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Westminster update: Lord chancellor quizzed on COVID-19 and the constitution
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. Lord chancellor quizzed on COVID-19 and the constitution
Last Wednesday the lord chancellor, Robert Buckland, appeared alongside Susan Acland-Hood, HMCTS chief executive, to give evidence to the Lords Constitution Committee on the constitutional implications of coronavirus. The session focused on virtual hearings and the court system’s response to the pandemic.
We were referenced twice during the session: once during a question from Lord Sherbourne (Conservative) on the impact of virtual proceedings on access to justice, and once by the lord chancellor in outlining those organisations he has been engaging regularly with throughout the pandemic.
In response to Lord Sherbourne’s question - which cited our president’s concerns about access to justice in virtual proceedings - the lord chancellor noted that there is support available to people who lack technical confidence, and that judges retain discretion to opt for a traditional hearing if they feel virtual proceedings would not be suitable for the participants in a case.
He also expressed his view that there is no clear evidence that conclusively demonstrates that virtual hearings are inferior to traditional ones, with Susan Acland-Hood adding that, for example, people on the autism spectrum often more comfortable giving evidence via video link rather than in person. He said that almost uniquely across the world England and Wales had been able to keep the wheels of justice turning through the pandemic.
The lord chancellor said he recognised that legal aid practitioners had been particularly hard hit during the pandemic, and said he is looking to make an announcement soon regarding targeted support for legal aid firms.
On the subject of possible measures to help clear the court backlog, the lord chancellor said that the jury system is something that we should look to preserve, and noted that any move to extend court operating hours would only be a temporary measure.
2. Attorney general faces Justice Select Committee
Last Tuesday attorney general Suella Braverman QC MP appeared before the Justice Select Committee for the first time. She was asked a wide range of questions regarding her experience going into the role, her priorities as attorney general, tweeting about individual cases, coronavirus legislation, conviction rates for domestic violence and serious sexual offences, disclosure guidelines and private prosecutions.
Chair of the Justice Committee Sir Bob Neill MP (Conservative) asked the attorney general what her priorities were while in the role.
Responding, Braverman said her priorities are threefold. Firstly, supporting the government response to coronavirus - she said this is likely to be an overarching feature of her work for some time.
Secondly, supporting the government through the transition period and the work on getting a free trade agreement with the EU.
Thirdly, her work to provide superintendence of the Crown Prosecution Service (CPS). Her three goals for the CPS are supporting cross-government efforts to improve outcomes for rape and sexual violence convictions and resolution, reforming and updating processes in relation to disclosure in a digital age, and increasing CPS resources.
Andy Slaughter MP (Labour) asked about measures on reducing the court backlog such as longer hours, more sitting days and more court, and asked how the attorney general saw the backlog being tackled.
In response, the attorney general said she was pleased by the recent announcement of the Nightingale Courts and this is a big step towards increasing court capacity. She noted the increased digital capacity which has been used in thousands of cases. She added that the increase in funding for the Ministry of Justice in terms of rebuilding their court estate would assist in tackling the backlog.
3. Commons passes Counter-Terrorism and Sentencing Bill
Last Tuesday the Counter-Terrorism and Sentencing Bill had its report stage and third reading in the House of Commons. The Bill was passed without amendment, and will now move on to the Lords.
We briefed MPs ahead of the debate and gave its support to a number of amendments which aimed to maintain the existing standard of proof required for imposing a Terrorist Prevention and Investigation Measure (TPIM), maintain the current two year limit on the duration of a TPIM, and prevent polygraph test results from being used as part of a decision to impose a TPIM.
All of these amendments were withdrawn without a vote, following a commitment from the Government to publish a review of multi-agency public protection arrangements before the Bill reaches the House of Lords.
Justice Select Committee chair Sir Bob Neill MP (Conservative) mentioned us by name and referenced our briefing when discussing his concerns about proposals for extending the use of polygraphs.
Addressing concerns about the use of polygraphs, justice minister Chris Philp stated that a negative polygraph test would never be sufficient on its own to justify a recall to prison. Instead such a result would simply be an indication for relevant authorities that further investigation is needed.
The minister argued that the proposals to lower the standard of proof required for imposing a TPIM are necessary to keep the public safe from all possible future threats, citing evidence given by assistant chief constable Tim Jacques to the Public Bill Committee. He also noted that despite these measures the existing judicial safeguards on the use of TPIMs, and the requirement that a TPIM be judged to be “necessary”, remain in place.
4. Means test review resumes after ministerial commitment
Last Monday our head of justice Richard Miller spoke at the All-Party Parliamentary Group on Legal Aid's meeting on coronavirus and legal aid, alongside justice minister Alex Chalk MP, shadow justice minister Karl Turner MP. and others from the sector.
The meeting was chaired by Karen Buck MP, and also heard from Amanda Pinto QC, chair of the Bar Council; Caroline Goodwin QC, chair of the Criminal Bar Association; Chris Minnoch, CEO of LAPG; and Emma Trevett of Young Legal Aid Lawyers.
During the session, justice minister Alex Chalk MP announced the recommencement of the legal aid means test review. He said access to early legal advice and the sustainability of the sector are his priorities.
The means test is a key issue and reviewing the capital and income thresholds are urgent priorities. He confirmed that the means test review has now restarted and will look to publish findings and a consultation on policy proposals in Spring 2021. He also confirmed that the criminal legal aid review will progress as soon as possible and statutory instruments to bring forward the accelerated items will be published imminently.
In response, Labour’s shadow justice minister Karl Turner MP said that legal aid is the foundation of our justice system. He reiterated the Labour Party’s support for a right to justice as proposed through the Bach Commission. He raised concerns regarding the sustainability of the sector, and said that while these concerns existed prior to COVID-19, the virus had exposed the cracks in our system. He argued that legal aid will not survive without drastic intervention.
Our head of justice, Richard Miller, noted three key factors facing the profession - cashflow, lost income, and an underlying crisis of sustainability. There is a need for all three of these to be addressed or there is a risk of system collapse. He said the longer it takes for remedial measures to be put in place, the bigger the risk for affected firms. Providing early advice on all matters will ensure less cases go to court, and will help deal with the backlog. Increasing the levels of the means test will also ensure people have access to legal advice at an earlier stage.
5. President speaks at APPG event on COVID-19 and justice
Last Tuesday Law Society president Simon Davis addressed a meeting of the APPG on Legal and Constitutional Affairs titled Coronavirus and the justice system: Should we allow coronavirus to change the way we do justice in the UK? The event was hosted by APPG co-chair Lord Hunt of Wirral, and also featured Amanda Pinto QC, chair of the Bar Council.
In his remarks Simon Davis argued that there will be an increased demand for legal advice as a result of the pandemic – for example, regarding housing possession cases and domestic abuse – but that at present the justice system lacks the resources to cope with this surge.
Both Simon Davis and Amanda Pinto expressed the view that virtual proceedings in courts are not suitable for all users of the justice system, and that care should be taken to ensure that vulnerable people are not excluded as a result.
Coming up this week
The Commons rose for recess at the end of last Wednesday, and is due to return on 1 September. However, the Lords does not rise until this coming Wednesday, so this week we shall see oral questions on probate, the new insolvency moratorium, and the Constitutional Reform and Governance Act 2010.
If you made it this far
The Law Commission this week published three reports relating to reforming leasehold and commonhold tenure.