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Westminster update: Law Society raises key coronavirus issues with parliamentarians
Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.
One thing you need to do
MPs offices are getting a significant volume of questions from their constituents including on legal issues. To support them, we've put together a toolkit which sets out some initial guidance and how they can get advice from a solicitor for their constituents.
Five things you need to know
1. Coronavirus update
Over the past week we've published a suite of coronavirus related tools for solicitors, parliamentarians and members of the public to utilise.
We’ve published the toolkit as a resource to help MPs and their staff answer questions they are likely to be getting from their constituents.
We’ve updated our business toolkit to include the most recent government announcements on support available, and brought together a variety of established guidance in relation to virtual execution of documents and e-signatures.
In addition, our survey results indicating the threat to many high street firms has received coverage across the media throughout the week.
2. Law Society gives evidence to Justice Committee
Last Monday, our president Simon Davis and head of public law Ellie Cumbo gave evidence across two sessions to the Justice Select Committee on the impact of coronavirus on the prison, probation and court systems.
In the first session, chair of the Committee Sir Bob Neill MP (Conservative) started the session by asking panellists for their views on how the court system is coping with the scale and pace of change without losing quality and access to justice.
Ellie Cumbo said that we had agreed with the approach that the rule of law should not grind to a halt and that there had been challenges such as maintaining confidentiality with social distancing in the courts. She said that significant developments had been made and thanked HMCTS in facilitating discussions with the relevant agencies.
Maria Eagle MP (Labour) then asked if there were issues arising out of reduced court capacity that they should be aware of. Ellie Cumbo raised the point about the impact to justice due to the quality of remote hearings and that we would need more data to determine whether the new ways have affected justice.
John Howell MP (Conservative) asked what proportion of hearings were taking place virtually. Ellie Cumbo responded that we do not know for certain but it varies by court and by judge and that it will be important to have these figures. She said we can make broad generalisation by area, for example mental health tribunals are still going ahead but mostly using telephones only. She said that without information it is difficult to assess how tech is working and that it can only be done anecdotally at the moment.
In the second session, Sir Bob Neill asked the panel about the long-term viability of the legal profession, how real the threat is and how it could be quantified. Simon Davis responded that we had conducted detailed surveys of hundreds of firms and that no part of the legal sector will remain unscathed from this and that lawyers relied on human activity for success or failure.
Sir Bob Neill then referenced submissions from the legal sector raising concerns about cash flow and reduced fee incomes. Simon Davis responded that with criminal law in particular, the situation before the crisis was bad with levels of work low and levels of pay low and that the sector is in serious trouble.
Andy Slaughter MP (Labour) asked about the government support package. Simon Davis said the support package was welcomed with the two most useful measure being furloughing and deferral of tax, VAT and income. He pointed out that furloughing was a blunt tool in that it did not allow for part time work or pro bono work. He said the problem areas were the loans being offered and that there was low take up in sectors who are already in financial dire straits and didn’t know if they would be able to repay them.
3. Justice Committee hears from ministers
Following our evidence last Monday, the Committee heard direct from justice ministers Alex Chalk MP and Chris Philp MP, as well as HM Courts and Tribunals Service (HMCTS) chief executive Susan Acland-Hood.
Maria Eagle MP (Labour) asked how long the government will take to clear the backlog caused by coronavirus lockdown measures and asked about backlogs in other areas apart from criminal. Justice minister Chris Philp MP said that it will never go down to zero and he cannot set a time limit as it will be dependent on factors like relaxation of lockdown measures. He noted that civil orders are running at 80% of level pre-coronavirus.
Andy Slaughter MP (Labour) asked about assistance for not for profits and average monthly payments, small firms and business rates. Justice minister Alex Chalk said he is grateful for engagement from stakeholders including the Law Society. He noted that we should not lost sight of existing measures that have been taken to support firms and that the Legal Aid Agency (LAA) have quadrupled number of staff for fee claims. He noted that there is over £100 million worth of unbilled fees so there is money there to be downloaded. He said there had only been 16 applications under AGFS and six on LGFS, so there are levers to pull on.
James Daly MP (Conservative) asked about our ask relating to criminal legal aid firms and whether the standard monthly payments could be paid but the repayment staggered over time. Justice minister Alex Chalk said this is being looked at. He also said that he would like to see criminal legal aid solicitors get paid for work early on in the case such as when they are writing letter of representations to the Crown or when proofing witnesses, instructing experts etc. Critical work in the case should be properly rewarded. Additional measures include a flexible approach being taken by the LAA with regard to furloughing.
