The Exiting the EU Committee will hold an evidence session on the progress of the UKs negotiations on EU withdrawal with Exiting the EU ministers, Suella Braverman MP and Steve Baker MP.
The Lord Chancellor will also appear before the Joint Committee on Human Rights to discuss attitudes to enforcement. Meanwhile in the Lords, the EU Justice Sub-Committee will hold oral evidence session on civil justice cooperation post Brexit.
Last week, the Justice Select Committee published their report on the small claims limit for personal injury. The Law Society submitted written evidence to this inquiry and we are frequently mentioned in the report, which shares our concerns about access to justice, and the financial and procedural barriers that claimants may face. A debate took place in Westminster Hall on Wednesday regarding housing and access to legal aid. The Law Society was mentioned ten times during the debate, including a direct quote of our vice president Christina Blacklaws by the Shadow Justice Minister, Gloria de Piero MP.
Last Tuesday, the Head of the UK Law Societies’ Joint Brussels Office, Dr Helena Raulus gave oral evidence to the Lords EU Justice Sub-Committee as part of their follow-up inquiry on civil justice co-operation post Brexit.
There was a Westminster Hall debate regarding public legal education (PLE). Responding to the debate, Shadow Solicitor General Nick Thomas-Symonds MP (Labour, Torfaen) praised the contribution of organisations including the Law Society to public legal education. The Civil Liability Bill had its second day of debate at Committee Stage in the House of Lords. No amendments were made during the session, and the Bill will now progress to Report Stage in the House of Lords. The date for report stage has not yet been announced.
On Wednesday, the President also attended a dinner discussion on legal services with the Lord Chancellor, Rt Hon David Gauke MP, and the Secretary of State for Business, Enterprise and Industrial Strategy, Rt Hon Greg Clark MP.
This week in Parliament
Monday 21 May
House of Lords
- Repealing discriminatory legislation in Commonwealth countries (Baroness Barker)
- Data Protection Bill [HL] – Consideration of Commons Amendments
- Sanctions and Anti-Money Laundering Bill [HL] – Consideration of Commons amendments
Tuesday 22 May
House of Commons
- Justice Select Committee oral evidence session on criminal legal aid with Daniel Bonich (Vice Chair, CLSA) and Richard Miller (Head of Justice, Law Society)
House of Lords
- EU Justice Sub-Committee oral evidence follow-up session on family law and civil justice cooperation post Brexit
Wednesday 23 May
House of Commons
- Exiting the EU Committee oral evidence session on the progress of the UKs negotiations on EU withdrawal with Suella Braverman MP and Steve Baker MP (Exiting the EU ministers)
House of Lords
- Liaison Committee (Lords) oral evidence session on review of investigative and scrutiny committees European Union (Withdrawal) Bill – Third Reading
- Joint Committee on Human Rights oral evidence session on enforcing human rights with the Lord Chancellor
Thursday 24 May
House of Lords
- Oral question on the report of the independent review of the application of sharia law in England and Wales (Baroness Cox)
- Debate: European Union Committee report: 'Brexit: competition and State aid' - Lord Whitty
- EU External Affairs Sub-Committee oral evidence session on Brexit and customs arrangements
Monday 14 May
House of Commons
Westminster Hall debate on Grenfell Tower Inquiry
A Westminster Hall debate took place in Parliament regarding the Grenfell Tower Inquiry. The debate was called to discuss a petition regarding membership of the inquiry’s panel, which has attracted over 150,000 signatures, and follows the announcement on Friday 11 May from the Prime Minister that an additional two panel members will be appointed.
The debate largely focused on the impact of the disaster, and on the rehousing of those affected. David Lammy MP (Labour), noted that of those affected, there are 72 households still in hotel rooms, 64 still in temporary accommodation and only a third have been housed. Further debate focused on cladding and the Hackitt report’s potential conclusions and recommendations, which is due to report in the coming weeks.
Regarding the inquiry, many MPs shared the communities’ frustration with the lack of progress of the inquiry and raised concerns that people must be able to feel confidence in the inquiry. It was welcomed that the Prime Minister had announced an additional two panel members.
- Joanna Cherry QC MP (SNP) and Alison McGovern MP (Labour) both spoke about the need to ensure an ‘equality of arms’ in the inquiry. McGovern also noted that the Government has still not responded to the Bishop James Jones report following the Hillsborough tragedy, and called for the introduction of the ‘Hillsborough Law’.
