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Westminster weekly update: Summer return and conference season begins

20 September 2018

MPs and Peers returned from summer recess for two weeks, before breaking up for the Party Conference season.


The highlights from this short parliamentary session are:

  • The Civil Liability Bill received its second reading in the House of Commons. It was then considered at Committee stage where the government voted down a number of opposition amendments. Throughout the two sessions, the Law Society was mentioned 5 times, with MPs mirroring arguments raised in our parliamentary briefing on the Bill on the definition of whiplash, the tariff system, inequality of arms between claimants and insurers, and access to justice for injured victims.

  • A Westminster Hall debate on the post-implementation review of LASPO also took place. The Law Society was mentioned 5 times during the debate on our concerns on lack of access to early advice and the viability of the criminal legal aid system.

  • In the House of Lords the Mental Capacity (Amendment) Bill was considered at Committee Stage. Baroness Barker commented positively on the Law Society's briefing for the debate which raised concerns about the lack of safeguards in the Bill.

  • The Counter-Terrorism and Border Security Bill also went through Report Stage and third reading in the House of Commons. Gavin Newlands MP (SNP, Paisley and Renfrewshire North) referenced the oral evidence provided by Richard Atkinson of the Law Society at Committee Stage on legal professional privilege and early access to a lawyer. Read the press coverage of our main arguments.

  • The government published the second batch of the Brexit 'no deal' technical notices including the impact of no deal on civil legal cases, competition, data protection and travelling in the EU. The full list of technical notices can be found here and we expect a third batch of notices later this month. The President, Christina Blacklaws, said in relation to civil judicial cooperation: 'people and businesses will continue to operate cross-border – so when we leave the EU we need an infrastructure which allows people to gain speedy and effective access to justice needs to be maintained.'

The political party conference season is now underway. The Law Society will be attending the Conservative, Labour and Liberal Democrat political party conferences this autumn as part of its influencing work on behalf of members.

We will be hosting events and meetings with senior stakeholders from all three parties in Birmingham, Liverpool and Brighton.

Find out more about our events and how you can come along (PDF 51kb)

We will be discussing the following priorities with stakeholders at the party conferences:

  • maintaining the attractiveness of the legal jurisdiction after Brexit;
  • making the legal system available to all;
  • ensuring the UK leads the way on new technology.

More detail about our policy recommendations can be found here (PDF 662kb).

This week in Parliament

  • The House of Commons is in recess for the political party conferences. The House will next sit on Tuesday 9 October 2018.
  • You can find out more about our programme at the party conferences and our key policy recommendations here.

Last two weeks in Parliament

Tuesday 4 September

House of Commons

Civil Liability Bill - second reading

The Civil Liability Bill received its second reading in the House of Commons. The Bill consists of two parts:

  1. Reducing fraudulent whiplash claims which contribute to higher insurance premiums.
  2. Creating a new method for setting the personal injury discount rate.

Related regulations to increase the small personal injury claims limit are not included on the face of the bill but will be introduced separately by a statutory instrument through the affirmative procedure.

The Law Society was mentioned by three MPs, noting our arguments on the need to target fraudsters and not the vast majority of honest claimants, the reforms would create an inequality of arms between claimants and insurers and its impact on access to justice.

The Lord Chancellor, the Rt Hon David Gauke MP set out the government's case:

  • Responding to concerns that insurers might not pass on savings to consumers, he stated:
    • The MoJ had received assurance from insurers covering 85% of policies that savings would be passed on;
    • The government will table amendments to hold insurance companies to account, including introducing a means for reporting on both the savings made and how they are passed on;
    • The competitiveness of the insurance market means that savings will likely be passed on.
     
  • The proposed measures on whiplash claims could result in savings of around £1.1 billion a year.
  • The government will table an amendment at committee stage that will require the Lord Chancellor to consult with the Lord Chief Justice before making regulations on setting the tariff for small claims.
  • Overall compensation levels in the tariff will be reviewed at least every three years.
  • The government intends to remove vulnerable road users, such as cyclists, from the small claims limit changes.
  • The implementation of the bill will be pushed back by a year to April 2020.

Responding, the Shadow Lord Chancellor Richard Burgon MP stated:

  • This set of reforms would undermine people's basic rights.
  • The increase in the small claims limit would see tens of thousands of working people priced out of obtaining legal assistance as more claims are dealt with through the small claims track (which does not allow legal cost recovery).
  • Proven fraudulent whiplash claims amount to only 0.25% of all claims.
  • The exclusion of vulnerable road users from the changes is welcome, but the inclusion of people injured at work remains unjustifiable.
  • The proposed new levels of compensation under the tariff system are significantly lower than current average compensation payments.
  • As the tariff levels will be set by the Lord Chancellor there is a risk that this may become a political football or be vulnerable to the insurance lobby.
  • The Labour Party will propose amendments to delete the power for the Lord Chancellor to set the tariff.
  • Tariffs should be determined by the Judicial College and not by political actors.
  • The definition of whiplash should also be set by medical experts, not by the Lord Chancellor.

