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Westminster update: Law Society president gives evidence to EU Committee
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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Five things you need to know
Last week, we were mentioned 11 times in Parliament, our president gave oral evidence in the House of Lords and we made strong representations on support for legal aid firms.
1. Law Society president gives evidence to Lords on professional and business services
Last Thursday, our president Simon Davis gave oral evidence to the EU Services sub-committee in the House of Lords, as part of their ongoing inquiry into professional and business services and the future relationship. Other witnesses in the virtual session included:
- Ed Braham, senior partner, Freshfields Bruckhaus Deringer
- David Joseph QC, vice chair, Commercial Bar Association
- Audley Sheppard QC, chair, London Court of International Arbitration
The chair, Baroness Donaghy (Labour), opened by asking what were the main trade barriers the UK legal sector would like to see addressed in the future relationship.
Simon answered first, saying 1,700 solicitors of England and Wales practice in the European Union and outlining the work of the International Law Committee. He stressed the importance of the needs of the client.
Simon observed that there is no single regulation that we're seeking to improve, but instead 31 different regulatory regimes across Europe. He said under current circumstances UK lawyers can practice freely across Europe, but that when the transition period ends the UK will be negotiating with 31 different jurisdictions for access unless rights of establishment and rights to advise are agreed.
Lord Vaux of Harrowden (Crossbench) asked about existing EU trade deals, and how successful these have been in supporting legal services.
Braham made the point that legal services trade supports “real businesses and real consumers.” He said that many EU lawyers want a connection with English law, and that 45% of Freshfields is made up of partners on the continent, only a tiny number of which have English law as their primary qualification.
He said that trade in legal services is not a zero-sum game between the EU and the UK, and that if English law is perceived as having been damaged, New York law will gain further precedence rather than the law of one of the EU27 emerging as a new international hegemon.
Viscount Trenchard (Conservative) asked how engaged the witnesses and their organisations feel with the process by which the UK position was developed, and how engaged they feel with the EU.
Simon said that participation in the Council of European Bars (CCBE) is useful, and that individual relationships within it are excellent. He said the CCBE will follow the lead of the European Commission, and that there will likely be those within the CCBE who see a competitive advantage to be gained from placing barriers to UK trade in legal services (just as the UK government does not wish to harm the global reputation of English law and dispute resolution).
2. Law Society mentioned in Justice Questions
Last Tuesday, the lord chancellor and his ministerial team answered oral questions in a socially distanced House of Commons.
We were mentioned by name in a question by Labour MP and chair of the APPG on Legal Aid Karen Buck. The question asked what discussions had been had with the Treasury to support the legal aid sector.
Responding, Chalk said steps have been taken to ensure that where there is money in the system (more than £400 million) that this is more easily available for practitioners to draw down, so that they can be helped during this crisis.
Lord chancellor and justice secretary Robert Buckland was also asked for clarity on discussions with the home secretary on public funding, including suspending “no recourse to public funds” and access to justice.
In reply, Buckland said in a large number of measures involving police activity on domestic violence prevention orders legal aid is not a barrier to those orders being made. Emergency applications make the domestic abuse test somewhat more accessible for people who need that protection.
He said there is ongoing work with regard to aspects of legal aid, and gave assurances the government is doing all it can to assist the victims of domestic abuse, and not just in terms of access to legal proceedings.
In response to a queston about the implications of the COVID-19 outbreak for his Department's priorities, Buckland stated that audio and video technology was being used in 90% of hearings to keep courts going. He said getting the judicial system back up and running was a priority and the government is working at pace on issues such as increasing jury trials and their legislative programme.
Parliamentary under-secretary of state for the Home Department Chris Philp said the increased use of video and audio was a critical part of the government’s effort to keep the justice system going.
The justice minister, Alex Chalk, also said that rapid action, where possible, has been taken with the help of practitioners and the judiciary to overcome challenges in maintaining access to justice for all. Some 159 courts remain open across all jurisdictions, and a further 116 were staffed.
In response to a question from the SNP justice and home affairs spokesperson, Joanna Cherry QC, about amending the Human Rights Act, Buckland said the government is seeking to update the Human Rights Act, and that he is working on an independent review into the operation of the Act and would update the House when further details were available.
3. Divorce Bill debated in the House of Commons
The Divorce, Dissolution and Separation Bill had its Second Reading in the House of Commons last Monday and passed with 231 votes in favour and 16 against. We briefed MPs ahead of the session and were mentioned four times in the debate.
The lord chancellor introduced the Bill and referenced our concerns around service of notice. He said he was “aware of the concerns of hon. and right hon. members and the Law Society about the question of delayed service where this is done by the applicant’s spouse, and we will of course work with the Family Procedure Rule Committee on that point, and indeed on the point about making sure that divorce does not end up being a complete surprise to a respondent who perhaps knew nothing about service. We will, through the Family Procedure Rule Committee, make sure that those important concerns are dealt with.”
