The groups included the Confederation of British Industries and Trade Union Congress. The Law Society submitted written evidence to this inquiry last week.
The House of Commons and House of Lords will be on recess on 8 and 9 November.
Last week, Justice Oral Questions took place following the release of the Government’s post legislative memorandum of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and presented it to the Justice Select Committee. The report mentioned the Law Society’s own report on the Act which was published in July and referenced our key areas of concern. In Justice Oral Questions the Lord Chancellor confirmed that the review of the Act will publish by Summer 2018.
The Lords Justice Spokesperson, Lord Keen gave evidence on the discount rate legislation as part of the Justice Select Committee’s pre legislative scrutiny. Lord Keen said the principle behind the proposed changes was the need for fair compensation and in hindsight the rate should not have been left alone for so long.
Secretary of State for Exiting the EU, David Davis MP, also give evidence to the House of Lords EU Committee as part of their inquiry on Brexit: deal or no deal. Within the session David Davis said that the EU (Withdrawal) Bill was not ‘untouchable’ and they did expect amendments.
This week in Parliament
Monday 6 November
House of Commons
- Debate on a motion on the British membership of the European Economic Area
House of Lords
- Data Protection Bill [HL] – Committee Stage (Day 2)
Tuesday 7 November
House of Lords
- EU Lords Committee – Brexit: deal or no deal. Witnesses include
- John Foster, Director of Campaigns, CBI
- Owen Tudor, Head of European Union and International Relations, TUC
Last Week in Parliament
Monday 30 October
Government publishes post legislative memorandum on LASPO
The Government published its post legislative memorandum on the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and presented it to the Justice Select Committee. The report mentioned the Law Society’s report on the Act which was published earlier this year and referenced our key areas of concern.
Tuesday 31 October
House of Commons
Justice Oral Questions took place on Tuesday. The main points from the session were:
LASPO review – When questioned about the fall in legal aid being nearly double the £350 million the Government intended through LASPO, Raab stated that £1.6 billion is spent on legal aid in England and Wales in 2016 and this was the highest per capital in Europe according to a Council of Europe review.
Early legal advice – Shadow Justice Minster Yasmin Quershi quoted Baroness Hale’s comments that legal aid reforms are a false economy and asked if the Government would look to restore early legal aid to the reduce number of cases coming to court and therefore court time. Raab said he agreed that we need to reduce the number of people going to court, particularly in family cases. He said the LASPO review has clear terms of reference and the points she raised were within scope. However he was not going pre-empt or prejudice the review.
Domestic violence – Shadow Justice Minister, Gloria de Piero, asked when secondary legislation would be published following the courts decisions on legal aid for domestic violence victims. In response Raab said that it is vital that legal aid for domestic violence victims is granted and 12,000 cases were granted legal aid last year. He said they would be announcing details on changes shortly.
Clinical negligence – Labour MP Liz Kendall asked the Lord Chancellor if he would meet with her and patient groups to discuss concerns around the Government’s new proposals to limit legal costs and damages for clinical negligence. Lidington said this fell within the Department of Health’s remit but he was happy to meet.
Legal aid for inquests – Labour MP Ellie Reeves raised concerns about accessing legal aid for inquests. In response Raab said that legal aid remains available through the Exception Case Funding scheme and in 2016-17 over half of applications were granted. (The Law Society met with Ellie Reeves this month and provided her with a briefing on legal aid and inquests).
European Convention of Human Rights (ECHR) – Following the announcement of the vote being extended to some prisoners, there were a number of questions on the ECHR. The Lord Chancellor gave reassurance that the Conservative manifesto had committed to maintain part of the European Convention of Human Rights for the period of this Parliament.
Charter of Fundamental Rights - Philip Lee said that the EU (Withdrawal) Bill will give some protection of the Charter of Fundamental Rights but it would be wrong for the Charter to continue to be used in any future legal case of UK law when we leave the European Union.
Promoting UK jurisdictions – A number of SNP MPs raised concerns that the Ministry of Justice is only promoting England and Wales through their Legal Services is GREAT campaign. Dominic Raab MP said they recognised the distinct nature of the jurisdictions. He said that the Government was working towards the smooth transition on civil justice co-operation and wanted to take advantages of the international opportunities to promote UK legal services. He noted the sector is worth £25 billion to the UK economy
Vulnerable witnesses – Conservative MP, Oliver Dowden asked about protection of child abuse victims in Courts and in response Raab said that they had begun pre-trial examination of witnesses in January 2017. He said there would be a further roll out in the Crown Courts for sexual abuse and modern slavery victims in the autumn. In wider questioning, Raab said they are investing £1 billion in the courts to make processes more sensitive to victims and witnesses, and to ensure swifter and more effective justice. They are also creating model waiting rooms to support victims.
Commercial litigation – Conservative MP Robert Jenrick said that the exceptionally high cost of commercial litigation is good for commercial lawyers but not for large or small businesses. He asked the Lord Chancellor whether he will look into the ethical and other concerns about commercial litigation financing and the Lord Chancellor said he was happy to.
Maternity employment tribunal claims – Liberal Democrat MP Jo Swinson asked the Government whether they would take on the recommendation of the Women and Equalities Committee and Justice Committee to increase the time limit for bringing an employment tribunal claim related to pregnancy or maternity discrimination. Raab asked her to send him the evidence that extending the claim time limit to six months would make a difference.
