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Westminster update: Internal Market Bill passes Commons
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
One thing you need to do
Join our virtual Conservative Party Conference fringe event, Reset, Resilience, and Recovery: unleashing legal services' potential, on Monday 5 October, 1pm to 2pm, featuring the justice minister, Alex Chalk, and Conservative MPs Sir Bob Neill and James Daly.
Five things you need to know
1. APPG on Legal and Constitutional Affairs holds its AGM
Last Tuesday, the All-Party Parliamentary Group on Legal and Constitutional Affairs held its official AGM alongside a public virtual event on the topic of: How can the spending review help the justice system to build back better?
Our president Simon Davis spoke at the event as part of a panel that included Amanda Pinto QC, chair of the Bar Council, and Amanda Millar, president of the Law Society of Scotland. His remarks focused on priorities for the legal services sector for the comprehensive spending review, namely:
- protecting the Ministry of Justice’s (MoJ) current budget and committing to ensuring that it rises yearly at least in line with inflation
- prioritising targeted budget increases for the MoJ to improve the working of the justice system, including support for legal aid and the restoration of legal aid for early advice
- investing for the future to help law firms weather the significant economic difficulties facing the legal sector and to unleash the full potential of legal services to drive the recovery from COVID-19
The AGM also saw the election of officers of the APPG. Laura Farris MP (Conservative) was elected as chair, with Lord Hunt of Wirral (Conservative) confirmed as co-chair. James Daly MP (Conservative), Maria Eagle MP (Labour), Joanna Cherry MP (SNP) and Kenny MacAskill MP (SNP) were also all elected as officers.
2. Commons approve Internal Market Bill
Last Tuesday, the Internal Market Bill underwent report stage and passed at third reading. We briefed before the debate and our briefing was quoted by Liberal Democrat Justice spokesperson Wera Hobhouse MP, who said:
“Let me add my voice to those of the many Members of Parliament, professional organisations and members of the public who have grave concerns about clauses 41 to 45, and their implications for the UK’s commitment to international law. The Law Society and the Bar Council have described them as representing a “direct challenge” to the rule of law without precedent.”
We supported amendments that would remove these clauses or amend them to ensure there was a ministerial duty to uphold the rule of law and judicial independence. Unfortunately, these were defeated.
We also made representations on the secondary legislation emanating from these clauses and limitations to judicial review.
Business, energy and industrial strategy minister Paul Scully MP said that the “Government have been clear that regulations made under clauses 42 or 43 would be subject to judicial review on general public law grounds, while ensuring that any claims must be brought within three months. This ensures any challenge to the regulations will be subject to timely resolution before the courts.“
Justice Select Committee chair Sir Bob Neill MP (Conservative) said that he does not “find it offensive that judicial review of some of these matters is limited to 21 days. Provided that there is judicial review—and there is—I think that that is proportionate, given that it is highly likely that the issues that give rise to a judicial review will have been so publicised and so ventilated that there should be no great burden on a potential litigator in bringing their case within that time.”
Our concerns on the Bill have now been referenced in the chamber by shadow ministers and spokespeople for the Labour Party, Liberal Democrats and SNP, as well as ex-prime minister Teresa May MP.
We'll continue briefing on the Bill as it passes through the House of Lords in October and returns to the Commons.
3. Lord chancellor opens new legal year
The lord chancellor and Dean of Westminster officially opened the new legal year at Westminster Abbey on 1 October.
The ceremony was attended by our office holders and senior team, and in an evening service at Temple Church the lord chancellor gave an address in which he spoke about the the rule of law, the coronavirus pandemic and a better system for a different future.
In his speech the lord chancellor stressed that “when it comes to the professions – barristers, solicitors, legal executives – it is right and proper for practitioners to make the strongest cases possible and do their utmost for their clients within the confines of the law. Sometimes a lawyer will find the argument they advance to be at odds with the government of the day – but it frankly it is a strength of our mature democracy underpinned by the Rule of Law that such debates can occur.”
He added that it is important that we “look at the period ahead not just as a recovery from the virus, but as a renewal for justice in our country. We can use it as an opportunity to improve the system for everyone who uses our courts and tribunals; to create a better system and to continue the tradition of England and Wales leading the way where other jurisdictions follow.”
As part of a virtual programme of events for international bar leaders, members and international and domestic stakeholders jointly hosted by ourselves and the Bar Council, on Wednesday our vice president David Greene hosted a roundtable for bar leaders titled the impact of Covid-19 on the rule of law and democracy and the role of the profession which was attended by the bar leaders of over 40 international bars.
