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Issues around the EU Referendum Bill

11 December 2015

Richard Messingham discusses the government's problems around the EU Referendum Bill, and also provides a summary of the activity on International Human Rights Day.

Following a phone call with German chancellor Angela Merkel last week, the prime minister admitted that he would no longer be able to have a deal on renegotiations by Christmas, setting his target now as February. This would mean the earliest date for the referendum will now be July 2016.

Not deterred, the prime minister continued his quest for EU allies for his renegotiation, this time in Poland. While the Polish prime minister said there is a "very big openness to talks", they expressed "doubts" on the UK's call for EU citizens to be locked out of the benefit system for four years. Along with president of the European Council Donald Tusk's comments that all EU countries were against Cameron's plans to stop EU migrants claiming benefits in the UK for four years, it seems Cameron's hope of a referendum by the summer are dwindling.

Meanwhile at home the EU Referendum Bill, now at ping pong stage, is also causing the government problems. Labour and Liberal Democrat peers joined forces to introduce an amendment to allow the 16-17 year olds to vote despite the Commons having already rejected a similar amendment. This move has caused some MPs to suggest that the upper chamber is once again overreaching after their rejection of tax credits changes in October.

Senior Conservatives are said to be concerned about their lack of majority in the House of Lords and have become discontented with peers increasingly defeating the government. It is thought that the prime minister is putting together plans to "neuter" the House of Lords by removing their veto on secondary legislation and increasing the use of orders and regulations. With the Labour Party somewhat distracted by in-fighting and the Lords being potentially reduced to a scrutiny body, the government may find itself able to push forward a larger and perhaps more controversial agenda than even they expected.

Monday 7 December

Motion to Consider - Lord Bates - interception: codes of practice

Home Office minister Lord Bates moved two motions: Equipment Interference (Code of Practice) Order 2015 and Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2015. Both motions were agreed.

The new codes of practice give more detail on the "robust" internal arrangements by the law enforcement and intelligence agencies, overseen by the Interception of Communications Commissioners rather than onferring new powers. It was noted these are practices that are currently in use but the revision of the code brings them into the public domain.

It provides details of the safeguards that exist for the interception and handling of external communications under s8(4) of RIPA for bulk interception. It also contains further information on the protections afforded to legally privileged material and other confidential material including outlining that the secretary of state has to consider the likelihood that privileged material will be intercepted when determining whether it is necessary and proportionate to give a warrant.

The update also requires that there are additional internal safeguards to be applied in cases where legally privileged material is intercepted, including that where such material is retained it must be reported to the independent Interception of Communications Commissioner.

Tuesday 8 December

House of Commons: European Union Referendum Bill

The Bill is at ping pong stage where MPs are considering amendments tabled in the House of Lords

Read more about the Bill

Justice oral questions: main points

Law Society - Labour MP Huw Irranca-Davies (Lab, Ogmore) referenced Law Society president Jonathan Smithers noting that the Law Society warning that with the increase in courts fees and the eligibility of legal aid, many court closures will deepen inequalities between those who can and can't pay

Criminal court charge - the Lord Chancellor noted that the criminal court charge has been paused and will await the findings of the wider review into court charges on offenders. He noted that all charges currently unpaid and before 24 December will still stand and asked magistrates who have resigned to reconsider their decision

Civil legal aid residence test - Shailesh Vara MP noted that the government would continue to push for the residence in the courts as far as it could and was committed to the test following the recent success in the Court of Appeal

Court closures - Shailesh Vara MP stated that no decisions on what courts will be closed has been made, but he stated that access to justice comes in various forms. He noted that he has recently spoken to an African Chief Justice where he discussed wanting justice through their mobile phones for rural areas, leaving courts for the most serious cases

Jurisdiction of choice - Following a question from Lucy Frazer QC MP (Con, South East Cambridgeshire), Shailesh Vara MP noted that people come to British courts because of our expertise, impartiality for judges not just the fees

British Bill of Rights - Following a number of questions, Human Rights minister Dominic Raab MP clarified a number of points:

  • The government cannot rule out every withdrawing ECHR and our proposals include staying in the ECHR with a "common sense list of rights". He noted the need for the Supreme Court to be supreme and this House to have the last word
  • The government confirmed that the Bill will be brought forward next year and that they are currently reviewing the impact of jurisprudence in Luxembourg as well as Strasbourg
  • Revision of the Human Rights Act can only be done by UK government but implementation of a number of rights is devolved.