House of Lords
Brexit Secretary gives evidence on Brexit: deal or no deal
Secretary of State for Exiting the EU, David Davis, gave evidence to the Lords EU Select Committee as part of its inquiry into the scrutiny on the EU negotiations. He noted that the next round of negotiations will take place at the end of next week.
The Law Society recently submitted written evidence to this inquiry on the impact of no deal on legal services and the justice system. We also released a press release on the issue which can be found here.
The key points from the session were:
‘Make or break’ issues in the negotiations - David Davis said that he did not think the financial settlement would be a make or break issue for the negotiations but there were a host of issues of which financial services is one, that could make or break talks.
Sector studies - Davis said the Government cannot release anything that undermines the negotiations. He said these are not predictions and people shouldn’t over-estimate what they are. These comments are superseded by an opposition led debate in the House of Commons ON Wednesday which stated bound the Government to publish the documents. We are aware that legal services is one of the 58 sectors which has been analysed.
EU (Withdrawal) Bill - Davis hinting that the Government would be willing to accept some amendments to the EU Withdrawal Bill, and said the Bill is not designed to be “untouchable” but he would not say which, or what type of, amendments the government will accept during committee stage until it takes place.
Withdrawal agreement - Davis also appeared to admit that the withdrawal agreement will, on balance, probably favour the EU in terms of things like money, but argued when it came down to the future relationship the agreement would favour both sides.
Transitional arrangements - He repeated that he was hopeful the Government could agree a transition phase by the end of Q1 2018. He also said that a transition period “won’t be free. It won’t come for nothing”. Davis re-iterated that he believes the future relationship could be agreed politically by October 2018, and that the government hopes to have an implementation deal agreed in principle by March 2018.
Trade - Davis argued that the UK has under-estimated opportunities of trade deals after Brexit. He said the UK would be the most proactive protagonist of free trade in the world post-Brexit. Davis added he believed the UK could agree to trade deals much more quickly as a single country than the EU as a block of 28, and said future UK trade deals would focus on services. He said leaving the EU would bring qualitative, quantitative and speed advantages in negotiating trade deals.
Northern Ireland - Davis said the Government is committed to the preservation of an invisible border, but this entirely rests on what the final trade deal looks like. He said that if trade reverts to WTO tariffs, this would cause real problems at the border. He added that the EU are suspicious that the UK are trying to use the sensitivities of the Irish border to try and get a better deal, but he argued this certainly isn’t the case and highlighted the importance of ensuring there is frictionless trade across the border.
No deal - Davis said that no-deal is not what they are seeking. He said this situation is improbable but thinks that whatever happens there will be still some agreements that will be necessary and they will look to agree, such as in aviation.
Wednesday 1 November
House of Commons
The Justice Select Committee took evidence from claimant and defendant organisations as part of their pre-legislative scrutiny of the discount rate legislation. The Lords Justice Spokesperson, Lord Keen of Elie also gave evidence. The key points from the minister’s session were:
- Lord Keen said the principle behind the proposed changes was the need for fair compensation and in hindsight the rate should not have been left alone for so long.
- Lord Keen confirmed that no matter where the rate is set some people will be under-compensated. Under the current rate the median victim receives 120% once you account for management fees and there is a 4% chance of being undercompensated by 5%.
- Victoria Prentis MP noted the legislation assumes people will get proper investment advice. She referenced the Law Society submission which suggested that if that is the case, the cost of obtaining such advice should be included within compensation. LK confirmed he was aware of the Law Society submission but stated this was not a current valid head of damage in law. In fixing the rate the Lord Chancellor will have regard to the fact that portfolios will be subject to charges and this will therefore be reflected in the rate.
- When questioned on what evidence the government had any evidence that insurance premiums would reduce, Lord Keen stated that LV had announced they would pass on savings and in a competitive market others will follow.
- Lord Keen confirmed the legislation will hopefully be in the early part of next year and the review will follow that.
Thursday 2 November
House of Commons
Exiting the EU oral questions
Citizens rights - When asked what steps DExEU is taking to maintain the rights of EU citizens living in the UK after the UK has left the EU, Exiting the European Union Minister Robin Walker MP noted progress was being made, and said that an agreement on this issue was close.
- Responding to a referral to a private members bill presented on enshrining workers’ rights in domestic law post-Brexit, Exiting the European Union Secretary David Davis MP said that Parliament would be addressing the issue. He pointed to the progress table published by the negotiating parties, and said agreement had been achieved on key issues such as healthcare, residence arrangements and citizens’ recourse to the courts.
When asked what steps he will take to maintain children's rights contained in the EU Charter of Fundamental Rights (ECFR) in the event that that charter no longer applies in the UK once the UK leaves the EU, Robin Walker said the Government would seek to maintain rights, and stressed that the ECFR inferred no separate rights. He added that cooperation with the EU on the protection of children would continue after Brexit – but was not explicit about what this would look like.
Maintaining legal certainty - Shadow Brexit Secretary Sir Keir Starmer noted that Parliament had passed a binding motion requiring the Government to publish Brexit sectoral impact assessments, and asked when they would be revealed. Responding, Robin Walker said that the Government would “respond appropriately as soon as conceivable”. Following this, Sir Keir demanded their publication in unredacted form prior to Recess.
Access to justice - Labour MP Ian Mearns expressed concern that workers’ rights could be undermined with Brexit and asked about the future of employment tribunal fees. Responding, Davis stressed that Brexit would not be used as an opportunity to remove employment rights. He referenced the purpose of the Taylor Review and stated rights would improve.
Friday 3 November
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