On Friday the president co-hosted a virtual seminar celebrating 125 Years of the Commercial Court which looked at comparative perspectives of international commercial courts. This seminar was attended by over 150 people including solicitors, barristers, international lawyers and bar leaders.
4. MPs debate extension of Coronavirus Act powers
Last Wednesday, the House of Commons debated and voted on a motion renew the temporary powers granted in the Coronavirus Act 2020.
MPs voted 330 to 24 to renew the temporary powers in the Act. An amendment proposed by Sir Graham Brady MP (Conservative), which called for the powers to be renewed at more frequent intervals than six months was required by the Act, was ultimately not moved.
In the first parliamentary review of the temporary measures introduced by the Coronavirus Act since its passing in March, the health secretary, Matt Hancock, said that measures suspending key protections in the Care Act and the Children and Families Act would not be reinstated, and agreed to review powers that reduced the rights of people using the mental health system.
Ahead of the debate we briefed MPs on the findings of our recently published Law under Lockdown report, which details the impact the measures in the Coronavirus Act have had on vulnerable people, including those living in prisons, immigration detention or care settings, disabled people, children and victims of domestic abuse, and makes recommendations for mitigating these negative impacts.
5. Joint Committee on Human Rights examines Overseas Operations Bill
Last Tuesday, the Joint Committee on Human Rights heard evidence as part of pre-legislative scrutiny of the Overseas Operations Bill, which we've recently provided written evidence on. The witnesses were:
- Martyn Day, senior partner, Leigh Day
- Mark Goodwin-Hudson, former British army officer
- Reverend Nicholas Mercer, former command legal advisor in Iraq
- Elizabeth Wilmshurst CMG
The chair, Harriet Harman QC MP (Labour), asked about the presumption against prosecution, and whether the panel thought this was justified or necessary.
Wilmshurst said that, while some soldiers may have been the subject of vexatious claims, the presumption puts at risk the UK’s reputation as an upholder of international law and is not the best way to solve such an issue.
She went on to say that it puts UK service people at risk of being prosecuted by the International Criminal Court. Goodwin-Hudson agreed with Elizabeth, and said it was far more important to be able to conduct “accurate and timely investigations in theatre” if the aim is to avoid historic investigations.
Fiona Bruce MP (Conservative) said the presumption would apply to all crimes bar sexual offences, and asked whether others, such as murder, should be excluded.
Wilmshurst said it was good that sexual offences are to be excluded, but it gives rise to a difficult situation whereby a claim involving sexual offences, murder, and torture would be more likely to be successful on the first count and not the latter two. She said that she was against the presumption in its entirety, but that if it is to exist it must have more exceptions for serious crimes. Day and Mercer said they cannot see a reason for other serious offences not to be excluded.
Harman asked whether the courts have sufficient powers to protect against vexatious or unmeritorious claims.
Mercer said that the amount of vexatious claims are overstated. He said the vast majority of claims about the ‘five techniques’ and ‘harshing’ have legal merit, and that the criminal legal system will tend to weed out those without.
Harman mentioned the government rhetoric around “ambulance-chasing lawyers” who are “acting unethically.” She asked whether it was not the job of the SRA to make judgment on this, rather than the government.
Day said the SRA has responsibility, and that this led to Phil Shiner being struck off. He said it was important the SRA remains seen as independent of government, and that the state cannot involve itself with regulation. Wilmshurst concurred.
We continue to monitor the Committee’s work in this area, and brief on the Bill as it passes through both Houses.
Coming up this week
This week will see the Overseas Operations Bill come to the Commons for committee stage on Tuesday and Thursday, while the Private International Law Bill will have its committee and remaining stages in the Commons on Tuesday. The Lords meanwhile will debate the Immigration and Social Security Bill at report stage on Monday.
In select committee business, the paymaster general Penny Mordaunt MP will give evidence to the European Scrutiny Committee regarding the Withdrawal Agreement on Monday, while chancellor of the Duchy of Lancaster Michael Gove MP will be giving evidence to the Commons Future Relationship Committee and the Lords European Union Committee on Wednesday.
If you made it this far
The MoJ has published guidance for legal professionals and guidance for members of the public impacted by the end of the transition period this year. Read alongside our own guidance, and keep checking this page as content on specific areas of law is added throughout the Autumn.