A number of points were raised during the debate:

Access to justice

  • A number of MPs highlighted concerns around the implications for access to justice, including Debbie Abrahams and Jo Stevens.
  • Ellie Reeves MP (Lewisham West and Penge, Lab) said that it is predicted that about 350,000 people could be deterred from pursuing claims for injuries that were not their fault.

Unequal treatment in law

  • MPs highlighted how the proposals would lead to different levels of compensation for the same injury, depending on whether the injury was sustained in a road traffic accident or not.
  • It was also highlighted how the reforms would only affect England and Wales, meaning that someone suffering an injury in Scotland would receive greater compensation than someone suffering the same injury in England and Wales.

Claims management companies

  • Claims management companies were mentioned regularly, with MPs arguing that more should be done to tackle the proliferation of CMCs cold-calling and driving up claims.

Mentions of the Law Society

The Law Society was mentioned three times:

  • Debbie Abrahams MP (Oldham East and Saddleworth, Lab) referenced the Law Society's verdict that tackling fraudulent claims should target fraudsters and not the vast majority of honest claimants;
  • Gareth Thomas MP (Harrow West, Lab Co-op) noted the assessment of the Law Society and all trade unions that the reforms would create an inequality of arms between claimants and insurers;
  • Jo Stevens MP (Cardiff Central, Lab) highlighted her concerns around the bill's impact on access to justice, and noted that those concerns were shared by the Justice Committee, the Law Society, and Solicitors across England and Wales.

Mentions of lawyers

  • Dr David Drew MP (Stroud, Lab Co-op) noted that it would be important to monitor the impact of the reforms on personal injury lawyers, stating that it is already difficult to get lawyers to stay in that field.
  • A number of MPs cited statistics highlighting that a large proportion of the costs borne by insurers in small claims were the result of lawyers' fees. MPs including Vicky Ford and Chris Philp put this as an issue to be addressed. Craig Tracey MP (North Warwickshire, Con) noted (positively) that the savings for insurers through the bill would be achieved by cutting out this 'very expensive middleman'.
  • Chris Philp MP (Croydon South, Con) highlighted polling that suggested that 58% of the public believe that personal injury lawyers and CMCs were responsible for creating a 'compensation culture'.
  • Andy Slaughter MP (Hammersmith, Lab) commented that the reforms are 'deprofessionalising the justice system', as people would no longer be able to receive legal representation for complex legal matters and serious injuries. He noted that the judicial arm was also being removed from the process through the introduction of the tariff.

Westminster Hall Debate - Legal Aid: Post-Implementation Review

A Westminster Hall debate took place on the LASPO review, which was tabled by Karen Buck MP.

During the debate:

  • Karen Buck MP referenced our briefing: 'Solutions were also set out in excellent briefings for the debate from the Legal Aid Practitioners Group—I particularly praise the work of the extraordinary Carol Storer, who has been in charge of the LAPG for the past decade, and her team - the Equality and Human Rights Commission, to which I will make particular reference, the Law Society, Mind, the Families Together coalition, the Children's Society, the Coram Children's Legal Centre and many others.'

  • Karen Buck MP also raised concerns regarding the transparency of the review process, saying: 'No minutes have been published of the meetings that have been held. We understand that no independent research has been commissioned either. Will the Minister confirm whether that is the case? Will she also confirm that the report will definitely be published by the end of the year? How long does she estimate it will take the government to respond? Critically, what will happen next? Will the review be affected in any way by Brexit? How long will the response take? What steps will be put in place to safeguard the current situation and prevent more providers from closing before there is an opportunity for recommendations arising out of the review to be implemented?'

  • Responding for the government, on transparency, the Minister Lucy Frazer MP said that: 'The hon. Member for Westminster North suggested that there was a lack of transparency, which I hope is not the case. I have mentioned the large number of third parties with whom we are engaging and having extremely transparent discussions. In July, we published an update on gov.uk about the progress of the review, which included the agendas of the consultation groups.'

  • The Minister also mentioned the Law Society, and AGFS: 'The hon. Lady mentioned solicitors more broadly and the recent Law Society study. There is a further study in relation to the age of the profession, which I have looked at with interest. I am meeting the Law Society this month to discuss that and several other matters. In relation to barristers, we recently launched our consultation on the advocates' graduated fee scheme, with a commitment to put a further £15 million into criminal advocacy.'