- Concerns regarding the disclosure of evidence were raised. In response to the debate, the Minister, Nick Hurd MP, said that the inquiry has received around 330,000 documents and has conducted an initial review of more than 180,000 documents. He said that the inquiry must review the documents, first for relevance and to identify duplication, and then to decide how each document fits into the picture that the inquiry is building up. He noted that the inquiry has been disclosing documentary evidence to core participants of the inquiry on a confidential basis since February and will continue to do so.
Tuesday 15 May
House of Commons
Westminster Hall debate on public legal education
On Tuesday, there was Westminster Hall debate regarding public legal education (PLE).
The Law Society was mentioned several times during the debate.
- Moving the debate, Ranil Jayawardena MP (North East Hampshire, Conservative) supported expansion of PLE. He spoke about the importance of the rule of law, and that the public should not just respect the law, but they should also understand it and their rights. He spoke of the benefits of PLE, in that it allows people to have increased independence and allows them to access justice. He spoke of the need to ensure that PLE is provided to young people and in school, and in community settings. He said that greater PLE would improve our legal system.
- Responding to the debate, Shadow Solicitor General Nick Thomas-Symonds MP (Torfaen, Labour) praised the contribution of organisations including the Law Society to public legal education. He welcomed the new panel on PLE set up by the Solicitor General. He raised concerns regarding the ability of individuals to access justice and enforce their rights regardless of wealth, citing cuts to legal aid. He echoed the Law Society’s campaign by calling for the restoration of early legal advice.
- Responding to the debate, Solicitor General Robert Buckland MP spoke about the Government’s commitment to improving PLE and access to justice. He agreed that PLE is not a substitute for legal aid. He welcomed the work that legal bodies such as the Law Society do to support PLE.
Other contributions to the debate included from:
Joanna Cherry QC MP (Edinburgh South West, SNP) spoke about her work as part of the Joint Committee on Human Rights who have heard evidence about the need for greater PLE as part of their inquiry on the enforcement of, and attitudes to, human rights. She contrasted the teaching of human rights in Scotland with the rest of the UK. She spoke about the contribution of pro bono by many lawyers. She welcomed the parliamentary briefings that she has received on legislation throughout her time as an MP from the Law Society and others, as a way of providing PLE. She said that PLE should not be used to plug the gaps left by legal aid cuts, and that access to justice should always be our main concern.
Dan Poulter MP (Central Suffolk and North Ipswich, Conservative) twice intervened to call for big law firms to do more to provide pro bono work.
The full debate can be read here, and a summary of the debate is included below.
Home Secretary gives evidence on Windrush children
On Tuesday, the Home Secretary, Sajid Javid MP appeared in front of the Home Affairs Committee as part of its inquiry into the case of the Windrush children. The full transcript is available here, and a summary is included below.
The Chair of the Home Affairs Select Committee, Yvette Cooper MP (Labour) asked if the Home Secretary had looked at whether people, who may have been wrongfully deported, should be able to get legal aid. Sajid Javid said he had not apart from the fact that currently there are legal systems in place for some people with legal aid. The Home Secretary added that he had begun discussing the issue with the Justice Secretary to see if there is more that can be done.
Right to appeal
Douglas Ross MP (Conservative) highlighted there is no statutory right of appeal for the victims of the Windrush scandal and asked the Home Secretary if he thought there should be. In response, the Home Secretary, said the Windrush taskforce is to make sure, given the changes, that they approach both the burden of proof and the quality of proof in such a way that no one who has any case is being turned down. The Home Secretary went on to say, perhaps rather than a legal appeal process, which could cost money and take time and people have to hire lawyers, there could be an independent person to have some kind of administrative look in certain circumstances.
Home Office system concerns
Yvette Cooper MP (Labour) asked if the Home Secretary saw a systemic problem in the Home Office. The Home Secretary argued he would not describe it as a systemic problem and claimed to have seen no evidence of that. He said that with this particular group, the approach being taken now was the right one and therefore what happened in the past did not reflect their circumstances.
Yvette Cooper MP (Labour) raised that there is no way for the Home Office to assess broadly what the level of errors was in the system. The Home Secretary recognised it can be quite difficult to get that information but this did not mean to say the Home Office could not attain the number of errors.
