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Westminster update: Nationality and Borders Bill passes second reading
Your weekly update from the Law Society’s public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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1. Nationality and Borders Bill passes second reading
The two days of Commons second reading debate on the Nationality and Borders Bill concluded on Tuesday 20 July, with the legislation passing by 366 votes to 265. The DUP supported the government on the bill, with all other parties opposed – however, there were some notable Conservative abstentions, in particular the former Immigration Minister Caroline Nokes, who criticised the bill.
The Law Society briefed before the debate and saw many of our points reflected during proceedings. Shadow Immigration Minister Bambos Charalambous, observed that “the Law Society of England and Wales warned yesterday that the bill risks putting England’s global reputation for justice at risk,” and went on to accuse the bill of “doing nothing to address the crisis in our asylum system”.
The SNP spokesperson for Justice and Immigration Anne McLaughlin spoke of the importance of the 1951 refugee convention and the UK’s part in creating it, then quoted directly from our briefing that it is “vital that the UK applies, and is seen to apply, a convention that it willingly became a party to.”
She went on to agree that our legal standing on the international stage relies on this concept and closed by calling the Home Secretary’s language “calculated and irresponsible”.
Many MPs – particularly on the Labour benches, observed that the Bill will likely breach the 1951 refugee convention and made reference to the criticisms from the UN High Commissioner for Refugees and UN Refugee Agency.
Nick Thomas-Symonds, the shadow home secretary, agreed with the SNP that, as the government has claimed it does not wish to breach refugee convention, there should be an interpretation clause in the bill to “ensure that all the provisions follow refugee case law and the refugee convention as it is.”
Immigration Minister Chris Philp, who closed the debate, invited opposition members to “study article 31 of the refugee convention, which makes it clear that it is permitted to impose penalties where someone has not come “directly” from a place of danger and where they had a reasonable opportunity to claim asylum somewhere else.” He argued repeatedly that the measures in the bill are wholly consistent with the UK’s international obligations.
2. Law Society secures amendments to Leasehold Reform Bill
On Tuesday 20 July this week the Leasehold Reform (Ground Rent) Bill had its report stage debate in the House of Lords, which saw the agreement of a series of amendments brought by the government that addressed key recommendations of the Law Society.
These amendments, which removed service charges from the definition of rent and excluded 'rack rent' leases from the scope of the bill, came about as a direct consequence of the Law Society’s work with Lord Young of Cookham (Conservative) at committee stage and in the lead up to report stage.
We worked with Lord Young to draft amendments addressing these points, which were then put to the minister, Lord Greenhalgh, who agreed to bring forward government amendments on the same points which were agreed by the House of Lords during the debate.
Report stage also saw the tabling of another amendment by Lord Etherton (Crossbench), supported by the Law Society, excluding lease variations that represent a deemed surrender and regrant from the scope of the bill.
Despite initial scepticism, during the debate the minister said he had “actually changed my position a little in the course of listening carefully to… Lord Etherton”, and said he would consider bringing forward a government amendment on this issue at a future stage.
The Law Society was also mentioned by the minister during his remarks on the amendment to exclude service charges from the definition of rent.
3. Peers debate future EU-UK relationship
Thursday 22 July saw members of the House of Lords debate the European Union Committee’s report on “The future UK–EU relationship on professional and business services”. Legal services were mentioned a number of times during the debate as constituting a key part of the professional and business services sector.
Baroness Hayter of Kentish Town (Labour) noted that while the Trade and Cooperation Agreement (TCA) contains positive provisions for legal services, such as the ability for UK lawyers to practise UK and international law under home title anywhere in the EU without requalification, this access remains subject to national restrictions.
The Minister, Lord Callanan, argued that the TCA includes a number of wins for UK legal services, including “unprecedented provisions that will help ensure that UK law remains popular and competitive as the governing law of choice for commercial contracts worldwide.”