House of Lords

Exiting the European Union Committee - Oral Evidence Session

Philip Rycroft, the Department for Exiting the European Union (DExEU) Permanent Secretary appeared before the Exiting the European Union Select Committee as part of their ongoing inquiry into the progress of the UK's negotiations on EU withdrawal.

A summary of the key points is below:

  • 'No deal' planning: Committee Chair and Labour MP Hilary Benn opened the session about the planning being conducted for 'no deal', and potential delays in particular. Mr Rycroft said that there were 300 workstreams across Whitehall regarding 'no deal', including some working on maintaining fluid border points.
    • Conservative MP Peter Bone asked about the likelihood of a 'no deal' scenario, and when a decision on whether this was going to happen would have to be made. Replying, Mr Rycroft restated the government position that 'no deal' had to be prepared for but was not the aim. He went on to say that ministers were considering timescales as part of their departments' 'no deal' planning.

    • Conservative MP Stephen Crabb asked whether a 'different phase' of negotiations with the European Commission would begin in the event of 'no deal' looking the most likely outcome. Responding, Mr Rycroft said it was 'difficult to predict' the precise format that 'no deal' discussions would take, but stressed the importance of dealing with the challenges of this outcome for both the UK and EU, and all stakeholders. Mr Rycroft reiterated that it would be mutually beneficial to mitigate any risks, when Mr Crabb noted Michel Barnier's warning that talks would come to a halt if the UK chose to leave without a deal.

    • Labour MP Stephen Kinnock asked whether sector-by-sector analysis of 'no deal' had been conducted. Replying, Mr Rycroft said that analysis was conducted at different levels with varying degrees of detail, some of which cut across the economy and some of which was more particularly relevant to individual sectors.
     
  • Departmental responsibilities: Responding to the Chair's question on who made up the EU Exit Inter-Ministerial Group, the witness said that the Secretary of State led the Group and that the Treasury and Cabinet Office, for example, were represented. Pushed for more details, Mr Rycroft said that the Group could call ministers before it to question them on their Brexit work.
    • Conservative MP John Whittingdale asked why responsibilities had been moved from DExEU to the Cabinet Office. In reply, Mr Rycroft stated that the 'modest changes' made were appropriate for the stage of negotiations at present, and pointed to the fact that Brexit Secretary Dominic Raab MP was meeting Michel Barnier regularly in his role as primary interlocutor with the EU. He added that DExEU continued to have a substantial presence in Brussels at the negotiating table, and remained responsible for preparing for the talks on the future framework for UK-EU relations post-Brexit.
     
  • Parliamentary vote: Asked by Kinnock how DExEU would respond to votes in parliament on the state of Brexit negotiations, Mr Rycroft explained that this would require a cross-Whitehall response, with his Department coordinating efforts and helping the government to present satisfactory bills to parliament. 'Appropriate analysis' would be made available to parliament for MPs to cast an educated vote, he said in response to a follow up question.

  • Brexit timeline: Mr Rycroft expressed confidence that the Civil Service was prepared for Brexit on 29 March 2019, when questioned by Jenkyns. Then asked a follow up question on the length of the transition period, the witness said he was not aware of any discussions about its extension.

  • Economic analysis: Conservative MP Craig Mackinlay expressed concern about a lack of consensus between the analysis being done by DExEU, the Treasury, and other departments, and a lack of trust in the predictions of the former. In response, Mr Rycroft made clear that the analysis being done by his Department was economic modelling of different scenarios, but not a forecast and 'not deterministic'.
    • Labour MP Stephen Timms pressed further on the economic analysis that had been done on the potential impact of a 'no deal' scenario. Replying, Mr Rycroft said that the analysis the Civil Service held evolved on an ongoing basis.

    • Then asked a follow up question on the correlation between trade barriers between the UK and the EU and economic impact, Mr Rycroft confirmed that this had been the conclusion of the work published in January. The witness confirmed, when asked by Mr Whittingdale, that the Civil Service had conducted a country-by-country analysis on the effect of 'no deal' on the EU27.
     
  • International relations: Conservative MP Jeremy Lefroy asked about the work that had been done to strengthen bilateral representation with the EU27 and EEA countries. Mr Rycroft noted that the primary responsibility for this work lay with the Foreign and Commonwealth Office. He continued by expressing concern about the role of the UK Permanent Representation to the EU (UKREP), which he said would have to evolve in its form and scope.
    • When Lefroy then asked about the loss of general, ongoing, institutional contact with the EU on matters of European and other affairs, Mr Rycroft acknowledged that leaving the EU would have an impact. It was important that discussions of the future UK-EU partnership included how interaction with the European institutions could best be organised.
     

Wednesday 5 September

House of Commons

Tenant Fees Bill

The Tenant Fees Bill passed through report stage and third reading in the House of Commons on 5 September. The government proposed a number of amendments that were accepted with the support of the opposition, while two Labour amendments were rejected on division. The amended bill was agreed and will now pass to the House of Lords.