House of Lords
Peers consider Civil Liability Bill at Committee Stage
The Civil Liability Bill had its second day of debate at Committee Stage in the House of Lords last Tuesday.
The Law Society briefed peers ahead of the debate, and the transcript from the debate can be found here.
No amendments were made during the session, and the Bill will now progress to Report Stage in the House of Lords. The date for report stage has not yet been announced.
A number of probing amendments to Clause 8 of the Bill were moved but subsequently withdrawn. Clause 8 of the Bill is focused on the assumed rate of return on investment of damages.
These amendments included:
- Amendment 55, moved by Lord Hodgson of Astley Abbotts (Conservative) called for greater provisions for periodical payment orders (PPOs) to be introduced, particularly where injured persons have long-term conditions or are risk averse. Responding to this amendment for the Government, Lord Keen of Elie said he wished to see “a more modest approach”, where claimants were sufficiently well informed about the implications of choosing either a lump sum payment of PPO.
- Amendment 61 and further amendments moved by Lord Hodgson of Astley Abbotts (Conservative) focused on the methodology used for reviewing the rate of return. Responding to this amendment for the Government, Lord Keen of Elie expressed the belief that establishing an expert panel with control over the frequency and recommendations of reviews was not preferable to the provisions in the Bill, which were crafted after pre-legislative scrutiny and public consultation. He added, however, that the Lord Chancellor would consider these expert views when taking decisions.
- Amendment 78 and further amendments moved by Shadow Work and Pensions Spokesperson Lord McKenzie of Luton (Labour) sought to limit the power of the Lord Chancellor regarding the determination of the rate of return. Responding to this amendment for the Government, Lord Keen of Elie gave assurances that the government was not seeking to move away from 100% compensation.
Law Society give evidence to peers on Brexit and civil justice cooperation
Dr Helena Raulus (Head of the UK Law Societies’ Joint Brussels Office) gave oral evidence to the Lords EU Justice Sub-Committee as part of their follow-up inquiry on civil justice co-operation post Brexit.
She appeared alongside Alex Layton QC (AL), who was representing the Bar Council of England and Wales.
Please find a summary of the key points below:
Impact of Brexit on UK legal services market: Asked by Labour Chair Baroness Kennedy what the Law Society’s assessment of the Brexit uncertainty and its impact on the sector, Helena Raulus (HR) said there had been more certainty in the draft of the withdrawal treaty and in the transition period. She added that at the end of 2020 that the sector would be facing the same question they were considering now about what would follow. HR went on to say that the Law Society (TLS) were still uncertain whether the UK’s future relationship with the EU would be wrapped up in FTA arrangements, as civil justice provisions were normally not covered by FTAs.
Continental profiting from Brexit uncertainty: Labour peer Lord Anderson asked about EU member states trying to tempt businesses to leave the UK for the continent, HR said firms were waiting to see what the final arrangements were before deciding, and that getting an agreement on arbitration was important because this was such a costly mechanism for SMEs.
Brussels Regulation: Labour peer Lord Cashman asked what steps the Government had taken since the Committee’s March 2017 report to mitigate the uncertainty about the continued operation of the Brussels Regulations post-Brexit. AL said the Government’s fine words in its position paper had not been matched by action, while HR added that the paper had merely reiterated what TLS and the Bar Council had been saying. She said the EU’s response to this had been ambivalent, and was locked behind bigger issues such as the CJEU and the institutional relationship.
Government engagement: Conservative peer Lord Gold asked if the Government was seeking guidance on these issues and if they were listening, HR said TLS had regular with the Ministry of Justice (MoJ), including through the Brexit Law Committee, and found the MoJ to be very supportive in this area, and that they understood the issue. AL said that he had been informed by Bar Council colleagues that the Government had not been knocking down their door.
Brussels regime during transition: Lord Neuberger asked for the witnesses’ assessment of the so-far unagreed provisions in the draft Withdrawal Agreement on the application of the Brussels regime during the transition period (Article 63). AL said Article 63 was not due on the agenda for the next set of Brexit discussions, and that there was a concern it was becoming a bargaining chip in the negotiations.
