor Richard Burgon MP, who praised the Law Society for the launch of the legal aid deserts campaign
  • Yvonne Fovargue MP (Lab), who asked the government to review the sustainability of the legal aid system, which is one of our key campaign asks.

Sir Oliver Heald QC MP, Courts and Justice Minister, represented the government.

The main points were as follows:

Personal injury reform

  • Opening the debate, Rob Marris argued that in most cases there was 'an asymmetry' between the claimant and the defendant who may be covered by a compulsory insurance.
  • Marris also mentioned that the consultation period was too short, that the methodology was biased towards insurance companies, and that it did not take into account the loss to solicitors.
  • Chris Philp MP (Con) argued that some of the UK’s largest insurance companies had committed to pass on savings to consumers.
  • In response, Marris pointed out that in the past five years other changes had led to an increase in insurance company savings of £8 billion in claims costs, which had not been passed on to consumers.
  • Courts and Justice Minister Sir Oliver Heald noted that the number of road claims had gone up from 460,000 in 2005-06 to 770,000 in 2015-16, and that 90 per cent of them were for whiplash at a time when roads and cars were getting safer.
  • Marris mentioned some examples provided by the Law Society about minor injuries covered by the reform, pointing out that the proposals in the consultation did not cover just whiplash but all personal injuries, including accidents at work: 'That is one reason why the Law Society has come out against the proposals'.
  • Yvonne Fovargue MP (Lab) also spoke in support of our position. In particular, she said she was concerned that workplace injuries were included in the proposals, and asked what evidence the government had of fraudulent claims against employers.
  • Richard Burgon said that the proposals would affect people in low-paid jobs adversely.
  • Speaking in support of the government's proposal, Chris Philp repeated several times that he was keen to tackle fraudulent whiplash claims, not all personal injury claims.
  • In relation to the insurers' commitment to pass on savings to consumers, he said he would expect the Competition and Markets Authority (CMA) to be encouraged, or even required, by the government to conduct an investigation to make sure that those savings were passed on.
  • Oliver Heald argued that the UK was facing whiplash cases 'on an industrial scale' and that the £1,000 limit was set in 1991.
  • He also pointed out that people could still employ a lawyer to help them with a case that is in front of the small claims court, and they could try to reach an agreement with their lawyer about how the case is funded: 'The point is that they cannot recover costs, but there is no ban on taking legal advice, though clearly people would need to look at the economics of that. The other point to make is that if someone has a complex case that should perhaps be dealt with by the county court in its full setting, that is possible'.

Employment tribunal (ET) fees

  • Rob Marris argued that ET fees had dissuaded huge numbers of people from bringing employment claims.
  • He mentioned that the Law Society had pointed out that the remission system for those who cannot afford to pay fees was confusing and hard to navigate.
  • Justin Madders MP (Lab) asked the Minister when the ET review would be published.
  • Oliver Heald confirmed that the government was reviewing the impact of the introduction of fees in employment tribunals and that the report would be published 'soon'.

Legal aid deserts

  • Rob Marris mentioned legal aid deserts, using the Law Society briefing by saying that figures from the Legal Aid Agency showed that large areas of England and Wales had little or no provision for legal aid services for housing.
  • Yvonne Fovargue highlighted that many small providers, including in her constituency, were giving up their contracts as business was becoming unviable.
  • In line with the Law Society position, she called for the government to commission an independent review into the system’s sustainability.
  • Richard Burgon also mentioned that the Law Society launched its campaign to end legal aid deserts.

Read the transcript of the House of Commons debate on access to justice.

Westminster Hall debate on the Crown Prosectution Service

Labour MP Karl Tuner sponsored a Westminster Hall debate on funding the Crown Prosecution Service. He mentioned the Law Society health and well-being 2013 survey that found that 95 per cent of the 2,226 solicitors surveyed reported stress at work.

Read the transcript of the House of Commons debate on the funding of the Crown Prosecution Service.