APPG on Legal and Constitutional Affairs and APPG on the Rule of Law - Legal professional privilege

On Tuesday the APPG for Legal and Constitutional Affairs, which the Law Society and Bar Council provide secretariat to, and the APPG for Rule of Law, which the Bingham Centre provides secretariat, hosted a joint parliamentary meeting on the draft Investigatory Powers Bill which was attended by a number of the joint committee.

The key points made on legal professional privilege (LPP) were:

  • Professor Sir David Omand noted that the protection for legal privilege is not needed in the legislation and by being in codes of practice they can be updated by Parliament more easily than legislation.
  • He argued that the judicial commissioners will ensure that the codes are being followed and failure to follow them will be a disciplinary offence.
  • Peter Carter QC reminded the audience that LPP is the right of the client and not the lawyer. He noted that LPP covers communications made in the context of legal advice for litigation and not for advice given to assist in criminal activities.
  • Carter noted that other privileges have been eroded but because LPP remains a right as it is allied to the human right entitling individuals to independent legal advice.
  • He concluded that if security agencies say that they need access to legally privileged communications to fight crime, the response is: show us the evidence.

Liberal Democrat peer Baroness Hamwee queried how the codes of practices could be scrutinised. An attendee from the Home Office confirmed that the codes of practice are to published when the Bill is laid in Parliament. Sir David stated that the Joint Committee could insist that codes be drafted and published prior to the report of the committee. Following this question, Carter did raise some concern that s6 only referred to codes relating to accessing data and queried why some types of data were referenced in the legislation, but not all. The meeting also considered the 'double lock' for warrants and most parliamentarians focused their questioning on this point.

Early Day Motion: Court closures

An EDM was tabled by David Anderson MP (Lab, Blaydon) urging ministers to listen carefully to the concerns being raised and not to continue with any closures that would restrict access to justice, remove or reduce staff and public safety and lessen public confidence in local justice delivery. The EDM currently has 12 signatories.

Read the EDM in full

Wednesday 9 December

House of Commons: Committees: Justice Select Committee: Court and tribunals fees and charges

The Justice Select Committee undertook its third oral evidence session for its ongoing inquiry into courts and tribunals fees and charges. The Society has submitted written evidence to this inquiry.

The Justice Select Committee saw evidence from the following organisations:

  • Sarah Crowther, Outer Temple Chambers, South Eastern Circuit
  • Alice Hardy, The Police Action Lawyers Group
  • Derek Bambury, Forum of Insurance Lawyers
  • Anthony Abrahams, director general, Chartered Institute of Arbitrators
  • Jo Edwards, chair, Resolution
  • Carita Thomas, Immigration Law Practitioners' Association

Notable points from the witnesses include:

The current upfront fee structure goes against the Civil Procedure Rules to encourage settlement in personal injury cases.

Following LASPO and the removal of success fees, it is not possible for many law firms to pay the disbursements up front for clients leaving a large proportion unable to afford £10k at the start of a claim.

The fee doesn't take into account the amount of cases that actually go to court with only three to five per cent of personal injury cases going to court.

The current £10k fee and suggested £20k fee are unlikely to have an effect on major commercial cases using English law but the proposed five per cent of claim would likely effect us being the jurisdiction of choice.

While no witnesses raised specific concerns about the Ministry of Justice's evidence base they had their doubts it was more perception than 'hard evidence'.

General consensus that the fee remission system is not working effectively as the capital income threshold is too low and there is a lack of public awareness of the scheme.