‘Winding down’ civil justice and family law co-operation: Crossbencher Lord Cromwell asked the witnesses for their reaction to the Government’s statement in its formal response to the Committee’s report that should it fail to reach an arrangement with the EU27 on future civil justice cooperation it is considering how “ongoing cooperation in this area could be wound down”, and where this would leave family law and justice in particular. AL said he was concerned by this choice of words, and that if there was no agreement on family law, then there would be trouble. He went on to say that pro-Brexit supporters had said they’d expect this co-operation to continue on family law. AL also said that no member state could negotiate outside the EU to deal with this issue.
Lugano Convention and Mansion House speech: Asked by Lord Judd about the Prime Minister’s aspiration for a “broader” agreement on civil judicial co-operation than Lugano, AL said a more ambitious agreement than the existing EU arrangement would never happen. HR said either it was Lugano, or civil justice co-operation, or both, adding that she was wary of the “Danish model” in this areas as Denmark was a member state and a member of the Internal Market at that. She also reiterated the point that given the UK Government’s Brexit red lines, the UK had only an FTA model on the table (which traditionally do not cover civil justice arrangements), and the Lugano Convention.
Wednesday 16 May
House of Commons
Treasury Select Committee looks at SME finance
Last week the Treasury Select Committee took oral evidence as part of its inquiry on SME finance, considering the extent of competition in the market, the various sources of funding available to small businesses, and whether the current regulatory framework provides appropriate protection to SMEs when they borrow money.
The witnesses for the session were:
- Richard Samuel, Barrister, 3 Hare Court Chambers
- Andrew Green QC, Specialist Adviser to the Treasury Committee
- Cat Maclean, Head of Dispute Resolution, MBM Commercial.
A summary of the session is below:
Banking misconduct: Committee chair Nicky Morgan MP asked how much banking misconduct was hidden behind non-disclosure agreements (NDAs) and commented that it was difficult for smaller businesses to get representation against banks and their large panels of lawyers. Cat Maclean (CM) agreed it was difficult to find an SME willing to take on a bank. Richard Samuel (RS) said it was unfair to ask anyone to pull their punches in a litigation scenario, as long as they were acting within the rules.
New FS tribunal proposal: Andrew Green (AG) said the judicial system was more than capable of resolving the types of disputes they were discussing, and therefore a compelling reason was required for setting up a new mechanism for dispute resolution in financial services (FS). He added that he was sceptical it would have a massive impact, and that it would be as expensive as the High Court. In response, RS said that cost was not the sole reason for the tribunal. RS added that it was the markets as well as the consumers who wanted certainty.
Culture change: Ms Morgan asked the witnesses whether another tribunal would change the culture in FS and whether legislative change was needed. RS said that until you gave complainants the right to have their cases heard then there would be no downside for the likes of Harvey Weinstein to pay people off and use NDAs. AG responded that it was unrealistic that this would occur, given banks were fined hundreds of millions of pounds already with little evidence of culture change - adding that it was for Government and the regulator to lead this change.
Power imbalance: Labour MP John Mann questioned the witnesses about how wealthy people could “put money in the court against the little guys” in the context of a tribunal system. CM said you couldn’t eliminate the power imbalance between large and small businesses, but you can do a lot to reduce it and that tribunal system offered a simplified and fast-tracked approach. RS said that a tribunal system meant that you did not have to pay the other side’s costs in the event of losing, and said the Law Commission were looking at researching whether an upper limit cap was required.
Redress schemes: SNP MP Stewart Hosie asked what witnesses thought of the FCA’s ad hoc redress schemes compared with tribunals. RS said the FCA had described their strengths accurately, which was the consistency of outcome. However RS went on to say you needed a tribunal system that was independent of the FCA.
Westminster Hall debate on housing and access to legal aid
A debate took place in Westminster Hall on Wednesday regarding housing and access to legal aid. The Law Society was mentioned ten times during the debate, including a direct quote of our vice president Christina Blacklaws by the Shadow Justice Minister, Gloria de Piero MP. There were also numerous mentions of our early advice and legal aid deserts campaigns, and a reference to our legal aid means test report.
The full debate can be read here, and a short summary is included below.
Moving the debate
- Moving the debate, Ruth Cadbury MP (Brentford and Isleworth, Labour) highlighted the need for early legal advice in housing cases, and the existence of legal aid deserts in housing law.
- Cadbury said that in 2016, the Law Society found that one third of legal aid areas have just one solicitor providing specialist housing advice through legal aid.
