Westminster update: Law Society judicial review heard in court

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

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1. Criminal legal aid: Law Society judicial review heard in court

Our judicial review of the government’s decision to ignore its own commissioned review of criminal legal aid rates was heard at the high court last week (12-14 December).

We told the court that the criminal legal aid system is "terminally broken" and "destined to wither beyond repair".

We added that there is a "fundamental problem of retention and recruitment" within the criminal legal aid profession.

Following years of underfunding, the independent review of criminal legal aid was a moment for the ministry of justice to ensure our justice system had the funding it needed. A minimum lifeline of a 15% funding uplift was the key recommendation to keep our struggling criminal legal aid system running.

However, the government instead chose to implement a 9% uplift in rates, amounting to a real-terms cut to criminal legal aid.

By ignoring the recommendations of the independent review, we believe the MoJ’s decision was, irrational, lacking evidence-based reasons, and in breach of the constitutional right of access to justice.

The government refused to mediate, leaving us with no choice to continue this fight on behalf of our members in the courtroom.

We covered the arguments throughout the week’s hearings on social media.

Follow the key moments

The judges will give their ruling in the new year.

2. Rwanda Bill passes second reading

On Tuesday 12 December, the Safety of Rwanda (Asylum and Immigration) Bill had its second reading in the House of Commons.

The bill seeks to sidestep the Supreme Court’s recent ruling that the government’s plan to send asylum seekers to Rwanda was unlawful.

We have raised serious concerns about the bill, which effectively seeks to place the government above the law and demonstrates a profound lack of respect for the rule of law and separation of powers.

Not only does the bill attempt to manufacture a reality by overturning an evidence-based finding of fact by the UK’s highest court. It also suppresses judicial oversight, ignores the UK’s obligations under international law, and severely restricts individuals’ ability to bring legal challenges against removal to Rwanda.

Ahead of the debate, the government faced the prospect of a rebellion on two fronts.

While moderate “one nation” Conservative MPs ultimately chose to support the bill, a number of MPs from groupings on the right of the Conservative Party, who believe the bill does not go far enough to stop small boats crossings, declared they would abstain rather than vote for the legislation.

The government could have risked losing its effective majority, leading to the first second reading defeat for a sitting government since 1986.

In the end, however, the bill passed its second reading by 313 votes to 269.

The home secretary, James Cleverly, opened the debate saying that he was “confident… that the actions we are taking, while novel and very much pushing at the edge of the envelope, are within the framework of international law”.

He said that “judges of course play an important role, but they are not policymakers”.

Labour speakers picked up on some of the rule of law concerns we have raised.

Maria Eagle (Labour) said that excluding courts from considering relevant evidence and from taking account of judgments and laws, including domestic legislation, is tantamount to undermining the rule of law.

The bill will next move to committee stage, which will likely take place in early January.

3. Leasehold and Freehold Bill also passes second reading

On Monday 11 December, the levelling up secretary Michael Gove led the Leasehold and Freehold Reform Bill through its second reading in the Commons.

Members across the House rose to argue the flaws with the leasehold and freehold system.

Stella Creasey (Labour) called it a “feudal process that still denies our constituents a voice over the thing that is most precious to them: their home”. She asked Gove why he would not agree that the UK should move to a commonhold system.

Gove agreed with Creasy that “commonhold is the ideal form of tenure” but said that there are technical questions around when it can apply. Gove committed that the bill will ban the sale of new leasehold homes, despite the fact that the bill does not currently include any such provisions.

He said he is “very open to improving the bill in committee; we will be improving it ourselves by bringing forward the legislation that will ban new leasehold homes in the future”.

Angela Rayner (Labour) responded for the opposition and spoke in broad support of the bill.

She raised the lack of proposals on ground rent and banning the sale of new leasehold houses. She noted that Labour would be tabling several amendments at committee stage.

Chair of the Levelling Up, Housing and Communities Committee Clive Betts (Labour) opened his contribution by stating that “it is what is not in the bill that is disappointing”.

In particular he highlighted his desire to act retrospectively to remove onerous ground rents in existing leases, arguing that his committee had heard a legal opinion that doing so would be compatible with the European Convention on Human Rights.

Betts also repeated his call for a specialist housing court: “There are so many issues in the housing field that need a specialism, and need quick decisions and quick resolution.

“A housing court would be one way of doing that and of trying to improve the process.”

Coming up:

We are working on a number of bills in Parliament:

If you made it this far...

From the Public Affairs team, we wish all our members a very Merry Christmas and happy holidays as we wind down for the festive period.

This year has brought significant successes for us and we are excited to continue delivering for the sector in 2024!

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