Courts and Tribunals (Online Procedure) Bill [HL]

Lord Beecham Excerpts

Tuesday 14th May 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant in my former solicitors’ practice, as recorded in the register, and to my less-than-complete mastery of the digital process. I may not be alone in that in your Lordships’ House. Clearly there is a case for an appropriate development of the use of technology, not least because of the pressures on the system, enhanced as they have been by the closure of many courts and the inconvenience thereby occasioned to litigants. But this must not be at the expense of access to justice, or indeed a further dilution of the provision of legal aid and advice.

Why have the Government chosen to go well beyond the recommendation of Lord Justice Briggs in the 2016 Civil Courts Structural Review that the online courts should be used for money claims with a value of up to £25,000? Given the number of potential cases across the legal system covering both courts and tribunals, and the diverse character of those cases and of the parties involved, should not the new approach be piloted before being rolled out across the whole country and the whole system?

While the Online Procedure Rule Committee will design the rules, with the requirement that at least three of its proposed five members support the proposed rules, they can be required by the Lord Chancellor to make rules, and he or the Secretary of State will be empowered to amend, reveal or revoke legislation where necessary and/or desirable to facilitate the making of rules. What process is envisaged for the exercise of such powers, and will change be effected through the affirmative procedure?

Given the wide range of application of the new procedure, why is the committee restricted to five members? The Civil Procedure Rule Committee has 16 members, the Family Procedure Rule Committee has 15 members and the Tribunal Procedure Committee has nine. Here a much smaller figure is proposed. Will the Government ensure that there is gender balance within the composition of the committee and its staff, and that the Bar and solicitors are represented, together with representatives from the advice sector and, as has been suggested this afternoon, from the judiciary itself? And will they look again at the suggestion in Lord Justice Briggs’s report that the membership of committees should include in relevant cases members with relevant skills such as engineering and IT? Given their declared intention for the committee to be independent, how will the Government exercise their power,

“to require the OPRC to make online rules to achieve the specified purpose”,

within a specified time? The Law Society points out that Clause 1(3)(d) refers to the use of,

“innovative methods of resolving disputes”.

What do the Government have in mind in that area?

Clause 1(6) and (7) authorise rules to provide for proceedings of a specified kind not to be governed by, or to cease to be governed by, rules, and instead to be governed by civil procedure and other existing rules. What consultation will take place and what criteria will be applied to that process?

Clause 3 allows the Minister by regulations to provide for the person initiating proceedings to choose between online and other procedures and rules. What consultations have taken place or will take place on this process? What role is there for the defendant in such cases? The clause also empowers Ministers by regulations to allow online procedure rules for excluded proceedings. What is the rationale of this provision? Can the Minister exemplify how it will work?

Why will regulations empowered by Clause 6 be made by the negative resolution process?

Clause 8 empowers the Minister to write to the committee asserting that he,

“thinks it is expedient for Online Procedure Rules to include provision that would achieve a specified purpose”,

which the committee has to make “within a reasonable period”. The Explanatory Note says that this,

“may be required in situations of urgency”.

Can the Minister exemplify such situations and indicate what would constitute a “reasonable period”? Will it be open to the committee to decline a request or amend any proposed change?

Will the powers of the Lord Chancellor in Clause 9 to amend secondary legislation to reflect the introduction of online procedure rules be made by the affirmative or negative procedure? I concur with the Law Society’s view that it should be the former, as others have suggested today.

There is a particular concern about the impact of the Bill on housing cases, an issue raised by the Housing Law Practitioners Association, to which Lord Justice Briggs responded in his report by asserting:

“Claims for possession of homes (even if accompanied by a money claim) should at least initially be excluded from the Online Court”.


He also stated that he was,

“persuaded that there should not be compulsory inclusion within the Online Court of the damages-only sector of these claims, particularly where fixed costs recovery still supports an economic model for CFAs”.

He added:

“I continue to see no reason why there should not be voluntary admission of these cases, where a tenant claimant so wishes”.


However, he added that he could not see,

“how these counterclaims could easily be brought within the Online Court if the possession claim is to be excluded”.

On enforcement, Lord Justice Briggs recommended that,

“urgent steps need to be taken to address the under-investment and consequential delays which clearly undermine the quality of the County Court bailiff service”.

Can the Minister indicate whether, and if so when, the Government intend to address this issue?

Clause 2 does not explicitly refer to housing cases but, in the light of Part VII of the Housing Act 1996, it would appear that they are included in the category of civil proceedings. Perhaps the Minister will confirm that that is the case?

Your Lordships will be aware that housing law is an area in which access to justice is problematic with, in effect, legal aid and advice deserts in many parts of the country enhancing the vulnerability of tenants. It is not unreasonable to question whether in this most sensitive area of the justice system reliance on a digital system is the right approach. What steps will the Government take to ensure that adequate support is available to tenants, many of whom will be vulnerable and unequipped to contest a claim for possession, and will they, and if so when, review the efficacy of the changes embodied in the legislation?

There is wider concern about the impact of the policy on people unfamiliar with the digital world. PCS, the Public and Commercial Services Union, shares this concern and avers that the changes are primarily driven by the 40% cut in the Ministry of Justice’s budget, and points to the fact that the Courts and Tribunals Service’s own staff survey revealed that 85% of its respondents regarded the new technology as having a negative effect on timeliness, with 81% averring that it interfered with their ability to give legal advice and ensure a fair hearing.