- Cadbury supported the Law Society’s call for the restoration of early legal advice and research that we published which shows that early legal advice helps resolve a problem sooner. She noted that the Labour Party had announced new policy to restore early legal advice in all housing cases.
- Cadbury said that with the housing crisis, the number of legal issues relating to housing is rising. She raised situations and examples of constituents with housing issues who were not in receipt of legal aid.
- Responding to the debate, Shadow Minister Gloria de Piero MP (Ashfield, Labour) argued that people are being denied access to justice by the legal aid cuts brought in under LASPO.
- De Piero quoted the vice president of the Law Society, Christina Blacklaws who said “The current situation is unsustainable. If early advice was available to those who need it, issues could be resolved before they worsen and become more costly for the individual – and the public purse.”
- De Piero noted that the Law Society have published research which shows that early legal advice helps people to resolve issues sooner.
- Responding to the debate, Justice Minister Lucy Frazer QC MP (South East Cambridgeshire, Conservative) said that the Government spends £1.6 billion a year on legal aid. The Minister said that it is right that the Government spends money to support those most vulnerable who have no alternative for legal support.
- The Minister outlined some of the areas in which legal aid is available for housing, including through advice over the telephone.
- The Ministry of Justice is committed to ensuring that everyone has sufficient advice wherever they live, the Minister argued in response to concerns regarding housing advice deserts. She outlined that of the 134 housing and debt procurement areas for legal aid, all but one currently has provision.
- The Minister said there is a review of LASPO ongoing.
Liz Saville Roberts MP (Dwyfor Meirionnydd, Plaid Cymru) raised the issue of a legal aid desert covering her constituency and the impact on her constituents. There is only one housing legal aid provider for a population of more than 300,000.
Ellie Reeves MP (Lewisham West and Penge, Labour) supported the Bach Commission and the Law Society’s call for the reintroduction of early legal advice. She noted that since the LASPO reforms, the number of housing cases have fallen by 50 per cent.
Jim Shannon MP (Strangford, DUP) supported calls to improve the provision of legal aid. He quoted from an article in the Independent on the Law Society’s legal aid means test report, which highlighted that some people living below the poverty line were deemed ineligible for legal aid by the means test.
Stuart C McDonald MP (Cumbernauld, Kilsyth and Kirkintilloch East, SNP) said that good and early advice is essential, but that it is becoming increasingly difficult to access. He highlighted advice deserts and the need for early advice and said that the Law Society had estimated that early advice on housing benefits, rent arrears and other housing issues could be restored for as little as £2 million.
House of Lords
EU (Withdrawal) Bill passes Third Reading
The EU (Withdrawal) Bill had its Third Reading in the House of Lords last week. The full debate can be read here.
The Bill will now return to the Commons for its ‘Ping Pong’ stage, where amendments made to the Bill in the Lords will be considered by MPs. The Government has not yet announced a date when the Bill will be return to the Commons, although it is their intention to have the Bill completed by summer recess in late July.
The Labour Lords website has put together a brief summary of the Government’s 15 defeats in the Lords. Peers have made 196 amendments to the EU Withdrawal Bill in total.
Lords oral question on immigration applications
On Wednesday, Lord Roberts of Llandudno tabled a question asking the government what steps are being taken to improve the assessment of immigration applications by UK Visas and Immigration. Please find a summary below and the transcript can be found here.
Lord Roberts (Liberal Demoncrat) asked what steps the Government was taking to improve the assessment of immigration applications by UK Visas and Immigration (UKVI), given that 40 perc cent of immigration appeals heard by the Immigration and Asylum Tribunal in 2016 were granted. In response, the Minister, Baroness Williams, said UKVI was focused on improving the quality of all decisions making, adding that while appeals are allowed for a variety of reasons, the Home Office recognised that continued improvement is necessary. The Minister also stated the Home Office was working with Her Majesty’s Courts and Tribunals Service on reducing the number of outstanding appeals and the time taken through the appeals system.
Lord Kennedy of Southwark (Labour) asked the Minister what was the cause of the increasing number of appeals. The Minister responded that many of the cases going through the appeals system were very old and appellants have often built up new rights over that time.
The Lord Bishop of St Albans (Cross Bench) highlighted that the average length of time that appeals are taking was increasing, asked if targets needed to be introduced to reduce the length of time needed to process them. Baroness Williams states that the Government was endeavoring to reduce the amount of time people spent in “limbo”.
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