- My LS
Westminster update: Law Society-backed Immigration Bill amendments passed
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 David Greene on 14 October for his inauguration as president of the Law Society.
David will discuss his plans for the year as president in an interview with Clive Coleman, BBC Legal Correspondent, followed by a message from the lord chief justice of England and Wales, Lord Burnett.
Five things you need to know
1. Lords pass Immigration Bill amendments backed by Law Society
Last Monday, the House of Lords passed cross-party amendments 20–22 to the Immigration and Social Security (EU Withdrawal) Bill.
These amendments, supported by us, put a time limit of 28 days on immigration detention for EEA and Swiss nationals, and ensures 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 allow for bail hearings.
We also supported immigration detention being limited in such a fashion for all nationals, but an amendment to this effect had already been defeated in the Commons.
Liberal Democrat home affairs spokesperson Baroness Hamwee, who tabled the amendments alongside shadow home affairs spokesperson Lord Kennedy of Southwark, drew attention to the fact that the majority of people detained are ultimately released into the community, questioning why then they need to be detained for over 28 days. She said she did not “accept the argument that delays are due to lawyers gaming the system.”
Home Office minister Baroness Williams of Trafford argued that “the introduction of a detention time limit would severely limit our ability to remove those who refuse to leave voluntarily and would encourage and reward abuse, in some cases from individuals who present a genuine threat to the public”. She said that “detention is already used sparingly and, as noble Lords have said, we continue to pursue alternatives wherever possible,” and advised against the amendments.
2. Law Society arguments referenced as Private International Law Bill passes Commons
Last Tuesday, the Private International Law (Implementation of Agreements) Bill underwent report stage and third reading in the House of Commons. We briefed before the debate and were mentioned seven times during proceedings.
The Bill was passed at third reading, and at report stage the government was successful in amending the Bill to reinstate the secondary powers that had been removed by the Lords. The amendment in the name of Justice Select Committee chair Bob Neill MP and Jonathan Djanogly MP (both Conservative) on parliamentary scrutiny, which we briefed in support of, was withdrawn.
Justice minister Alex Chalk MP argued that the secondary powers in the Bill are “necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest.”
Neill mentioned our views when asking how the scrutiny regime would deal with declarations that are attached to international agreements, noting that these can modify or limit the scope of such agreements. He suggested that the minister may wish to consult the briefings from us and the Bar Council.
Neill referenced our support for acceding to Lugano and our arguments on the Hague 2019 Convention being important to the future of enforcement of judgments. Neill described the 2005 and 2019 Hague Conventions as “very important for the long-term future of English law clauses in many international contracts.”
Shadow lord chancellor David Lammy MP spoke to the importance of Lugano, saying it is “vital to ensuring that cross-border judgments can be enforced, and there is indeed a pressing need to implement it before the end of the transition period.”
Neill encouraged the government to commit to engagement with “the Law Society’s family law committee and the Lord Chancellor’s international law committee, which is headed by distinguished jurists.”
3. Law Society's Tax Law Committee chair gives evidence on the Finance Bill
Last Monday, the chair of our Tax Law Committee, Lydia Challen, gave oral evidence to the House of Lords Finance Bill Sub-Committee.
The session focused mainly on the impact of proposed new powers for HMRC to tackle aggressive tax avoidance. Lydia appeared in the second panel of the day alongside Fiona Fernie, member of the committee of the Tax Investigation Practitioners Group, and Yvonne Evans, member of the Tax Committee of the Law Society of Scotland.
Lydia Challen stated that we essentially support HM Revenue & Customs’ (HMRC) efforts to tackle aggressive tax avoidance. She noted that HMRC’s powers have grown enormously over the past decade, and are currently being reviewed, and stated that we believe this review should be completed before HMRC is given more powers.
Lydia stated that the new powers in the Finance Bill are broad and could potentially catch mainstream tax advisers, with the risk that they could penalise legitimate advisers.
