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Westminster weekly update: Prorogation begins, but ruled 'unlawful'

16 September 2019

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


One thing you need to do

Check out our programme of activity at the Liberal Democrat, Labour and Conservative party conferences this autumn.

Five things you need to know

1. Prorogation begins, but ruled 'unlawful'

Parliament was dissolved in the early hours of Tuesday morning, and does not plan to sit again until a new session has begun with the State Opening of Parliament and Queen's Speech on 14 October.

Before the prorogation period began, the Commons also voted once again against a government-led motion for an early general election, with the government failing to achieve the two thirds majority necessary for it to pass, as leaders of the Liberal Democrats, Scottish National Party, and Labour Party agreed to withhold support for an election until after 21 October. The earliest an election can now happen is late November, as 25 working days are needed between an election being called and polling day.

Last Wednesday, the Scottish Court of Session ruled that the prime minister's advice to the Queen that parliament should be prorogued until 14 October was "unlawful because it has the purpose of stymying Parliament." The case was brought by Scottish National Party MP Joanna Cherry QC, amongst others. An appeal against the ruling will be heard by the UK Supreme Court on Tuesday 17 September. If the Supreme Court rules against the government, parliament may have to be recalled.

Appearing on the Andrew Neil show on Wednesday night, business minister Kwasi Kwarteng MP spoke about the judges in the case stating: "Many people are saying that the judges are biased. The judges are getting involved in politics." The prime minister went on to affirm his respect for the independence of the UK judiciary and the lord chancellor Robert Buckland QC MP tweeted: “Our judges are renowned around the world for their excellence and impartiality and I have total confidence in their independence in every case.” The Law Society reaffirmed the importance of the independence of judiciary to the rule of law in a press release.

2. Probate fees vote lapses following successful Law Society campaign

The prorogation of parliament last week led to the long overdue vote to approve the government’s probate fee hike lapsing. This means the fees will not be introduced unless the statutory instrument is brought back in the next parliament. This is a victory for the Law Society, which launched a campaign in opposition to the proposed fee hike in February. Since then, our arguments have been cited in parliament 13 times, and were featured in 20 pieces of national media coverage, including pieces by Sky News, the Financial Times and the Daily Telegraph.

The government may yet decide to table a new vote on the plans after the new session of parliament begins on 14 October. If a new vote is tabled the Law Society will continue its campaign against the fee hike.

3. Fate of proposed legislation unclear

Following prorogation, legislation which was before parliament fell. This included the Courts and Tribunals (Online Procedure) Bill, which had already passed through the House of Lords and was awaiting report stage in the House of Commons, the Divorce, Dissolution, and Separation Bill, which was also awaiting report stage in the House of Commons, and the Domestic Abuse Bill, which had its first reading in the House of Commons in July 2019.

The government have since confirmed that they intend to reintroduce the Domestic Abuse Bill in the next session and that it will be part of the legislation announced in the Queen’s Speech on 14 October. The fate of the other legislation, and whether or not they will be reintroduced, remains unclear.

4. 'Benn Bill' granted royal assent

Last Monday the 'Benn Bill' was granted royal assent and passed into law. Now the European Union (Withdrawal) (No. 6) Act, it forces the prime minister to seek an Article 50 extension if a withdrawal agreement cannot be passed by mid-October. In an interview with Andrew Marr on Sunday, foreign secretary Dominic Raab MP said the government will “adhere to the law,” but also indicated that it may “test to the limit exactly what it lawfully requires” – possibly through the courts.

The legislation, tabled by Exiting the EU Select Committee Chair and Labour MP Hilary Benn, was able to be introduced to the House after an emergency debate and ruling by speaker John Bercow MP last week. He deemed it allowable for MPs to vote to take control of the parliament if a majority of MPs supported the move, and the government was defeated by a margin of 27 votes.

In the vote 21 Conservative MPs rebelled against the government, who attempted to vote down the motion, and later had the party whip withdrawn from them, pushing the government even further from a majority. These MPs (listed here) now sit as independents, and some – including previous justice minister Rory Stewart MP – have said that if they are not re-selected by their constituency parties to run as a Conservative candidate in the next election, they will run as an independent.

5. Courts and tribunals modernisation programme assessed

The National Audit Office (NAO) published a progress update as part of their work on ‘transforming courts and tribunals’ last Friday.

The NAO previously published a report on this issue in May 2018, which was then subject to a Public Accounts Committee inquiry. The Law Society gave oral and written evidence to that inquiry, and we were mentioned several times in the Committee’s own report.

Today’s progress update describes progress following the second stage of its reform programme, which ended in January 2019. It also looks ahead at the estates reform programme, which aims to reduce the size of the court estate.

The report concludes that:

  • people can now access services through simpler online routes because of the reforms delivered to date
  • some planned services are not yet fully available to the public because HMCTS has made less progress than it had expected to by this stage
  • HMCTS has acted on concerns raised in the NAO’s previous report
  • HMCTS has again had to reduce the scope of the reform portfolio and extend the timetable, which has decreased risk but also cut expected savings
  • the total savings claimed by HMCTS may not all directly result from reformed services
  • HMCTS has closed 127 courts and tribunals in England and Wales and reported sales proceeds of £124 million since the start of estates reform in 2015, which is broadly on track against plans
  • HMCTS has scaled back its plans for future court closures
  • HMCTS has reconsidered its approach to future closures following stakeholder feedback and needs to be clear on how it will apply it in practice
  • HMCTS needs to better understand the impact of its reforms, including how they are affecting users of the justice system
  • as it enters the third stage of reform, HMCTS must move from designing new services to scaling up implementation and integrating projects across its portfolio

The NAO make several recommendations to HMCTS, including that they:

  • must maintain a strong grip on progress to maximise the benefits from its substantial investment in reform
  • should improve how it measures the benefits of reform, more clearly demonstrating where savings are coming from
  • should better demonstrate how it is monitoring the impact of its reforms on users of the justice system
  • should provide more clarity on how, in practice, it will meet the commitments set out in its Fit for the Future response

Read the report

Coming up this week

This week will see the UK Supreme Court's ruling on the appeal against the Court of Session's verdict on prorogation on Tuesday.

Meanwhile last weekend the Liberal Democrat Autumn Conference commenced in Bournemouth, where members voted on leader Jo Swinson MP's proposal to make revoking Article 50 an official party policy. The Labour Party Annual Conference will begin the this weekend (21-25 September) in Brighton.

If you made it this far

Read Law Society president Simon Davis' response to the Scottish Court of Session's prorogation ruling, where he calls for influential voices to "avoid intemperate language and resolve to protect and promote the rule of law, supporting our judiciary, independent from interference."


Question or comments? Contact the Public Affairs team at parliamentary@lawsociety.org.uk or 020 7320 5858.

Tags: 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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