The Bill's aim is to reduce costs for tenants by banning letting fees paid by tenants in the private rented sector and capping tenancy deposits in England.

Rishi Sunak MP, Minister for Local Government, set out the government's amendments, including amendments to:

  • Ensure that landlords and agents cannot charge fees to the tenant in the event of default;

  • Introduce a provision to specify that any fees charged must be reasonable in respect of the works undertaken, rather than simply tied to actual loss or costs incurred;

  • Ensure that tenants are free to contract the services of a relocation or similar agent should they wish to do so, provided that the agent does not also act on behalf of the landlord with whom the tenancy is being agreed;

  • Ensure that if a payment, such as a default charge, is required under a tenancy agreement that was entered into before the ban comes into force, that payment will be prohibited where it is paid to an agent after a period of 12 months;

  • Ensure that if a landlord or agent charges the tenant an unlawful payment, the landlord or agent must repay it within seven to 14 days of the making of an order by the enforcement authority or the first-tier tribunal;

  • Place a requirement on landlords and agents to seek consent if they wish to offset such a fee against a tenancy deposit or rent payment or to offset the holding deposit from the tenancy deposit or a future rent payment.

Enforcement:

  • The Minister stated that the simplicity of a ban on tenant fees would mean that 'tenants' ability to self-enforce will be greatly enhanced'. He also stated that the government will provide £500,000 in the first year after the Bill is enacted to fund enforcement, which would subsequently be funded through the fines levied under the provisions in the Bill.

  • Several members nonetheless expressed concern that this would not be sufficient to ensure enforcement of the provisions.

Melanie Onn MP, Shadow Minister for Housing, responded on behalf of the opposition:

  • Although she welcomed the government's amendments, she expressed disappointment at the government's refusal to accept Labour amendments.

  • These amendments were:
    • Amendments 1 and 2, which would allow councils to apply fines of up to £30,000, rather than £5,000;
    • Amendment 3, which would provide a clear list of acceptable payments that cover a loss to the landlord, allow for fees to be charged only when there was a clear and indisputable cost, and prevent the use of tenancy agreements as a device through which to include additional charges.
     
  • In response to concerns regarding the need to protect landlords and letting agents as well as tenants, she stated that the balance to date has been too far in favour of a private rented sector.

House of Lords

Mental Capacity (Amendment) Bill

The Mental Capacity (Amendment) Bill was debated at Committee Stage in the House of Lords on 5 September.

This Bill seeks to amend the Mental Capacity Act 2005 (MCA) in relation to procedures in accordance with which a person may be deprived of liberty where the person lacks capacity to consent, and for connected purposes.

During the session, Clause 1 and Schedule 1 of the Bill were discussed at length. No amendments were made.

The Law Society briefed peers ahead of the session and were mentioned twice. Below is a brief summary of some of the key points:

  • Shadow Health and Social Care Spokesperson Lord Hunt of Kings Heath expressed general support for the intent of the Bill, but expressed concern about the government's decision to deviate from the Law Commission's proposals regarding the role of care home managers.

  • Health Minister Lord O'Shaughnessy noted that the proposed model had been developed with the Law Commission.

  • Crossbench peer Baroness Finlay of Llandaff moved amendment 1, which sought to adjust the balance of the relationship between the Bill under discussion and the Mental Capacity Act. 'The presumption of capacity is being overturned' as the Bill stands, she cautioned.

  • Responding, Lord O'Shaughnessy stressed that the government wished to 'enhance the role and agency of those deprived of their liberty and those with an interest in the care and welfare of that cared-for person', and contended that there was no planned change to the present position on capacity.

  • Baroness Barker, addressing Part 2 of Schedule of the Bill on 'Authorisation of arrangements' said: 'In putting down these probing amendments, I was particularly taken by the briefing given to us by the Law Society, which suggested:
    'Remove the distinction between the 'arrangements' and 'care and treatment' as it will result in difficulties when applied in practice. For example, how would a person's capacity to make medical treatment decisions or decisions about contact with others be distinguished from decisions about the 'arrangements' to provide that treatment or to prevent contact with others?'.
     
  • A number of technical amendments to Schedule 1 were moved, but subsequently withdrawn.

The Bill will continue to be debated at Committee Stage in the House of Lords on 15 October 2018.

Lords EU Select Committee – Oral Evidence Session

The Secretary of State for Exiting the European Union Dominic Raab MP gave evidence to the Lords EU Select Committee on Wednesday 5 September on the progress of Brexit negotiations. The session transcript is available here.

