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Westminster weekly update: Richard Atkinson gives evidence on the Counter Terrorism and Border Security Bill

05 July 2018

Last week, Richard Atkinson, Co-Chair of the Law Society’s Criminal Law Committee, gave evidence on the Counter Terrorism and Border Security Bill and set out our concerns around access to a lawyer and new powers to seize privileged material.


This week the Law Society were part of a coalition of professional and business services organisations who wrote to the Prime Minister on the importance of services in the negotiations with the EU. You can read the letter from the coalition and coverage of it can be found in the Financial Times, the Telegraph, the BBC and the Guardian.

The parliamentary week began with an Estimates Day debate on the spending of the Ministry of Justice. During the debate concerns were raised over cuts to legal aid as well as early access to a lawyer. On Tuesday and Thursday, the Counter Terrorism and Border Security Bill continued at Committee Stage. Elsewhere, the Justice Select Committee held a session on Tuesday morning on the work of the Law Commission with the Chairman and Chief Executive of the Law Commission.

On Brexit, the Minister of State for Trade Policy, George Hollingbery MP and the government’s Chief Trade Negotiation Adviser appeared before the European Scrutiny Committee on Tuesday to discuss EU Withdrawal. Yesterday, the Treasury Select Committee took evidence from the Interim Director of the Serious Fraud Office, Mark Thompson and National Crime Agency Director, Donald Toon on economic crime.

Last week, Richard Atkinson, Co-Chair of the Law Society’s Criminal Law Committee, gave evidence on the Counter Terrorism and Border Security Bill and set out our concerns around access to a lawyer and new powers to seize privileged material. Meanwhile, the Civil Liability Bill had its third reading in the House of Lords last Wednesday. During the debate, Lord Beecham noted the Law Society’s concerns, around the definition of whiplash, the tariff levels that are set, and the lack of detail on what would constitute a failure to take reasonable steps to mitigate the effect of an injury. The Bill will now pass on to the House of Commons.

This week in Parliament

Monday 02 July

House of Commons

  • Estimate Day debate - The spending of the Ministry of Justice.

House of Lords

  • Debate - Report from the European Union Committee on UK-EU relations after Brexit.

Tuesday 03 July

House of Commons

  • Counter-Terrorism and Border Security Bill Committee - Committee Stage.
  • Justice Select Committee oral evidence session on the work of the Law Commission with the Chairman and the Chief Executive of the Law Commission.
  • European Scrutiny Committee oral evidence session on EU Withdrawal with George Hollingbery MP, Minister of State for Trade Policy and Crawford Falconer, the Chief Trade Negotiation Adviser.

Wednesday 04 July

House of Commons

  • European Scrutiny Committee oral evidence session on EU Withdrawal with Michael Gove, Secretary of State for Environment, Food and Rural Affairs.
  • Treasury Select Committee oral evidence session on Economic Crime with Director Donald Toon, National Crime Agency, and Mark Thompson, Interim Director, Serious Fraud Office.

Thursday 05 July

House of Commons

  • Counter-Terrorism and Border Security Bill Committee - Committee Stage.

Last week in Parliament

Tuesday 26 June

House of Commons

Counter Terrorism and Border Security Bill: Committee Stage

Richard Atkinson, Co-Chair of the Law Society’s Criminal Law Committee gave evidence to the Public Bill Committee on the Counter Terrorism and Border Security Bill.

A transcript of the session can be found here and a summary is below.

Access to a Lawyer

  • Shadow Security Minister, Nick Thomas-Symonds MP (Labour, Torfaen) highlighted that there was no right to consult a solicitor in private in the Bill and asked if this was a concern. Mr Atkinson replied it was of great concern and risked undermining the concept of privilege. He explained that the Police and Criminal Evidence Act 1984 code H can address the concern around lawyers being used by manipulative suspects but maintain the fundamental principle of legal professional privilege. Mr Atkinson added that the Bill goes much further than code H and is a step that he feels was very detrimental to our system, and of course to our reputation.

  • The Minister for Security and Economic Crime, Ben Wallace MP, the Home Office Security Minister, queried at what point someone questioned at a UK border has a right to a lawyer. The Minister pointed out that power to hold people at the border had been held by customs officers for centuries. Mr Atkinson said in response if customs officers have formed a suspicion and are now looking to ask you questions that a lawyer should be there to provide legal advice. He added that with the current Bill, the concern was that a person has no right to remain silent, the person must answer these questions which he described as a significant act on the part of the state.

