Westminster update: Law Society concerns over Criminal Justice Bill

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Following the government's announcement of Operation Early Dawn dealing with the increasing prison population, we published guidance to help solicitors manage sudden changes in case dynamics.

What you need to know

1. Criminal Justice Bill: Law Society concerns raised in Commons

Wednesday 15 May saw the Criminal Justice Bill return for its first day of report stage.

Since committee stage, the government has accepted there are issues with overseas prisoner transfers provisions in the bill.

The minister tried to answer some of the concerns raised previously, such as whether the provisions are compatible with the European Convention on Human Rights, and whether prisoners will still be able to access appropriate legal advice from abroad.

However, MPs from both sides of the chamber acknowledged that these provisions still lack detail and proper planning.

The minister, Laura Farris, set out the government’s position on the issue of prisoner transfers, in particular the transfer criteria.

She said the government agrees that not all prisoners will be appropriate for transfer to rented prisons overseas, and that the proposal for foreign prisoner transfer will extend to approximately 600 prisoners – equivalent to just under 0.5% of the entire prison estate.

She said the lord chancellor has confirmed that the use of these powers requires a valid international agreement, and any such agreement would be put before parliament as a treaty.

Sir Bob Neill (Conservative) said “some of us have marked misgivings about the whole concept, which speaks a little more of gimmickry than anything likely to ease the real pressures on our prisons.”

He noted that we had raised two issues:

• the bill as written does not ensure that prisoners are able to access legal advice in a proper way
• there is a lack of clarity in the bill as to what is to be done about family visits

The shadow minister, Alex Cunningham, said the bill failed to provide detail on “exactly how the scheme to transfer prisoners abroad would work, who the partner countries would be, and where their responsibilities would lie.”

On the issue of transfer of prisoners provisions being compatible with Convention rights, the minister said the government is "keenly aware of those [ECHR] obligations. I am sorry that I cannot give more detail on that, only the extra reassurance that the lord chancellor has insisted that prisoners will retain all their rights under the convention.”

2. Post Office Bill faces criticism in the Lords

The Post Office (Horizon System) Offences Bill had its first debate in the House of Lords on Monday 13 May.

While the cross-party support seen in the Commons continued in the upper chamber, there were some serious concerns raised by former judges over the constitutional implications of the legislation.

The minister Lord Offord was clear in his opening remarks that “the government’s position is that it will be parliament and not the government that is overturning the convictions: there will be no intrusion by the executive into the proper role of the judiciary”.

He argued in particular that “this legislation does not set any kind of precedent for the future” and it “is in no way a reflection on the courts or the judiciary”.

Despite these assertions, long-time campaigner for victims of the scandal Lord Arbuthnot (Conservative) added his voice to the list of those concerned that the bill puts parliament in an uncomfortable position.

He argued that the bill “does form a constitutional precedent, which would take us in the direction of totalitarianism”.

These arguments were also made strongly by the former lord chief justice Lord Burnett, and by former master of the rolls Lord Etherton (both Crossbench).

Lord Etherton noted “the repeated suggestions from the government and the opposition that it provides no precedent are perhaps the clearest indication that its proponents know that it is wrong in principle to ask parliament to quash convictions”.

Members were also keen to discuss the omission of cases which have been considered by the Court of Appeal or were brought by the Department of Work and Pensions (DWP).

Lord Sikka (Labour) pushed for their inclusion in the bill as “just like the Post Office and the CPS, the DWP used Horizon-generated data and faced lies and cover-ups from the Post Office.”

The bill now moves to committee stage where peers will table amendments.

We will continue to work closely with parliamentarians to ensure that the views of the sector are heard.

3. Renters Reform Bill: peers disappointed at delays to abolishing section 21

On Wednesday 15 May, the Renters Reform Bill had its second reading in the Lords.

The debate centred around the lack of housing supply, fixed-term renting and the abolition of section 21 evictions.

Our concerns about the impact on the courts system if the reforms in the bill are not accompanied by appropriate funding were highlighted by two peers, Baroness Lister (Labour) and Baroness Thornhill (Liberal Democrat).

Both echoed our concern that without investment the government’s ambitions will not be realised.

Abolition of section 21 was a particular focus for debate.

The minister Baroness Swinburne reiterated the government’s commitment to abolishing section 21 evictions but recognised the need to strengthen section 8 repossession to give landlords the confidence they can repossess their properties from bad tenants.

However, the majority of peers noted their disappointment that the bill will not abolish section 21 evictions directly.

The debate moved on to fixed-term tenancies, with peers debating back and forth whether the six-month limit was sufficient to provide tenants with the security they needed.

Baroness Swinburne noted the government’s willingness to listen to possible exemptions to this clause, with Baroness Taylor (Labour) and Baroness Pinnock (Liberal Democrat) expressing the need to allow victims of domestic violence to escape potentially unsafe accommodation.

The bill will next move on to its committee stage.

Both Labour and the Liberal Democrats stated they will not stand in the way of the bill, but several peers outlined their intentions to table amendments.

4. Justice questions: lord chancellor grilled on legal aid

On Tuesday 14 May, the lord chancellor took questions from MPs on topics from Rwanda to legal aid and court backlogs.

Alison Thewliss (SNP) asked early into the session whether the government will provide lawyers with guidance on the criminal justice implications of the Safety of Rwanda (Asylum and Immigration) Act.

Thewliss criticised the government for removing migrants from Scotland to England and questioned whether this was done so they could not access legal aid.

The lord chancellor responded that the act does not apply widely to criminal law and reassured the house that the government is investing in caseworkers to oversee legal aid cases.

Mohammad Yasin (Labour) highlighted the lack of housing legal aid providers in his local borough of Bedford.

He asked whether the protections being introduced in the Renters Reform Bill and the Leasehold and Freehold Reform Bill will be meaningless without sufficient investment in legal aid.

The lord chancellor noted current levels of legal aid investment and offered to meet him to discuss further.

Alistair Carmichael (Liberal Democrat) highlighted the average backlogs in magistrates’ courts of 1,954 cases, and questioned whether these long-term backlogs are acceptable.

The lord chancellor agreed that the backlog is an important issue but placed a greater emphasis on the pressures across the justice system.

Chalk showcased the government's efforts to increase capacity through Nightingale courts, hiring more judges, and raising the judicial retirement age.

Coming up:

We are working on a number of bills in parliament:

• Victims and Prisoners Bill began its report stage in the Lords on 16 April
• Renters (Reform) Bill will have its committee stage in the Lords, date to be confirmed
• Criminal Justice Bill began its report stage in the Commons on 15 May
• Leasehold and Freehold Bill will have its report stage in the Lords on 5 June
• Sentencing Bill will have its committee stage in the Commons, date to be announced
• Data Protection and Digital Information (No. 2) Bill will have its report stage in the Lords on 10 June
• Arbitration Bill will have its report stage in the Lords, date to be announced
• Strategic Litigation Against Public Participation Bill will have its report stage in the Commons on 7 June
• Post Office (Horizon Systems) Offences Bill will have its committee stage in the Lords on 3 June
• Litigation Funding Agreements (Enforceability) Bill will have its report stage in the Lords on 4 June