A summary of the main points is below:

  • Dispute resolution: In response to questions about the consequences of UK divergence from the EU rule book, Raab stressed this would trigger the need for a dispute resolution measure. He warned that dispute resolution measures were areas remaining to be negotiated in the Withdrawal Agreement.
    • Raab highlighted dispute resolution as a remaining outstanding issue, alongside criminal judicial co-operation, data sharing and policing. For all of these outstanding issues, he argued that 'the contours of the resolution are all there; the principles are broadly agreed, we just need some of the technical detail to get it over the line'.

    • When discussing the consequences of divergence from the proposed 'common rulebook', he stated: 'You need to have consultative mechanisms through the governance arrangements which incorporate all the dispute resolution considerations, making sure that there is some engagement beforehand. We are trying to make sure that we have a mechanism in place to iron out any of the easy creases and to depoliticise and resolve amiably, in order to preserve the future relationship, any of the more significant issues. That is the big choice that we have impressed on the EU, and I am reasonably confident that we will deliver on it. Arbitration rather than the lopsided ECJ jurisdiction ought to be the model for governing disputes. We will need to be mindful of the EU principles that inform that interpretation. We will want clear and consistent interpretation on both sides. However, I think that the arbitration mechanism is incredibly important for making sure that we have a fair and not a lopsided way of resolving disputes, precisely because both sides will want to manage our future relationship and not just deal with ad hoc tensions as they arise.'

    • On the co-ordination of financial services regulation and future regulatory partnerships, Raab stated: 'Without giving away too much more of the detail beyond the White Paper, what we clearly need are mechanisms and arrangements between the two sides to be able to discuss proposed changes before they hit the statute book on either side—I suspect that prevention is better than cure in the vast majority of cases. When changes are made that create particular, specific problems, we need a mechanism in the governance arrangements to handle them sensitively, to resolve the particular dispute but to try to depoliticise it so that it does not upend the broad relationship. We do not want a situation where it has a more tectonic impact on the relationship, given how broad and far-reaching it will be. The challenge that we are both engaged in is to come up with enough detailed and sensitive institutional arrangements to make sure that we can resolve disputes and preserve the relationship. Arbitration is obviously the ultimate model for achieving that, but we probably want a process of dialogue well before then.'
     
  • No deal: Questions over what will happen if Chequers does not work and how the UK might move to a Canada ++ scenario to avoid no deal saw Raab reluctant to comment on any 'plan B', simply stating that a deal is 'within sights'.
    • Responding to a question from Lord Teverson, the Brexit Secretary said he believed the publication of the technical notices over the coming weeks were designed to show the public that the UK government could mitigate against the impact of a no deal Brexit.

    • Raab added there were a number of possible trigger points for a no deal Brexit, stressing the UK was not being cavalier about the possibility of reaching an agreement. He also confirmed that there would be two further tranches of technical notices to be published.
     
  • Financial services: Raab stated that the UK has agreed a Financial Settlement as set out in Withdrawal Agreement, and that the UK is looking to build on the EU equivalence regime to protect businesses and suppliers.
    • Raab said that concerns about the risks of Brexit to the financial services sector were often overblown given its importance to the EU's economy.

    • Crossbench peer Lord Crisp asked how the UK government would coordinate the granting of enhanced equivalence to ensure market stability. In reply, Raab said it was better to have mechanisms to discuss any new measures before they hit the statute books. He wanted to see institutional relationships created that could preserve market stability and minimise the need for arbitration.
     
  • Future trade agreement: Baroness Neville-Rolfe asked how the UK could move to another future relationship model if the Chequers Agreement did not work out. Raab said the UK government was focused on delivering the model outlined in the White Paper.

  • White Paper: Crossbench peer The Earl of Kinnoull asked if the White Paper could offer new solutions for the UK-EU relationship. Raab said there was a recognition on the EU side that the White Paper represented a pragmatic and compromising approach from the UK. He added that the proposals were getting a reasonably positive landing among the EU27.

  • UK membership of EU agencies: In response to a question from Lord Teverson on compliance to rules set by EU agencies, Raab said that there is some precedent for third party membership of agencies, and UK membership is being negotiated.

Thursday 6 September

House of Commons

Attorney General oral questions

The Attorney General faced Oral Questions in parliament on 6 September. Below is a summary of the questions of most relevance.

What recent assessment he has made of the adequacy of the performance of the SFO (Barry Sheerman MP)

  • Serious fraud losses are estimated at over £190 billion a year.

  • £650 million of financial penalties have been recovered by deferred prosecution agreements over the past four financial years.

  • In the past five financial years, 25 out of 30 of the SFO's prosecutions resulted in convictions, which is a rate of 83%.

  • Barry Sheerman raised the concern that the SFO is under-resourced, but the Attorney General did not agree with his assessment.