Sir John Hayes MP (Conservative) referenced our concerns around respondents not having adequate notice of service of proceedings, while the justice minister Alex Chalk quoted our president: “No wonder the president of the Law Society has said ‘For separating parents, it can be much more difficult to focus on the needs of their children when they have to prove a fault-based fact against their former partner… Introducing a ‘no-fault’ divorce…will change the way couples obtain a divorce—for the better.’”
Committee Stage has been scheduled for 17 June. We'll be briefing again and will be working with some members of the Commons on putting forward draft amendments.
4. Corporate Governance and Insolvency Bill reaches the Lords
Last Tuesday, the Corporate Governance and Insolvency Bill has its Second Reading in the House of Lords. We briefed peers ahead of the debate and were mentioned four times during proceedings.
Baroness Falkner (Non-affiliated) referred to our briefing when raising concerns regarding the difference between the intent of the Bill and its wording. She referenced Clauses 18 and 19, which give the secretary of state powers to amend legislation and quoted our briefing to say the use of the word “procedure” in those clauses is ambiguous and appears to give “considerable discretion to the government”.
In her discussion on the moratorium and the rule and powers of the monitor, Baroness Falkner referenced our suggestion is that there should be a simple test with clear qualifying criteria for firms employing this avenue to buy time.
Baroness Altman (Conservative) agreed with the recommendation in our briefing on introducing more checks and limitations to reduce the risk of the moratorium being abused, such as ensuring the independence of the monitor, limiting the number of extensions and limits on related-party restructurings.
Committee Stage has been set for 16 June. We'll be briefing again for this stage of the Bill and will be working with some members of the Lords on putting forward draft amendments.
5. Counter-Terrorism and Sentencing Bill introduced in the Commons
Last Tuesday, the Counter-Terrorism and Sentencing Bill had its Second Reading in the House of Commons. We briefed MPs ahead of the debate on key concerns relating to the use of Terrorism Prevention and Investigation Measures (TPIMs) and polygraph conditions for offenders released on licence.
Our arguments were reference twice by MPs during the debate. Bob Neill MP (Conservative) referenced our call to maintain the existing evidential requirement for imposing a TPIM, rather than relax it as the Bill proposes: “The greater the level of restriction, as the Law Society has observed in one of its briefings, perhaps the greater the burden of proof that should be required.”
Gavin Robinson MP (DUP) referenced our concerns that the Bill would take TPIMs closer to the control orders they replaced, which faced several high profile human rights challenges in the courts: “On TPIMs, it is important to say that the Law Society has raised concerns about control orders, how they were brought to an end, how there was a difficulty in engagement with human rights legislation and how the imposition of a control order may not have been proportionate, given the risk of the individual, which is why they were changed. It has raised concerns that the changes to TPIMs will take us back to that control order phase.”
Much of the debate focused on the measures relating to TPIMs, with the Home Affairs Committee chair, Yvette Cooper MP, raising particular concerns regarding the relaxation of the burden of proof required for imposing a TPIM.
Chris Philp, the justice minister, told the House the government's intention in lowering the standard of proof was to give the Home Secretary the maximum flexibility required to impose TPIMs where needed to protect the public. He argued there were sufficient safeguards, including the requirement for the High Court to give permission for the imposition of a TPIM and the right of those subject to a TPIM to seek a judicial review.
Philp also addressed the issue of allowing polygraph conditions to be imposed on offenders released on licence. He stated that polygraph results would not be binding, but would simply help flag to probation officers where further investigation is needed to assess compliance with licence conditions. He pointed to the successful use of polygraphs for sex offenders released on licence as an example of how this would work.
The Bill passed Second Reading without a division. A date has yet to be announced for Committee Stage.
Coming up this week
This week will see a flurry of legislation in both Houses of Parliament. In the Commons the Domestic Abuse Bill, the Immigration Bill and the Trade Bill will all face Committee Stage, while the Divorce, Dissolution and Separation Bill will see complete its remaining stages in the Commons on Wednesday.
In the Lords, the Corporate Insolvency and Governance Bill will have its Committee Stage on Tuesday, while the Private International Law (Implementation of Agreements) Bill will face Report Stage on Wednesday.
Beyond legislation, the Lords Constitution Committee will be taking evidence on Wednesday, while Baroness Whitaker will be seeking information from the government on its proposed Constitution, Democracy and Rights Commission on Tuesday.
If you made it this far
We've responded to the publication of Professor Mayson's independent review of legal services regulation this week.