Westminster update: Internal Market Bill passes Lords second reading
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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1. Internal Market Bill passes Lords second reading
Last Tuesday was the second of two days of second reading debate on the Internal Market Bill in the House of Lords.
We briefed before the debate in conjunction with the Bar Council, and was mentioned four times during proceedings.
Former lord chief justice Lord Judge (Crossbench) tabled a motion to regret at second reading. While the Bill passed second reading, the motion succeeded by a margin of 226, marking the biggest government defeat in the Lords since the votes on reform of the upper house in 1999.
The successful amendment adds that the House of Lords “regrets that Part 5 of the bill contains provisions which, if enacted, would undermine the rule of law and damage the reputation of the United Kingdom.”
Lord Judge argued that the controls on the executive are “vanishing into the air,” and said of secondary legislation that “parliamentary control has crumbled through disuse and the normal scrutiny of which by the courts has been reduced to a whimper.”
The leader of the Liberal Democrats in the House of Lords, Lord Newby, quoted our briefing on the Bill when countering government assertions that there was sufficient precedent to justify a breach of international law of this magnitude.
Baroness Kennedy of the Shaws (Labour) said that “the legal profession in this country is united in its opposition to the Bill – the Bar Council, the Law Society, the lawyers and judges.” She argued that “it seems to me to be following a regrettable trend of undermining law more generally”, and that “we are seeing attacks on lawyers and the judiciary, and an effort to undermine the judiciary and its discretion.“
Former justice minister Lord McNally (Liberal Democrat) ranked ourselves and the Bar Council among the Bingham Centre, the Lords Constitution Committee, and “all five living ex-Prime Ministers” as those who have expressed concerns about the Bill.
Baroness Ludford (Liberal Democrat) raised the implications for civil judicial co-operation, and for the UK’s status as a global legal centre, saying “the Bar Council and the Law Society highlight the prejudice to the position of London as a centre for international practice and dispute resolution, and to our attempt to accede to the Lugano Convention.”
The Bill will now be considered in Committee, which will begin on 26 October.
2. Spending on legal aid debated
Last Thursday, MPs debated the spending of the Ministry of Justice (MoJ) on legal aid in Westminster Hall. We briefed ahead of the debate, and we were mentioned six times.
Opening the debate, chair of the Justice Select Committee Sir Bob Neill MP (Conservative) noted the importance of access to justice for all and the role of legal aid in providing access to justice. He cited our briefing and the importance of early legal advice. He raised concerns at difficulties in recruitment for younger lawyers in criminal legal aid. He cited our statistics on the age of criminal duty solicitors.
During the debate, chair of the APPG on Legal Aid Karen Buck MP (Labour) cited our legal aid deserts maps which show the lack of availability for housing and community care legal aid advice across the country, while shadow crime reduction and courts minister Bambos Charalambous MP noted our concerns on the sustainability of criminal legal aid and reiterated our call to fast-track the criminal legal aid review.
Shadow lord chancellor David Lammy MP, said that the right to a fair hearing is a human right, and that legal aid gives assistance to people who are unable to afford representation. He noted that two years on from the post-implementation review of LASPO, many of the recommendations have not yet been implemented. He noted that when legal aid was first introduced, around 80% of people were eligible for it. Today that figures stands at around 20%. He called for legal aid to be given the support it needs, restoring it to where it was as a public service back in 2010.
Responding for the government, justice minister Alex Chalk MP said that legal aid stands as “a pillar of our constitution and a bulwark of our freedoms”. He said that legal aid is there to ensure that the rights and liberties of ordinary citizens are upheld. He noted the support provided to criminal lawyers through the criminal legal aid review and the ongoing work being undertaken. He acknowledged that there is more to be done to ensure legal aid sustainability, and that the MoJ are undertaking work in that space.
3. Commons reject limits on immigration detention
Last Monday, the Commons debated amendments the Lords had made to the Immigration and Social Security Co-ordination (EU Withdrawal) Bill.
We briefed in support of the amendments which would have put in place a time limit of 28 days on immigration detention for EEA and Swiss nationals, and ensured that there cannot be re-detention without a material change in circumstances. They also set out criteria for detention – primarily that the detainee can be shortly removed from the UK, is proportionate and necessary – and allowed for bail hearings. The government voted against retaining these amendments, and won the division to remove them from the Bill.
During the debate, Home Office minister Kevin Foster MP said “we want detention to be used as a last resort. Its use has been declining over the past few years.” He argued the amendments were unnecessary as “there is no ability to put someone in detention for no reason” and observed that the issue of detention is “is not directly relevant to the purpose of the Bill, which is to end free movement.”
Last Wednesday, the Lords considered the version of the Bill amended by the Commons. The Lords accepted all the removals bar one on child refugees, which Labour peer Lord Dubs pushed to a division and defeated the government on. The Bill will therefore return to the Commons on 4 November.
4. Overseas Operations Bill Committee discusses derogation from the ECHR
Last Thursday saw the tenth sitting of the public bill committee on the Overseas Operation Bill.
Chris Evans MP (Labour) quoted Law Society president David Greene’s remarks on the Bill, agreeing that “our armed forces are rightly known across the world for their courage and discipline”, and that the provisions allowing for a derogation from human rights conventions and breaking international law “would undermine this well-deserved reputation”.
Evans went on to argue that the UK will not be able to call on other countries to respect international treaties on human rights, or to honour international obligations, when we are setting a precedent in our legislation for derogating from them.
Veterans minister Johnny Mercer MP contested that the measures about derogation are not intended to change the “existing and very robust processes” that the government and Parliament follow around derogation. He argued that “the requirement to consider derogation merely ensures that all future governments are compelled to consider derogating from the ECHR for the purpose of the specific military operation.”
The Bill has not been amended at Committee, so will proceed unchanged onto report stage, scheduled for 3 November.
5. Lords discuss Gender Recognition Act
Last Monday, the Lords questioned the government over the Gender Recognition Act 2004. Lord Hunt of Kings Heath (Labour) asked the government what further guidance they would be issuing to public bodies following the conclusion of the review of the Gender Recognition Act 2004.
Minister for women Baroness Berridge answered that there were no plans for further legislative guidance but that this would be kept under review, and that the focus was on digitising and streamlining the application process, and reducing the fee. Speaking about single sex spaces, Baroness Berridge said that the Equality Act exemption allows for single sex spaces and that where justified, somebody can be refused access to that space.
In relation to the provision of single sex wards in hospitals, she said that the NHS’s provision of services is outlined in the Equality Act and so single-sex wards can be provided. She also noted that there is specific NHS guidance that, at present, states that transgender people should be accommodated according to their presentation but that front line clinicians would make decisions on this in the best interests of patients.
Coming up this week
The Commons is currently in recess, returning on 2 November.
The Lords will see the beginning of committee stage for the Internal Market Bill, which will run for two weeks.
There will also be an oral question on supporting small businesses during the pandemic, and discussion of regulations on practice rights and insolvency.
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