What discussions he has had with the Secretary of State for Justice on recent changes to criminal legal aid (Alan Brown MP)

  • The Attorney General stated that legal aid policy does not lie within his ministerial responsibilities, but that he has met the Secretary of State already and will do so regularly to discuss matters of common interest.

  • He said that he was pleased that the Ministry of Justice continues to make provision of £1.6 billion a year in legal aid, and that it has recently allocated an additional £15 million to the advocates' graduated fee scheme for Crown court representation.

  • Alan Brown asked the Attorney General whether he would discuss with the Justice Secretary undertaking a review of legal aid, to which the Attorney General responded that the MoJ is currently reviewing LASPO and will publish its report later this year.

  • The Legal Aid Agency maintains a watch on the numbers of criminal legal aid solicitors, and the AG stated that the number of offices and solicitors' firms to which franchises have been granted has increased.

What support he is providing to the CPS to tackle economic crime (Sir Henry Bellingham MP and Nigel Mills MP)

  • The government is introducing a programme of reforms to bring forward shortly, in particular, the National Economic Crime Centre.

  • The government and the law enforcement agencies are looking at the correct and appropriate cases in which to use unexplained wealth orders, though the AG was not aware of whether there has yet been any estimate of what might be realised by their use.

  • Deferred agreements have realised £650 million in penalties.

What steps the CPS is taking (a) domestically and (b) internationally to increase the effectiveness of prosecutions for modern slavery (Kerry McCarthy); What recent discussions he has had with the CPS on the effectiveness of prosecutions in cases involving modern slavery (John Lamont MP)

  • The Crown Prosecution Service has recently announced an increase in prosecutions for modern slavery, and the Solicitor General will meet the DPP further to discuss how that good work can continue.

  • Quarterly meetings are held at official level between the jurisdictions of England and Wales, Northern Ireland and Scotland, and there is a regular exchange of information and best practice to provide a whole-of-UK approach to human trafficking and slavery.

  • The government is currently working with 25 Europe-based inquiries on trafficking, and it has 30 prosecutors in other countries who focus on this type of work.

Tuesday 11 September

House of Commons

Counter-Terrorism and Border Security Bill

The Counter-Terrorism and Border Security Bill had its Report Stage and Third Reading in the House of Commons on 11 September. The Law Society briefed parliamentarians on its concerns with the Bill, particularly regarding clauses that would compromise Legal Professional Privilege. The key points of the debate were:

Legal professional privilege (LPP)

  • A number of MPs raised concerns about the impact the Bill would have on LPP.
  • Nick Thomas-Symonds (Shadow Minister for Security) stated that, while the power in the Bill for an officer to watch someone receiving legal advice was not problematic, the power for the officer to listen in to the legal advice does raise a serious issue.

  • He outlined the three concerns that the government had which led to them proposing this power for an officer to hear legal advice:
    • That a person might contact someone they wanted to notify of the fact that they had been stopped rather than a lawyer;
    • That they might notify a lawyer who would not adhere to the professional standards that we would expect, and who might pass some information on;
    • And that a lawyer might inadvertently pass on a piece of information.
     
  • He proposed a solution for these concerns, by which a detained person is given access to a panel of lawyers, properly regulated by the Solicitors Regulation Authority and the Law Society, just as we currently have a duty solicitor scheme in police stations.

  • Gavin Newlands MP (Paisley and Renfrewshire North, SNP) stated that the Bill would restrict detainees' right to speak in private with a legal representative.

  • He referenced the oral evidence given by Richard Atkinson of the Law Society, who suggested that the proposal risked the excellent reputation across the world of UK justice systems.

  • He also noted that, in cases where there are concerns about a given solicitor, Code H of the Police and Criminal Evidence Act 1984 provides for the suspect's consultation with the lawyer to be delayed, as long as another lawyer is offered in the meantime.

  • Ben Wallace MP (Minister for Security) recognised the issue regarding the potential overhearing of a legal consultation, and stated that for this reason whatever is said and overheard would not be admissible in court.

  • He also indicated he would be willing to consider Nick Thomas-Symonds MP' proposal for providing a panel of approved lawyers to a detainee.

  • Two amendments, Amendment 31 and Amendment 14, sought to address this issue by amending or removing the paragraph relating to the power for an officer to listen in to a consultation between a detainee and their lawyer. Neither of these amendments were called for a vote.

Obtaining and viewing terrorist material

  • The government tabled amendments to remove the 'three click' rule, by which accessing terrorist content on the internet three or more times would become a criminal offence, from the face of the Bill.

  • Nick Thomas-Symonds MP welcomed this amendment, stating that amplifying the reasonable excuse defence instead would help ensure that legitimate research or journalism is not penalised.

  • However, Gavin Newlands MP and Ed Davey MP (Kingston and Surbiton, LD) raised concerns that the new proposals amounted to a 'one click' rule, which risked criminalising more people.