Marie Rimmer MP (Labour) then asked about access to courts for the public and media and chair of the Committee Sir Bob Neill MP asked about the transparency of justice where all those involved are working remotely. Justice minister Chris Philp MP said members of the public and press can contact the courts to ask to attend virtual hearings and can also in some court by physically present subject to social distancing measures. There are also plans in place for filming in the Crown Court for recording of sentencing statements.
4. Michael Gove gives evidence on Brexit
Last Tuesday, chancellor of the Duchy of Lancaster Michael Gove MP appeared before the House of Lords EU Committee to answer questions of the progress of UK-EU future relationship negotiations.
The chair, the non-affiliated Earl of Kinnoull, opened by asking whether the government position to not extend the transition period is sustainable considering the current crisis. Gove said that there is no need for extension as the arrangements the UK is seeking are based on precedent, and therefore the barriers to achievement are ‘political rather than technical.’
Lord Lamont (Conservative) said businesses were anxious about time to prepare, and asked whether differentiation could be made between transition and implementation, with some arrangements considering beyond 31 December. Gove said this was technically possible.
Lord Wood (Labour) asked what would happen if the EU asked for an extension of the transition period due to coronavirus. Gove said the government would look at the case made, but that he did not expect any answer other than ‘no.’
Lord Lamont asked whether ministers had the capacity both to deal with coronavirus and with future relationship negotiations. Gove said the government now had achieved the ‘rhythm of decision-making’ and that the bandwidth is there.
Lord Goldsmith (Labour) asked about the preparedness of business, and whether business can prepare for the future relationship considering coronavirus. Gove said government business was dealing with the relocating of supply chains currently. Lord Goldsmith asked whether coronavirus would affect other trade deals, and Gove said they were ready and willing to negotiate these also.
Baroness Primarolo (Labour) asked about Gove’s previous statements about measures on internal security not necessarily being agreed by 31 December, and what he thought could be agreed by then. Gove said he thought everything could be agreed by this point, but there may be difficulties in negotiations.
Baroness Primarolo asked if data exchange between the UK and EU would be in place by 31 December. Gove said he hoped so. Baroness Primarolo said the UK’s anti-money laundering measures derive from a succession of EU directives, and rely on information exchanges, asking how this would be continued if an agreement is not in placed by 31 December. Gove said the UK works with other international partners on AML, and that there are alternative measures which the UK will deploy. Gove said he was happy to share details with the Committee.
5. MPs formally approve coronavirus regulations
Last Monday, the House of Commons formally approved the regulations implementing the coronavirus 'lockdown' restrictions, as well as further regulations that made small clarifications to these. As the regulations were introduced under the “made affirmative” procedure they came into force immediately after being made on 26 March, before being required to receive approval from both houses of Parliament within 28 days to continue in effect.
The minister of state for health, Edward Argar, introduced the debate, noting concerns that have been raised about variations in the way police forces have enforced the lockdown requirements. He made clear that the regulations set out the legal powers, and that any other Government guidance is to be treated as no more than guidance.
The shadow health minister Justin Madders responded by highlighting the importance of giving proper parliamentary scrutiny to significant restrictions such as these. While accepting these were necessary measures, he called on the government to commit to giving an oral statement to Parliament after every three week review of the regulations and to give MPs an opportunity to debate any new regulations that may be introduced in the future to alter the restrictions.
He also called for harmonisation of the regulations with the accompanying guidance and all forms of official communication to ensure that guidelines are not confused with legal powers and the rule of law is maintained.
Steve Baker (Conservative) shared concerns with the way the government introduced the lockdown measures, which were announced before the legal powers conferred by the regulations had come into effect. He urged the government in future to make the law before announcing its enforcement to the public.
Andrew Griffith (Conservative) further highlighted concerns that the rule of law is being undermined by the gap between the legal powers conferred by the regulations and the guidance being promoted by the government, and in some cases enforced by the police.
Baker also raised a concern that the regulations might be ultra vires, citing an opinion from Blackstone Chambers that argued that the Public Health (Control of Disease) Act 1984 under which the regulations were made does not confer a power to authorise physical confinement, and expressly forbids ministers from exercising these powers, instead giving this authority to a magistrate. He suggested the government should come up with a contingency plan in case the regulations are quashed by a judicial review.
Coming up this week
This week in Parliament will see Department for International Trade ministers face questions in the House of Commons on Tuesday.
The BEIS Select Committee and the Treasury Select Committee will hold sessions on Thursday and Friday focusing on the impact of coronavirus on businesses, workers and the economy.
The Private International Law Bill will have its Committee Stage in the House of Lords on Thursday.
If you made it this far
Susan Acland-Hood, chief executive of HMCTS has written a blog on the challenges the court faces during the coronavirus pandemic.