Westminster update: lady chief justice on investing in the rule of law
SRA proposals to remove client accounts
Read our response to the SRA's proposals to remove client accounts.
We have warned against the proposal to move towards third-party managed accounts in our response to the SRA’s consultation on client money in legal services, which was launched following the collapse of the firm of Axiom Ince.
Lady chief justice: rule of law does not come cheap
The lady chief justice, Dame Sue Carr, gave evidence on the work of the courts to the Justice Select Committee on Wednesday 26 February.
She used the appearance to emphasise:
- the importance of funding the justice system
- defend the independence of the judiciary
- acknowledge the challenge of improving diversity among judges
Asked if we are reaching the point where the backlogs across the courts are threatening access to justice, Lady Carr acknowledged that the backlogs were reaching a serious point in every jurisdiction and more needs to be done to clear them, advocating for a “invest to save” approach.
The lady chief justice referenced the Gauke and Leveson reviews of sentencing and the Crown Court backlog and said the judiciary is ready to implement any changes that emerge from these provided appropriate resources are made available.
Peers asked the lady chief justice about her recent criticism of the prime minister and leader of the opposition for attacking an asylum decision made by the judiciary.
Lady Carr firmly emphasised that the judiciary must be respected and while it is important for parliament to debate if laws need to change, this must involve factual debate, especially as the judiciary cannot respond to attacks upon it.
Turning to diversity in the judiciary, the lady chief justice was pressed on efforts to make judges representative of wider society.
She noted that progress is being made and work is being done with the professions, universities and schools to improve social mobility.
However, progress is not being made on the appointment of black judges for reasons “we are not able to work out".
MP raises our concerns again during Assisted Dying Bill debates
Our key recommendation for further consultation on capacity in the context of assisted dying was again raised during committee stage proceedings for the Terminally Ill Adults (End of Life) Bill on Wednesday 26 February.
Debates around assessing whether an individual has the capacity to make a settled, informed decision to end their lives following a terminal diagnosis was back on the table as MPs argued whether the bill’s use of the Mental Capacity Act (MCA) definition is sufficient.
Daniel Francis (Labour) spoke on amendment 322 which reverses the burden of proof in the Mental Capacity Act, so that those assessing a person’s capacity would not be able to assume that the person has capacity without evidence.
Francis mentioned our briefing at length, “I remind members of what I have said previously about the position of the Law Society: the issue of what capacity should mean, and how to assess it, is central to the bill.
"The Law Society considers that the bill should be clearer in its approach to capacity for the purposes of ending a terminally ill person’s life...
"The Law Society’s recommendation is that before the clause becomes law, a comprehensive consultation should be undertaken to allow relevant experts to share views on the appropriate definition of capacity for the purpose of the bill.”
Dr Simon Opher (Labour) came back to say that the MCA definition is widely used by medical practitioners, meaning that changing it could make the bill less safe as practitioners would need to familiarise themselves with new regulations.
Naz Shah (Labour) backed criticisms of the bill’s current approach on capacity.
Shah noted evidence from Alex Ruck Keene KC highlighting that it is a myth that mental capacity is well understood.
Shah also leant on other expert evidence noting that several aspects of the way that the assessments are being carried out that are not compliant with the Mental Capacity Act.
She argued that, if the committee already have issues with how the act is being implemented in the everyday work of the NHS and psychiatrists, then mistakes will be made if the bill goes through as it is.
The committee will continue with line by line scrutiny over the coming weeks as MPs look to debate and strengthen the bill’s safeguards.
Post Office-Horizon scandal: role of the justice system questioned
The Law Society was mentioned in on debate 27 February on the Post Office compensation scheme.
The debate focused on the difficulties with the compensation scheme, the conduct of Post Office in-house lawyers and the fact that a commitment to provide compensation which is “full and fair” is not the traditional stance taken by a defendant in our adversarial system of civil litigation.
Peers pressed the government to respond to the Business and Trade Committee’s January report which recommended, among other things, that the Department for Business and Trade should take over responsibility for the Horizon Shortfall Scheme.
Lord Hastings (Crossbench) mentioned the role of the justice system in the scandal.
He noted that “there is another actor in this horror, besides the Post Office and Fujitsu: the courts. It raises the very ugly case that potentially 1,000 courts heard 1,000 cases and thought it was okay. At what point did the justice system ask, “What the hell is going on?” Why is every court so disconnected from every other one?”
Baroness Brinton (Liberal Democrat) noted our briefing note from last year when discussing the impact of the Post Office (Horizon Systems) Offences Act.
She said that when parliamentarians were considering the bill, our note set out the reasons why some victims of the scandal were not included in the annulment of convictions.
She raised her concerns about victims being excluded from redress, noting: “as the Law Society has commented, it is difficult for parliament to insist on things with the justice system.”
The business and trade minister Baroness Jones responded for the government but did not address the courts and judges point raised by peers.
She gave an update on the redress scheme, noting that since June 2024, 1,409 more victims have settled their claims.
Approximately £663 million has now been paid to over 4,300 claimants.
Coming up
We are working closely with MPs and peers to influence a number of bills before parliament:
- Arbitration Bill gained royal assent on 24 February
- Border Security, Asylum and Immigration Bill will continue committee stage in the Commons on 4 March
- Children's Wellbeing and Schools Bill will have its report stage in the Commons, date to be confirmed
- Data (Access and Use) Bill will begin its committee stage in the Commons from 4 March
- Employment Rights Bill will have its report stage in the Commons on 11 March
- Mental Health Bill began its committee stage in the Lords on 14 January
- Product Regulation and Metrology Bill will have its second reading in the House of Commons, date to be confirmed
- Renters' Rights Bill will have its committee stage in the Lords, date to be confirmed
- Terminally Ill Adults (End of Life) Bill began its committee stage in the Commons on 21 January