Access to justice

Westminster weekly update: Lord chancellor gives evidence to the Justice Select Committee on the impact of COVID-19

Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.

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One thing you need to do

At the end of the transition period, the EU lawyers directives and EU laws will no longer apply. There will be significant changes for individual solicitors and firms, whether an agreement is reached on the UK-EU future relationship or not.

Solicitors and firms should act now to prepare for the end of the transition period – we’ve put together guidance on how you and your firm can prepare for 31 December. 

Five things you need to know

1. Lord chancellor gives evidence to the Justice Select Committee on the impact of COVID-19

On Tuesday 1 December, the lord chancellor, Robert Buckland QC MP, appeared before the Justice Select Committee to give evidence on the impact of COVID-19 on the courts and prisons.

The Law Society was praised by the lord chancellor for its work with its European counterparts to put in place post-Brexit agreements.

The lord chancellor said that extra funding in the Spending Review would allow progress to continue to be made on the courts backlog. This year’s settlement had provided “welcome certainty” for capital budgets, and also represented a “forward look at the demands on the court system." He also noted the importance of evidence in securing the funding settlement and helping with negotiations with the Treasury. The lord chancellor hoped that increased digitisation would also help to inform policy moving forward.

The lord chancellor confirmed the second stage of the criminal legal aid review will begin before the end of the year and the terms of reference are being worked on. When asked about reversing the 8.75% legal aid cut, the lord chancellor said the review was about looking at the system as a whole, not reversing a particular cut.

On the civil side, questions on eligibility were “on my radar”, as well as the operating framework and alternative dispute resolution. Early interventions, investment in the courts, and reviews of remuneration would all make a difference.

Legislation around remote remand hearings was being “looked at closely” and will change in the new year. Tailored solutions are being looked at for the interim and the lord chancellor accepted this will involve money. When asked about release under investigation, the lord chancellor said the Home Office has been consulting on this and legislation will be introduced “as soon as possible”. The lord chancellor wanted to put out the clear message that the courts were “ready to deal with fresh cases”.

On Brexit, the lord chancellor said he was working to ensure there is a minimal gap on accession to Lugano and in his view the government has done everything it can to prepare domestically. He praised the Law Society for engaging with its European counterparts to put in place arrangements to enable legal professionals to carry on their work.

Watch the session in full

2. Committee report on Building Safety Bill cites Law Society evidence

Last week the Housing, Communities and Local Government Committee published the report of its pre-legislative scrutiny inquiry on the draft Building Safety Bill, which aims to address the flaws in the current building safety regime identified by the Independent Review of Building Regulations and Fire Safety.

The Committee’s report welcomes the Bill in principle, but highlights concerns with lack of detail on key elements. The report recommends that the government publish as much key information as possible on the new regime in the Bill itself, rather than in secondary legislation, and calls on the government to provide a clear timetable for the introduction of the new regime to give clarity to stakeholders.

The report also addresses the issue of leaseholders being required to pay for the costs of cladding removal on their blocks, by calling on the government to publish proposals for funding the costs of remediation in a way that passes none of these costs on to leaseholders.

The Law Society provided written evidence to the committee as part of its inquiry, which was referenced in the report. The report highlights “very positive submissions on the introduction of the new homes ombudsman scheme”, referencing the submission of the Law Society on this point.

Our submission stated our support for the proposed New Homes Ombudsman, which will serve as a system of redress and develop a code of practice with developers to set standards on sales, marketing, and the standard and quality of workmanship.

Read the report

Read our summary of the proposals in the draft Building Safety Bill

3. Government pressured to consult with the Law Society on Brexit legislation

On Monday 30 November, the House of Lords considered the European Union Withdrawal (Consequential Modifications) (EU Exit) Regulations 2020 in Grand Committee. It is one of the many statutory instruments laid to prepare for the end of transition, and makes various consequential amendments and repeals in respect of retained EU law, relevant separation agreement law and other EU-derived domestic legislation.