Lydia Challen argued that the safeguard of the tribunal should be removed by the bill. She noted that during the pandemic the tribunal had changed its processes significantly, and these changes should be given a chance rather than moving straight to dispensing with the tribunal. She added that looking at recent evidence comparing the UK with France and Germany there is no evidence that the UK is any slower at processing requests than either of these countries.
On the subject of retrospective legislation, Lydia Challen stated that she would be happy with retrospectively legislating for a corporate interest reasonable excuse, but that she would be uncomfortable with retrospectively legislating for a penalty against enablers as they would have acted on the basis of the law as it was at the time.
4. Ministers questioned on Overseas Operations Bill
Last Monday, the Joint Committee on Human Rights heard oral evidence on the Overseas Operations (Service Personnel and Veterans) Bill from defence ministers and officials. The witnesses were:
- Johnny Mercer MP, minister for defence people and veterans
- Baroness Goldie, minister of state
- Katherine Willerton, deputy director, Legal Advisers, Ministry of Defence
- Damian Parmenter, director of the defence and security industrial strategy, Ministry of Defence
The role of lawyers was touched on several times. Dean Russell MP (Conservative) said that one of the criticisms of the bill is that “Government are simply blaming lawyers and the law for failures to adequately resource the system” and asked if it was “just an opportunity to bring in a bill that means that lawyers will get blamed for bringing cases.”
Mercer said the government has a duty to ensure it does “a much better level of investigation and that we are much more resilient to abuses of the legal system.” He said “there is absolutely no place for those in uniform who break the law” but that the government is “not willing to stand by and usher through thousands and thousands of claims against service men and women going into old age.”
SNP justice spokesperson Joanna Cherry QC MP asked about the presumption against prosecution in the bill. Mercer said this was necessary to avoid vexatious prosecutions. Cherry suggested that the amount of successful prosecutions “rather suggests that the current system is working, because, whereas there may have been some investigations into events that you consider to have been vexatious or lacking in merit, under the current system they did not result in prosecutions.” Mercer disagreed, saying “all we are doing is putting up a barrier to try to ensure that if a civil claim proceeds to being a criminal claim, and forwards from that, it has a level of integrity and rigour that it has not had before.”
We were mentioned during second reading of the bill, and will continue to brief on the bill as it passes through Parliament.
5. Backbencher’s Conveyancing Standards Bill presented to Parliament
Last Wednesday, Marco Longhi MP (Conservative) introduced his Conveyancing Standards Bill to the House of Commons under the ten minute rule. He stated that his bill would establish minimum standards regarding searches and assessments of risk for solicitors and licensed conveyancers acting on behalf of purchasers of residential properties.
Longhi outlined that his intention in bringing forward this bill was to protect people buying a house from risks that he argued are not sufficiently visible at the point of purchase. He cited two real life cases as examples of such risks:
- the first involved regulatory liabilities for planning requirements being passed on from the developer to the purchaser without the latter’s knowledge
- the second involved a purchaser being informed about a service charge for maintenance of common areas at the point of sale, but not being informed that the value of the charge could be increased substantially after the sale without the purchaser being able to do anything about it
Longhi argued that the “system is being gamed by unscrupulous developers and contractors”, and that conveyancing solicitors are not highlighting the potential downsides to transactions with “sufficient robustness”.
The bill was scheduled to have its second reading in the House of Commons on 27 November, although it is unlikely to be heard on that day due to other business taking precedence. The text of the bill has not yet been published.
Coming up this week
The Overseas Operations Bill returns for committee stage in the House of Commons on Wednesday next week, while the Immigration and Social Security (EU Withdrawal) Bill will have its third reading in the House of Lords on Monday.
In select committee business, the secretary of state for digital, culture, media and sport will be giving evidence to the DCMS Committee on Wednesday, while the Joint Committee on Human Rights will be taking evidence on judicial review on Monday.
If you made it this far
Take a look at our newly published statement of the fundamental principles of judicial review, which will form part of our representations to the Independent Review of Administrative Law.