Baroness Hayter also expressed concern regarding the absence of an agreement on accession to the Lugano Convention. The minister said that the government “continue to maintain that we meet the criteria for accession to the Lugano Convention”, and noted that while the European Commission has given notice that it is not in a position to give consent to UK accession, member states have not yet been given an opportunity to vote on that position.
4. Commons debate Building Safety Bill
The Commons debated the second reading of the Building Safety Bill on Wednesday 21 July. Opening the debate, the Secretary of State for Housing, Communities and Local Government Robert Jenrick said the bill will help to create “a building safety regime that delivers high standards of safety for people’s homes, while providing reassurance to leaseholders”.
Responding for Labour, the Shadow Secretary of State for Housing Lucy Powell said, “the bill betrays leaseholders who will still face life-changing costs for problems that they did not create and who are trapped in unsellable, uninsurable and unmortgageable homes”.
MPs from across the House also voiced concerns that the bill does not contain sufficient support for leaseholders.
Stephen McPartland (Conservative) said “we cannot continue to abandon leaseholders, we must support them, but the bill does not do that”. McPartland singled out the need for greater reassurances for people living in buildings below 18 meters which the government has previously stated do not qualify for government grants to remove dangerous cladding.
Royston Smith (Conservative) asked why insurers have been “let off the hook” by not being required to cover the costs of remediation. Meanwhile Rebecca Long Bailey (Labour) said the only way to protect leaseholders was for the government to cover the costs of remediation funding upfront.
5. Judicial Review and Courts Bill published
Wednesday 21 July also saw the publication of the Judicial Review and Courts Bill, which seeks to reform judicial review in two main ways.
Firstly, the bill will allow judges in judicial review cases to suspend the effects of a quashing order, or to limit or remove the retrospective effect of quashing orders.
While the government has claimed that the bill will maintain judicial discretion over the application of these powers, the bill includes a soft presumption in favour of suspension or limiting/removing retrospective effect of a quashing order if this would offer “adequate redress”.
Secondly, the bill includes a clause aimed at reversing the ‘Cart’ judgment, removing the ability for individuals to seek a judicial review in the High Court of a decision by the Upper Tribunal to refuse permission to appeal.
The government has indicated that it sees the clause in this bill reversing Cart as providing a model for future ouster clauses that will ensure that Parliament’s intention in passing such clauses is given effect by the courts.
In addition to the judicial review provisions, the bill also contains a number of provisions aimed at streamlining court processes and hearings, including:
- allowing defendants to plead guilty and accept pre-agreed punishment online for summary offences
- removing the defendant’s appearance in the Magistrates’ Court for indictable-only offences, and
- establishing an online procedure rules committee
The Law Society has concerns that the introduction of prospective-only remedies would deny redress to previous victims of unlawful state action, and could have a chilling effect on justice by deterring individuals from bringing legal challenges in the knowledge they might not benefit from any remedy provided.
We are also concerned about the prospect of a new wave of ouster clauses, which would damage access to justice and the rule of law.
There are rare, exceptional circumstances when it is appropriate for the state the circumvent the courts, which always require strong justification. Parliament will need to think very carefully about the potential impact of any such proposals on the rule of law.
Parliament rose for recess on Thursday 22 July and is not due to return until 6 September, but the Law Society will continue to work closely with MPs and peers to influence bills and inquiries:
The bill started its progression through the House of Lords and will have its second reading on Tuesday 14 September. We will be briefing key peers ahead of the next debate.
The next stage for the bill will be its report stage, which will begin on Monday 6 September.
The bill was introduced into the House of Lords on Wednesday 21 July and will have its second reading on Tuesday 7 September. We will be briefing key peers ahead of the debate.
The Law Society will be submitting written evidence the Women and Equalities Committee’s inquiry into co-habiting couples by the deadline of 31 July.
We will also be responding to a Ministry of Justice consultation on proposals to increase probate fees, which will run until 23 September.
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