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Westminster weekly update: Supreme Court gives evidence to Constitution Committee
One thing you need to do
Read our guidance explaining how the transition period in the UK-EU relationship, beginning 1 February, will affect various areas of law.
Five things you need to know
1. Supreme Court justices give evidence to the Constitution Committee
Last Wednesday, the president and deputy president of the Supreme Court, Lord Reed and Lord Hodge, appeared before the House of Lords Constitution Committee. A key area for discussion was the fallout from recent controversial Supreme Court cases and the government’s proposed Constitution, Democracy and Rights Commission, but the session also touched on access to justice (including the recent criminal legal aid review announcement), judicial diversity, public outreach and the impact of Brexit on the law.
In addition to the court’s ongoing priorities of maintain the standing, independence and accessibility of the court, Lord Reed outlined five personal priorities for his presidency: improving diversity on the court; strengthening the relationship between the Supreme Court and the courts below; developing an international strategy for the court; strengthening links between the Supreme Court and Parliament; and leading the court through the Brexit transition.
The constitution, and the role of the Supreme Court in upholding constitutional principles, was a particular focus of attention. Lord Reed rejected the characterisation that the Supreme Court has been asserting the power of judges, instead stating that it is asserting the power of Parliament by giving effect to legislation such as the Human Rights Act. Lord Reed noted that judges are already well aware of the risk that judicial reviews may be being brought on political grounds, and argued that a series of recent judgments by the divisional court and Court of Appeal rejecting grounds for review on this basis demonstrated this awareness amongst judges.
Lords Reed and Hodge also expressed concerns about the prospect of political hearings for judicial appointments, with Lord Reed rejecting a “US-style” system as unacceptable. Lord Hodge argued that politicised hearings could result in the emergence of judges who believe they have a mandate to insert their political leanings into their decision-making, and could do damage to the international reputation of the UK judiciary.
Beyond constitutional issues, Lords Reed and Hodge outlined practical steps they are taking to encourage more women to apply to the court, and Lord Reed outlined some of the complications that could be posed by the power in the European Union (Withdrawal Agreement) Act allowing lower courts to review and depart from EU case law. Lord Reed also stated that the court is “anxious” to ensure people have proper access to justice, and noted the lord chancellor’s recent announcement of what he termed a “significant” increase in legal aid funding.
2. Government publishes US FTA negotiation objectives
Last Monday, the Department for International Trade published its negotiating objectives for a US-UK trade deal. Professional services are highlighted as an important area for the UK early in the introductions, and PBS are picked out as a sector that will benefit from an FTA. The document says an FTA "could allow professionals to move more easily and support recognition of professional qualifications, for example in accountancy and the legal profession."
On wider trade in services provisions, the government aims to secure ambitious commitments from the US on market access and fair competition for UK services exporters; agree best-in-class rules for all services sectors, as well as sector-specific rules, to support the UK’s world-leading services industry, including key UK export sectors such as financial services, professional and business services and transport services, and to ensure certainty for UK services exporters in their continuing access to the US market and transparency on US services regulation.
The objectives also cover intellectual property, dispute settlement and temporary movement of people.
3. Clinical negligence raised in the Lords
Last Tuesday, Lord Storey (Liberal Democrat) asked a question in the House of Lords regarding the costs of clinical negligence. He argued that clinical negligence claims are running at around £1.8bn a year, and forecast to rise to £3bn. He asked whether the government is concerned that, by paying NHS defence legal costs regardless of the outcome of the claim, the Government is creating “perverse incentives that reward ‘deny, defend, delay’ behaviours by lawyers.”
Responding on behalf of the government, Lord Bethell (Conservative) noted that when people are harmed under NHS care, the impact can be devastating, and that the government has a clear duty to shoulder that responsibility. He noted that costs for clinical negligence are rising and the government is working to address this and will bring forward a publication in due course.