Shadow Deputy Leader of the House of Lords Baroness Hayter asked whether the government consulted with “organisations such as the Law Society and the Bar Council, and European law specialists in particular” ahead of drafting the legislation. The Cabinet Office minister Lord True said he did not have the full details of the consultation outside the devolved authorities.

The Law Society has been in regular contact with the Ministry of Justice on Brexit legislation, as well as opposition parliamentarians in both houses. We have presented expert analysis on relevant instruments, and where necessary, briefed parliamentarians on our concerns. However, the majority of these instruments have been highly technical and have not implemented any new policy.

Baroness Hayter also raised concerns of the lack of access to the Lugano framework from 1 January 2021 onwards, with the minister saying he will write to her separately.

Read the transcript

4. Lord chancellor's statement on courts and tribunals recovery

On Thursday 3 December, the lord chancellor, Robert Buckland QC MP, gave an oral statement to Parliament on the recovery of courts and tribunals.

The lord chancellor opened the statement, running through the support for the courts system announced earlier in the year and provided updates on the impact this investment was having. The backlog in the magistrates’ courts has dropped substantially. The Crown Court was also hearing more cases than before the pandemic and the family courts have had a record number of sittings.

£30m was approved last week for the financial year to open a further 40 Nightingale courtrooms and bring a further 40 Crown Court rooms safely into use for jury trials. 260 jury trial courtrooms have also been opened safely, in addition to a further 125 courtrooms being used for non-jury trials.

Updating on the number of cases being deal with in the courts, the lord chancellor said the family courts are in some weeks dealing with more cases than before the pandemic. In tribunals, mental health and special educational needs tribunals had operated at or near pre-COVID levels. Employment tribunals had also returned to pre-COVID levels.

The lord chancellor also spoke about the Spending Review settlement. New money for the criminal justice system includes £337m to bolster Crown Courts and support victims. £76m will go to increasing family and employment tribunal capacity and £43m will go to ensure courts and prisons remain COVID safe.

There was still a “long way to go” but the lord chancellor would continue to do all he could to restore the justice system.

Read the statement

5. Lords return amended Internal Market Bill to the Commons

On Wednesday 2 December, the Lords debated the UK Internal Market Bill at third reading, having already made amendments covering devolution, Northern Ireland, and mutual recognition of goods.

The most crucial amendments were made in Committee, when the entirety of Part 5 of the Bill (Clauses 42–47), which would have given ministers the power to breach the UK’s obligations under the Withdrawal Agreement, was removed.

Forty four Conservative peers voted against the government, including former party leader Lord Howard, as well as Labour, the Liberal Democrats, the SNP, the Greens, and a significant number of crossbenchers. The Law Society had briefed against these clauses throughout the passage of the Bill.

The Bill will now return to the Commons, where the Lords amendments will be debated. While the government is likely to reintroduce these contentious elements, Lords across parties have made clear their intention to repeatedly oppose any reinstatement of Part 5 of the Bill. However, if a deal with the EU is achieved, the offending sections may be dropped.

Read the transcript

Coming up this week

On Monday, the House of Commons will consider the Lords' amendments to the UK Internal Market Bill. The Public Health (Coronavirus) (Protection from Eviction and Taking Control of Goods) (England) Regulations 2020 will also be discussed.

The PACAC oral evidence session will hear from the lord chancellor, Robert Buckland QC MP, on the government's Constitution, Democracy and Rights Commission. Oral evidence on the reform of the Gender Recognition Act will be heard on Wednesday. Justice and Attorney General questions will take place on Tuesday and Thursday respectively. 

In the Lords, the Trade Bill enters report stage on Monday. The Finance Bill sub-committee oral evidence session with Jesse Norman MP also takes place. On Wednesday, the Lords will consider the Commons' amendments to the UK Internal Market Bill.

View the upcoming parliamentary business

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