Thursday 12 January

Nothing to report.

Friday 13 January

Nothing to report.

Monday 16 January

Parliament - House of Commons

  • Second Reading Committee - Intellectual Property (Unjustified Threats) Bill - Greg Clark MP

Parliament - House of Lords

  • Debate on the impact on litigants in person of the introduction of administration charges and other costs when bringing claims in courts and tribunals - Baroness Gardner of Parkes

Tuesday 17 January

Parliament - House of Commons

  • International Trade Select Committee - oral evidence session on UK trade options beyond 2019 - Witnesses include:
    • Mike Hawes, Chief Executive, Society of Motor Manufacturers and Traders
    • Dr Adam Marshall, Director General, British Chambers of Commerce
    • Peter Hardwick, Head of Exports, Agriculture and Horticulture Development Board
    • Defence Select Committee - oral evidence session on the Armed Forces Covenant Annual Report 2016 The witness is:
      • Mark Lancaster TD VR MP, Parliamentary Under-Secretary of State

    Parliament - House of Lords

    • Oral questions on the performance of the UK economy since 23 June and how this compares to forecasts by the Treasury during the referendum campaign - Lord Forsyth of Drumlean
    • EU Justice Sub-Committee - oral evidence session on Brexit: civil justice cooperation
      • The Rt Hon Sir Richard Aikens QC, Brick Court Chambers
      • The Rt Hon Sir Mathew Thorpe QC, 1 Hare Court

    Wednesday 18 January

    Parliament - House of Commons

    • Debate on Exiting the EU and security, law enforcement and criminal justice
    • Westminster Hall debate on the process for the UK to leave the EU - Gordon Henderson
    • Women and Equalities Select Committee - oral evidence session on the work of the Equality and Human Rights Commission. Witnesses include:
      • David Isaac, Chair, Equality and Human Rights Commission
      • Rebecca Hilsenrath, Chief Executive, Equality and Human Rights Commission
    • Work and Pensions Select Committee - Oral Evidence Session on Brexit and labour market policy. Witnesses include:
      • Beverly Dixon, Group HR Director, G’s Group
      • Susanna Rendall, Managing Director, The Boxford Group
      • Nicolas Roach, Managing Director, Harbour Hotels
      • Matthew Sumner, Managing Director, Midas Care
      • Heather Rolfe, Associate Research Director, National Institute of Economic and Social Research
      • John Guthrie, Employment Policy Adviser, British Hospitality Association
      • Andrew Clark, Director of Policy, National Farmers’ Union
    • Women and Equalities - oral evidence session on work of the Government Equalities office
      • Rt Hon Justine Greening MP, Minister for Women and Equalities

    Parliament - House of Lords

    • Oral question on stopping aggressive tax avoidance - Lord Harries of Pentregarth
    • Wales Bill - 3rd reading - Lord Bourne of Aberystwyth
    • EU Home Affairs Sub-Committee - oral evidence session on Brexit: UK-EU movement of people. Witnesses include:
      • Mr Zsolt Darvas, Senior Fellow, Bruegel
      • Ms Camino Mortera-Martinez, Research Fellow and Brussels Representative, Centre for European Reform
      • Mr Stephen Booth, Acting Director and Director of Policy and Research, Open Europe
      • Professor Alan Manning, Chair, Migration Advisory Committee

    Thursday 19 January

    Parliament - House of Lords

    • EU Internal Market Sub-Committee - oral evidence session on Brexit: future trade between the UK and the EU in services. Witnesses include:
      • Rt Hon Matt Hancock MP, Minister of State for Digital and Culture, Department for Culture, Media and Sport
      • Lord Tariq Mahmood Ahmad of Wimbledon, Parliamentary Under-Secretary of State for Transport, Department for Transport
      • Dr Jesse Norman MP, Parliamentary Under-Secretary of State, Minister for Industry and Energy, Department for Business, Energy and Industrial Strategy

    Friday 20 January

    Nothing to report

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