Immigration cases are against the state so there is no way to negotiate as an alternative and it is unfair that only the appellant has to pay. She noted that there is no 'polluter tax' for the Home Office.

Thursday 10 December

House of Commons: debate: International Human Rights Day

The Law Society was mentioned in a debate on International Human Rights Day by Labour MP and former solicitor Valerie Vaz (Lab, Walsall South): "We then come to the lawyers who have died defending human rights. The Law Society said it was shocked and saddened by the murder on 28 November of the Kurdish human rights lawyer Tahir Elci. Karim Hamdy, 27, died in February 2015, after two days' detention in Cairo, with broken ribs and bleeding in the brain. Salwa Bugaighis was shot dead in her home in Libya in June 2014 after voting. She was a prominent human rights lawyer who opposed moves to make the hijab compulsory." We briefed MPs ahead of the debate.

The Labour Party also called for the government to drop its plan to scrap the Human Rights Act to show their support for the United Nations International Human Rights Day with a number of their MPs repeating the call during the debate.

House of Lords debate: legal aid

Labour Peer Lord Howarth of Newport led a Lords debate on the future of legal aid. The Law Society and the President were referenced on a number of occasions:

Lord Howarth quoted president Jonathan Smithers' remarks that the exclusion of thousands of people from the legal aid system undermines society itself. He also quoted statistics that 600,000 people a year have been excluded from legal aid and noted Jonathan Smithers remarks that we need to look at what we really want to achieve as a legal system - what sort of society we want.

Liberal Democrat peer Lords Marks (who we briefed) mentioned two of our specific asks:

The Law Society's suggestion that solicitors should be able to certify a client as a victim of domestic violence to quality for legal aid, without the victim having to jump through hoops to prove it themselves.

The Law Society's calls for clients lacking the capacity to represent themselves to qualify automatically as exceptional cases for legal aid

Justice minister Lord Faulks noted that the Law Society has acknowledged that there was a need for some consolidation. Many of the arguments made were similar those made in previous debates with the key concerns being:

The impact on people's lives, particularly those at the lower end of the socio-economic scale, who relied on legal aid more than anyone else.

The impact on the proper execution of the rule of law – if litigants were unable to properly exercise their rights of access to justice within the judicial system, it ultimately undermined the rule of law and society itself.

The future of the criminal bar, as well as solicitors. Legal aid enables criminal barristers to practise, and enables law firms engaged in criminal litigation to practise. With this taken away, it is no longer financial viable, or indeed possible, to continue.

In his response, Justice minister Lord Faulks stuck to the line the government had held over the past few months saying that changes had focused legal aid where it was needed, and on the most important cases. The most significant comments came in the minister's response when he said that the spending review settlement with the Treasury for the next five years leaves legal aid almost untouched. He went on to say that the changes had focused legal aid where it was needed, and on the most important cases, and tried to assure fellows peers that “this government does not want to abandon legal aid.”

Read the report in full

Friday 11 December

House of Commons

Committees: Justice Select Committee - government response to the Committee

Second Report of Session 2015-16 on criminal courts charge

In response to the Justice Select Committee's recent report on the criminal court charge, the Lord Chancellor wrote to the Committee to inform them of the removal of the charge and the launch of a review into the "complex and confusing" structure of court-ordered financial impositions for offenders. He reiterated that the review will consider how to ensure that offenders make a fair contribution.

Written answers:  Mental Health Taskforce

Following a question from Shadow Mental Health minister Luciana Berger (Lab, Liverpool Wavertree), Health minister Alistair Burt (Con, North Bedfordshire) said that the Mental Health Taskforce did not specifically include a representative from the criminal justice sector but Kate Davies OBE, Director for Director Commissioning of Health & Justice Services, NHS England will be contributing.

Tags: Westminster weekly update | European Union | access to justice | court fees

About the author

Richard Messingham is head of public affairs at the Law Society. He and his team are responsible for supporting the president and CEO to manage the Society's relationships with Parliamentarians, Ministers, civil servants and other major stakeholders of direct relevance to solicitors.
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