  • The amendments were made without a division.

The Bill was passed at Third Reading, and will have its Second Reading in the House of Lords on 9 October. The Law Society will seek to engage with relevant Peers to draw attention to our concerns around Legal Professional Privilege and support amendments to the Bill reflecting these concerns.

Civil Liability Bill

The Civil Liability Bill has completed its Commons Committee Stage. The Committee ran through all tabled amendments during its first two sittings on Tuesday. Progress of each amendment is detailed in the table below.

The Law Society were mentioned two times during the debate (in the context of an amendment which would require that the government consult with us on the definition of whiplash and our engagement with government on tariffs) and our arguments were used during debate on amendments we were supportive of.

A new version of the Bill has been produced including the amendments made at Committee Stage.

During the debate:

  • Shadow Minister for Justice Gloria de Piero MP accused the government of side-lining doctors and judges.

  • The Minister, Rory Stewart MP, confirmed that vulnerable road users will be excluded from the Bill and from secondary measures on the small claims court limit.

  • Craig Tracey MP (Conservative) argued against the proposal to exclude those who sustain a whiplash injury in the course of their employment by arguing that they should not recover a different sum to anybody else. He said that they will still be able to claim for loss of earnings. The Minister, Rory Stewart MP, agreed and said the issue at hand is that the injury has occurred, and not why the individual was in the car.

  • Bambos Charalambous MP (Labour) raised concerns that children are not regarded as vulnerable road users and would need to go to court and have infant settlements made in their name. The Minister, Rory Stewart MP pledged to return to this issue at Report Stage.

  • Ruth George MP (Labour) argued that the proposed tariffs take no account of a victim's circumstances, and Ellie Reeves MP (Labour) argued that the increase in the small claims limit and the introduction of a tariff system is punitive and arbitrary.

  • The Minister, Rory Stewart MP clarified that legislation purely relates to general damages in cases of whiplash, which cover pain and loss of amenity. All the examples that were given, such as loss of earnings or being unable to perform a particular job because of whiplash, would be covered by special damages and are not affected by the legislation.

  • The Minister, Rory Stewart MP confirmed in response to Bambos Charalambous MP that the government will bring forward an amendment to consult the Lord Chief Justice on the level of tariffs as well as on the percentage for uplift.

  • The Minister, Rory Stewart MP said that the government support the basic principles behind amendments relating to MedCo but said that they would not put it on the face of the Bill in the eventuality that in the future an entity other than MedCo might exist.

  • Ellie Reeves MP (Labour) argued that the personal injury discount rate should be set by an expert panel rather than the Lord Chancellor.

  • The Minister, Rory Stewart MP said that the government had received advise from the government Actuary's Department on what the personal injury discount rate should be, and said he would publish their report.

The Bill will now proceed to Report Stage in the House of Commons. No date has been announced, but subject to Brexit legislation and available parliamentary time, could be debated in late October.

Thursday 13 September

Government

'No deal' technical notices

The government released second batch of technical notices to prepare for a no deal. These plans would be triggered if neither the Withdrawal Agreement, which contains the transitional arrangements, or a future relationship are agreed in March 2019.

In the second batch of notices, the most relevant notices were:

The full list of notices can be found here. A summary of the paper on handling civil legal cases can be found below.

  • Civil and commercial judicial cooperation: If the UK continued to apply the rules unilaterally after exit, the UK's status as a third country would mean that EU countries would not consider the UK to be covered by these rules. UK citizens, businesses and families would therefore not benefit from these rules.

    Brussels Ia, Lugano and other rules would be repealed. The UK could apply to re-join Lugano in its own right in future. In these areas the UK would revert to the existing domestic common law and statutory rules, which currently apply in cross border cases concerning the rest of the world, to govern our relationship with the remaining EU countries (and Iceland, Norway and Switzerland).

    All affected stakeholders would have to determine how jurisdiction in cross-border disputes should be established and whether any judgments should be recognised and enforced. In some cases, the interaction between these rules may be unclear and certain countries may not recognise judgments from UK courts. Businesses and individuals may wish to take legal advice about the impact on their individual circumstances.

    The UK would retain Rome I and Rome II rules on applicable law in contractual and non-contractual matters (which generally don't rely on reciprocity). This would ensure businesses and individuals could generally continue to use the same rules as at present to determine which law would apply in cross-border disputes.

    The UK will proceed to join the Hague Conventions 2007 and 2005 and aim for these to be in force by 1 April 2019 (through Statutory Instruments laid and dealt with by the Sifting Committee in parliament).

  • Cross-border insolvency cooperation: Most insolvency regulations would be repealed, but the UK would retain EU rules that provide for the UK courts to have jurisdiction where a company or individual is based in the UK, and the law will ensure that insolvency proceedings can continue to be opened in those circumstances.