  • Ben Wallace MP asked what alternatives Mr Atkinson would offer as a way to deal with people who sometimes do not want to answer the screening questions but may have a lot of evidence on their personal devices. Mr Atkinson stated there is a need for legal safeguards for those individuals and he did not see how those prevent evidence of the type he was talking about from being obtained.

  • Shadow Immigration Minister Afzal Khan MP (Labour, Manchester Gorton) also asked if an alternative was available where the confidentiality between solicitor and client could be protected without compromising counter terrorism objectives in these cases. Mr Atkinson said obtaining legal advice would not stop the objectives of the legislation or investigation. He went on to say, if there are specific concerns about the individual adviser, they can be met in the way that the codes of practice attached to the Police and Criminal Evidence Act currently address the matter.

Powers to seize privileged material

  • Gavin Newlands MP (SNP, Paisley and Renfrewshire North) asked if, in addition to access to justice and legal professional privilege, or lack of provisions in the Bill, there were any other aspects of the Bill that were of concern. Mr Atkinson raised the issue of seizure of material and its examination, saying that there are safeguards that can be imposed, which would mean that privilege is maintained but that the objectives on an investigation are met. Mr Atkinson also stressed that LPP did not extend to agreements to carry out illegal acts. He went on to raise the concern that the three clicks provision regarding information seeking could potentially be restrictive or undermining of those with legitimate cause.

  • Ben Wallace MP came back in on oversight of retained material and asked what improvements we sought. Mr Atkinson replied that the conflation of journalistic material and legally privileged material was unfortunate, and as far has he understood the oversight process, the investigator views the material, seizes it and then seeks power to retain it, which means that the privileged material has already been viewed and the privilege breached.

Retention of data

  • Nic Dakin MP (Labour, Scunthorpe) asked to what extent did Mr Atkinson think it was necessary and proportionate to retain biometric data for individuals who are arrested for terrorist offences but not charged. In response, Mr Atkinson stated that any extension of time periods needs to be justified by objective evidence.

Wednesday 27 June

House of Lords

Civil Liability Bill third reading

The Civil Liability Bill had its third reading in the House of Lords on Wednesday and will now pass on to the House of Commons.

We briefed peers ahead of the debate, and we were mentioned once by Shadow Justice Minister, Lord Beecham. Read the full transcript of the Civil Liabilty Bill debate.

There were 6 minor amendments debated during the session.

  • Amendment 1 would have amended the proposals on the assumed rate of return on investment of damages, to remove a clause which explicitly allows a court to use a different rate where appropriate. This amendment was withdrawn.

  • Amendments 2-5 were moved by Lord Faulks (Conservative) and concern the regularity of the review of the discount rate. They extend the regularity of these reviews from three to five years, although the government will be able to conduct a review sooner if it wishes. These amendments were accepted by the government.

  • Amendment 6 would allow for the initial review of the Personal Injury Discount Rate to be initiated sooner than the legislation originally suggests. This amendment was agreed.

During the third reading of the Bill:

  • Speaking on behalf of the government, Lord Keen of Elie QC MP noted the amendments made throughout the progress of the Bill and argued that the Bill was now in a better place as a result.

  • He said that the government will bring forward an amendment which would insure that insurers are accountable for meeting their commitments to pass on savings from the reforms to the consumer.

  • Lord Beecham (Labour) noted that there are still concerns with the Bill, and noted the Law Society’s concerns, in particular around the definition of whiplash, the tariff levels that are set, and detail on what would constitute a failure to take reasonable steps to mitigate the effect of an injury.

Thursday 28 June

House of Commons

Counter Terrorism and Border Security Bill: Committee Stage

Last Thursday the Bill Committee discussed two amendments led by Nick Thomas-Symonds MP regarding expression of support for proscribed organisation and the publication of images. Both amendments were withdrawn following discussion.

Read the full transcript of the Bill Committee's discussion on the Counter Terrorism and Border Secuirty Bill.

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

Tags: Law Society | Westminster weekly update | legal aid

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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