Lord Watts (Labour) asked whether in cases of negligence which are down to staff shortages in hospitals, whether that shortage of staff is a failure for the hospital or a failure of the government. Responding on behalf of the government, Lord Bethell (Conservative) said that some of the biggest payments for clinical negligence are made in the area of obstetrics, where lessons should and could be learned.
Lord Faulks (Non-Afl) asked whether the government would review the question of the discount rate. Responding on behalf of the government, Lord Bethell (Conservative) said that the discount rate is a critically important part of this complex area. He noted that the increase to the discount rate was unwound in August 2019 and the Government projects that it will partially reduce the impact of future claims.
Baroness Brinton (Liberal Democrat) asked about the impact on those affected by clinical negligence and how cases can take significant time to be resolved. Responding on behalf of the government, Lord Bethell (Conservative) said that it was right to point out the human cost as well as the financial one.
4. Minister discusses trade in legal services
Last Thursday, during international trade questions in the House of Commons (which we briefed before), SNP international trade spokesperson Stewart Hosie asked what progress was being made to ensure that legal services trade between the UK and the European Union can be maintained after the end of this year. International trade minister Greg Hands, responding, identified mutual recognition of professional qualifications as “one of the key aspects we are looking at in free trade agreements with counterparties across the world.”
Hosie followed up by asking if there would be a specific focus to ensure UK lawyers will continue “to be protected by legal professional privilege in the European Union“ and to “ensure that the associated disincentive to trade in legal services is removed.” Hands said that this was a matter for Taskforce Europe, but said he would pass the question on. He went on to say that “the Department for International Trade team promote trade in legal services, particularly the mutual recognition of qualifications” in all their talks.
5. Select Committees members confirmed
Last Monday members of Select Committees for the new session of Parliament were confirmed in the House of Commons.
John Howell (Conservative), Ellie Reeves (Labour), and Andy Slaughter (Labour) will return as members of the Justice Select Committee, as will Marie Rimmer (Labour), who served as a member of the Committee from 2015 to 2017. Former justice minister and shadow solicitor general Maria Eagle has also been confirmed as a member.
Several newly-elected MPs have also been appointed to the Committee, including former barrister Sarah Dines (Conservative), former criminal defence solicitor James Daly (Conservative), former Youth Justice Board and Sentencing Council member Robert Butler MP (Conservative), Kenny MacAskill (SNP) and Dr Kieran Mullan (Conservative).
Sir Bob Neill (Conservative) will continue to chair the Justice Committee.
Other Committee members include:
Home Affairs Committee: Janet Daby, Dehenna Davison, Stephen Doughty, Ruth Edwards, Laura Farris, Simon Fell, Adam Holloway, Tim Loughton, Holly Lynch and Stuart C McDonald.
Public Accounts Committee: Gareth Bacon, Kemi Badenoch, Olivia Blake, Sir Geoffrey Clifton-Brown, Dame Cheryl Gillan, Peter Grant, Mr Richard Holden, Sir Bernard Jenkin, Craig Mackinlay, Shabana Mahmood, Gagan Mohindra, Sarah Olney, Bridget Phillipson, Nick Smith and James Wild.
Foreign Affairs Committee: Chris Bryant, Chris Elmore, Alicia Kearns, Stewart Malcolm McDonald, Ian Murray, Andrew Rosindell, Bob Seely, Henry Smith, Royston Smith and Graham Stringer.
Coming up this week
This week in the House of Commons, Chancellor Rishi Sunak will deliver the Budget statement on Wednesday, with debate on the Budget continuing on Thursday.
We'll be hosting a post-Budget day briefing on 12 March, from 12:30pm to 1:30pm, analysing the key aspects of the statement and what they mean for legal services. If you would like to participate please email email@example.com for further details.
In the House of Lords, today will see oral questions on the introduction of the Domestic Abuse Bill, announced on 3 March.
If you made it this far
Take action by raising concerns on the Ministry of Justice's proposals on the criminal legal aid review and urge the lord chancellor to address the deepening crisis in the criminal legal aid profession.