    UK insolvency practitioners would to apply under an EU country's domestic law to have UK orders recognised there. In certain circumstances, some EU countries may not recognise UK insolvency proceedings. EU insolvency proceedings and judgments would no longer be recognisable in the UK under the EU Insolvency Regulation, but may be recognised under other international rules which already forms part of the UK's domestic rules on recognising foreign insolvencies.

  • Family law cooperation: Where the UK is a contracting party in its own right to several Hague Conventions on family law, which cover many of the same areas as the Brussels IIa and Maintenance Regulations, the UK would repeal the existing EU rules and switch to the relevant Hague Conventions. The relevant rules covered by the Hague Conventions are:
    • parental responsibility matters, including jurisdiction, recognition and enforcement
    • rules for the return of abducted or wrongfully retained children
    • maintenance recognition and enforcement
    • central authority cooperation.

    The UK would also continue to use Hague Convention rules on divorce recognition, (implemented by provisions in the Family Law Act 1986).

    In child abduction cases, participation in the 1980 Hague Convention means that most of the measures the UK currently operate with EU countries would not change. Child abduction override provisions contained within Brussels IIa will be repealed.

    The UK would seek to formally re-join the 2007 Hague Maintenance Convention (in which it participates because of our EU membership), and seek for it to come into force by 1 April 2019.

  • Family law cooperation without corresponding Hague Conventions: Some areas of family cooperation have no relevant Hague Conventions to fall back on. In most of these cases, the UK would repeal the EU rules and proceed to:
    • Repeal the Brussels IIa rules in England, Wales and Northern Ireland, and replicate the different bases for divorce jurisdiction into domestic law so that they apply for these three countries.
    • The EU 'lis pendens' rules would be repealed across the UK
    • These changes would be replicated for same sex marriages and civil partners where applicable in the UK
    • For decisions broadly relating to the jurisdiction for maintenance cases, the UK will broadly adopt to adopt the position prior to the introduction of the Maintenance Regulation and other EU rules
     
  • EU instruments covering both civil and family matters: The UK would repeal the EU Service Regulation and the Taking of Evidence Regulation, but apply the relevant Hague Conventions in this area. The UK would also repeal legislation implementing the Mediation Directive and the Legal Aid Directive.

  • The effect on ongoing civil and family cases: Broadly, cases ongoing on exit day will continue to proceed under the current rules. However, it cannot be guaranteed that EU courts will follow the same principle, nor that EU courts will accept or recognise any judgments stemming from these cases. Individuals are encouraged to seek legal advice.

House of Commons

Women and Equalities Oral Questions

Below is a summary of the most relevant points from the Women and Equalities Questions that took place in the House of Commons on 13 September.

What assessment she has made of the effectiveness of the reporting process on the gender pay gap (Jo Swinson MP)

  • Responding, the Minister for Women, Victoria Atkins, noted that 100% of employers identified as in scope have reported in the first year.

  • Reporting is just the first step – employers must also take action to close the gap and the government is supporting them in doing that.

  • In response to the question of whether the government would consult on extending pay transparency and reporting to address pay gaps for BAME people, people with disabilities and those from working class backgrounds, the Minister would not confirm. She however stated that the hope was that the current reporting would open up a conversation about fairness in all areas of the workforce.

  • The Minister stated that the government is keen to ensure that employers publish their action plans as part of gender pay gap reporting.

  • The government are meeting business leaders with the aim of trickling down best practice from the largest employers, who have the most resources, to smaller employers.

What steps she is taking to promote LGBT equality in the UK (Dr Caroline Johnson MP)

  • In July, the government launched the Gender Recognition Act 2004 consultation and a 75-point LGBT action plan in response to the findings of the national LGBT survey. The action plan includes a £4.5 million fund to support delivery of commitments.

  • The Minister would not confirm whether the government would be looking into extending civil partnerships to heterosexual couples.

What steps she is taking with Cabinet colleagues to promote employment opportunities for (a) men and (b) women in sectors in which they are proportionally under-represented (Philip Hollobone)

  • Where women are under-represented in sectors of the economy, the government are actively supporting business-led reviews to increase participation and the representation of women.

If she will make a statement on her departmental responsibilities (Jessica Morden)

  • The government is investing £3.1 million in research on gender equality in the workplace over the next two years. That includes £2 million in the gender and behavioural insights programme, to help understand what works to change employers' behaviour and improve gender equality in the workplace.

  • In June, the government launched the workplace and gender equality research programme – a two-year programme that will invest more than £1 million in new research and deliver evidence-based tools for employers on what works to close their gender pay gaps.

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

Tags: Westminster weekly update | Brexit | criminal 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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