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Westminster weekly update: Lord chancellor quizzed by Justice Committee on LASPO

08 April 2019

Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.

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1. Lord chancellor quizzed by Justice Committee on LASPO

Last Wednesday lord chancellor the Rt Hon David Gauke MP gave evidence to the Justice Select Committee regarding the Legal Aid, Sentencing and Punishment of Offenders (LASPO) review.

The lord chancellor described the LASPO review as a comprehensive and honest process. He noted that moving forward there will be pilots on early intervention and new technology, and a further review specifically on the legal aid means test. The lord chancellor said he is sympathetic to the case for early intervention but said that the Ministry of Justice needs to build the evidence. He said social welfare law is an area where early legal advice might be very beneficial.

The lord chancellor noted that the review of the legal aid means test is underway and will report in 2020. When questioned about the date for the review's conclusion, he argued it was important to get all the relevant evidence. He said that this date is realistic.

The lord chancellor said that the Legal Aid Agency continuously considers the availability of legal aid providers, and duty solicitor coverage. He noted that the review of criminal legal aid will be 'carefully considering the sustainability of recruitment, retention and career progression in the criminal defence market, and the diversity of the workforce.' The review will be evidence based and sustainable and will look to report by the end of 2020. Similar to the means test and early advice, the Ministry of Justice will be pushing the Treasury to ensure that it can fulfil any commitments from the reviews.

2. Lord chief justice gives evidence to Constitution Committee

Last Wednesday the House of Lords Constitution Committee took evidence from the lord chief justice, Lord Burnett of Maldon, on topics including judicial recruitment and diversity; artificial intelligence in the justice system; the court modernisation programme; and Brexit.

He stated that the judiciary continues to face recruitment shortfalls. This, he claimed, posed a risk to the international reputation of the High Court as the court of choice for international dispute resolution. He noted that diversity in the judiciary remained a problem, but suggested that much of this stemmed from the lack of diversity in the upper levels of the legal profession from which the judiciary recruits. He also highlighted the fact that progress has been made over the last few years, with women now making up 25% of judges in the High Court, the Court of Appeal and the Supreme Court.

The lord chief justice spoke about the new advisory group on AI that he has convened to explore how the courts can take advantage of developing AI technologies. He stated that the group would identify areas of inquiry and would produce its first reports before the end of the year.

The ongoing court modernisation programme was discussed, which the lord chief justice described as vital and overdue. He claimed that making procedures easier would improve access to justice - although he noted that traditional paper-based systems should remain an option for those who are uncomfortable with digital technology.

Finally, in response to a question about the impact Brexit would have on the judicial system, the lord chief justice said that legal uncertainty generates disputes, which leads to increased work for the judicial system. He explained that plans are being made to put in place more support staff and deputy judges to deal with this increased workload, while volunteers are on standby to deal with urgent cases that may arise. He noted the administrative court and the property courts were particularly likely to face additional workloads.

3. Solicitor general gives evidence to the Justice Committee

Last Tuesday solicitor general Robert Buckland QC MP gave evidence to the Justice Select Committee on his work.

During the session, the solicitor general welcomed the Committee's report on disclosure of evidence in criminal cases. He mentioned the Attorney General Office's report published in November 2018, and that the Crown Prosecution Service is already working on the national disclosure improvement plan.

He spoke about the work of the Public Legal Education Panel and his belief in the need to inform and empower citizens with regard to the law and the rule of law. He acknowledged the work in schools that is taking place and share his interest in scaling up that work. He emphasised that he does not see pro bono and public legal education as a replacement for legal aid.

The solicitor general spoke about the European Arrest Warrant and Eurojust and the need to have arrangements post-Brexit. He noted that in the case of a no deal Brexit, there would be a shadowing operation in place, allowing them to remain in close communication with colleagues across Europe. He noted that there could be enormous pressures on the judicial and legal systems in the event of a no deal Brexit.

4. PM seeks further Article 50 extension

Last Friday the prime minister Theresa May announced she had written to European Council president Donald Tusk requesting the Article 50 deadline be extended from 12 April to 30 June. Such an extension would require the UK to take part in the EU parliamentary elections on 23 May, and the prime minister acknowledged and accepted this in her letter.

The prime minister made it clear, however, that if a withdrawal agreement could be ratified by the UK Parliament before that date then she would seek to leave before the new deadline, which could mean election participation would be unnecessary. The Council is expected to respond to May's request, and/or give their counter-proposal (Tusk has recently floated a year-long flexible extension), at the summit on 10 April.

Cross-party negotiations between government and opposition leadership have been ongoing this week, as both parties seek to find a Brexit compromise that could command a majority in the House of Commons. However, she said that if one cannot be established by co-operating with the opposition, MPs would be asked to vote on a series of options and the government 'stands ready to abide by' the result.

Last Monday MPs took part in a series of indicative votes on four Brexit options selected by commons speaker John Bercow MP. None of these options could command a majority, although some votes were extremely close - seeking a customs union was defeated by three votes, a confirmatory referendum by 12, and a common market 2.0 model by 21. All votes featured abstentions, with the parliamentarians opposed to Brexit unwilling to support soft-leave options, and the Cabinet being ordered not to take part.

5. Non Disclosure Agreements examined

Last Wednesday the Women and Equalities Committee took evidence as part of their ongoing inquiry into the use of non-disclosure agreements (NDAs) in discrimination cases. Amongst those giving evidence were justice minister Lucy Frazer MP; small business, consumers and corporate responsibility minister Kelly Tolhurst MP; and Paul Phillip, the chief executive of the Solicitors Regulation Authority (SRA).

Phillip made it clear the SRA are examining whether solicitors have contravened their responsibilities as officers of the court through drafting certain NDAs, but acknowledged it is unclear as of yet how effective the SRA's warning notice and guidance on litigation has been in mitigating the issue. He said guidance would be updated when consultations were complete, and that the investigation into Allen & Overy over the Zelda Perkins case had been referred to tribunal last week, and therefore findings would be published in due course. The Committee expressed surprise that the case had taken two years to reach referral stage.

Frazer was questioned on employment tribunals, and noted that since fees have been removed, use of tribunals has increased. She reiterated that legal aid is available for Equality Act claims for discrimination, harassment and victimisation, and that the government recognises the importance of examining means test thresholds and has committed to doing so in the legal aid review. When asked whether there are plans to review tribunal system as a whole due to suggestion sit is failing users, she argued this has been addressed by the wider court reform programme.

Questions put to Tolhurst focused on the BEIS consultation into the use of NDAs and discrimination in the workplace. When asked if she would consider requiring employers to publish data on NDA use, the minister agreed this might be useful.

Coming up this week

No Brexit votes have been tabled in the House of Commons as of yet, although that may change as matters develop. The Housing, Communities and Local Government ministerial team will answer questions from MPs today, and the attorney general's Office will do the same on Thursday. Wednesday will see a Westminster Hall debate on legal aid for inquests.

In the House of Lords a question will be asked on Wednesday about doing business related to AI and distributed ledger technology in the UK.

If you made it this far

We've launched a new petition calling on the government to increase investment in the criminal justice system.

Question or comments? Contact the Public Affairs team at or 020 7320 5858.

Tags: justice | Theresa May | Westminster weekly update | Parliament | Brexit

About the author

Alexandra Cardenas is Head of Public Affairs and Campaigns at the Law Society. Public Affairs manages the relationships with parliament and government. She is a dual qualified solicitor in England and Wales (2014), and Colombia (2002). Prior to the Society, she practised as a human rights lawyer and worked at Macmillan Cancer Support and Animal Defenders International.

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