Finally, can the Minister assure us that the next move to modernise the justice system will not be to replace the judiciary and tribunals with artificial intelligence?

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Beecham Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, this is a necessary rectification of the earlier regulations. Subject to what has already been expressed, we have no objection to it.

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. As the noble and learned Lord, Lord Hope, observes, the supplementary instrument is distinguished by its brevity. Nevertheless, I can assure him that it has the effect indicated by making the deletion from the relevant provision regarding maintenance. That was raised with the Family Law Committee as well. We consider that this will be effective. I will look at the point he raises and will write to him if there is further elaboration and assurance I can give him on it.

Regarding consultation, this issue arose at a very late stage when we were proceeding with the principal instrument. It is a highly technical issue. Indeed, there is some uncertainty as to whether the principal instrument did in fact cover these issues. It therefore proceeded, but, in the light of the concerns that had been expressed, we consulted further with family law stakeholders and brought it to the committee’s attention. It was determined that we should, on any view, take the line—I was going to say “of least resistance”—that, come what may, there was no technical deficiency in the instrument in the event that we exited without a deal.

There was consultation with relevant stakeholders when the principal instrument was considered. Their response on these points came rather late in the day as far as we were concerned. The principal instrument therefore proceeded but I remind noble Lords that when I moved it I drew this point to the attention of the House quite specifically and said that we were giving consideration to a further instrument to address it. It has been at the forefront of our minds for some time. In the circumstances, I commend the regulations to the House.

Services of Lawyers and Lawyer’s Practice (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Monday 18th March 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, it is ironic that our departure from the EU, if it occurs, will necessitate an agreement with Switzerland, which of course is not a member. Can the Minister indicate the extent of the problem that the regulations seek to address? How many Swiss lawyers currently practise in the UK—my understanding is that there might be as few as 10—compared with EU lawyers, and how many UK lawyers do so in Switzerland? How do these figures compare with those of other EU states?

The regulations are described as resulting “in the short term” with parties avoiding,

“the costs of adjusting their business models”.

How long is this short term expected to be, and what is the estimate of the cost of adjusting business models?

Paragraph 12 of the Explanatory Memorandum avers that there are all of 10 Swiss registered European lawyers in England and Wales. How many is it estimated will be here after Brexit? The impact assessment states that clients seeking legal services from them will not be allowed to obtain them unless the lawyers are “permanently established in the UK”. How is that status to be established? How many are deemed to fit that description now—presumably there are 10—and how will that be judged in the future? What is the rationale of the provision that Swiss lawyers will have only four years after Brexit to apply for REL status? Why will Swiss lawyers with contracts be able to serve clients for 90 days a year for up to five years? Why just 90 days? Will they have to abandon their clients in the midst of cases, for example?

The impact assessment fails to live up to its title when it explicitly states that:

“The cost of this change cannot be quantified as no data exists showing the number of Swiss lawyers providing regulated services in the UK on a temporary basis”,


and that the,

“cost to regulators is not quantifiable”.

Can the Minister indicate which provisions of these regulations, if any, are quantifiable? What is the anticipated impact on UK lawyers practising, or seeking to practise, in Switzerland, given that they will have a four-year period to register or, if not yet in Switzerland, to apply to transfer to Swiss professional status? UK law firms will be able to continue to serve existing Swiss clients for up to 90 days a year for five years after Brexit subject to written contracts being in place before exit day. What is the estimate of the number, and proportion of the existing number, that Her Majesty’s Government envisage will do so?

The Law Society points out that there is no provision to allow UK law firms to operate in Switzerland under their current structures. What, if any, estimate have the Government made of the impact of this position? The society suggests that some firms will have to amend their corporate structure and that a future trade agreement with Switzerland will have to be negotiated. What, if any, plans do the Government have to deal with this eventuality? What estimate have the Government made of the impact of the changes on the international standing of UK legal services and the contribution they make to the standing of our legal services and to our economy?

[Lord Keen of Elie]

I am obliged to noble Lords. I think the answer to the question posed by the noble Lord, Lord Beecham, is that we are implementing an international treaty, and that is why these steps have been taken. However, to respond to the point made by the noble Lord, Lord Thomas of Gresford, no Swiss lawyers are registered with the Bar Standards Board. We understand that 10 are registered with the SRA, and that is where that figure comes from.

It is not necessary for Swiss lawyers coming into the United Kingdom to carry out temporary work to register and therefore it is not possible to monitor the number, because they are entitled to come in on a temporary basis to provide legal services. The period of four years reflects the fact that it is possible for a Swiss lawyer to transition into membership of the relevant professional body in the United Kingdom in under four years—I understand that at present it is three years—and therefore there is full allowance for that.

With regard to English lawyers practising in Switzerland, at the last count, which I think goes up to 2015-16, in the region of 236 lawyers practising in Switzerland full-time were English-qualified.

With regard to the future corporate structure of English firms operating in Switzerland, I would not venture a view as to what the precise structure would be in the future. However, from engagement with the major legal firms in England and Wales over the last year or so, it is quite clear that they have made provision in anticipation of our leaving the EU, with the consequent effect that that will have on the EU-Swiss agreements on which we rely. We can therefore be reasonably confident that their structures will be compliant with the requirements of Swiss law.

On the question of the international standing of our legal profession, we see no reason to doubt that it will be maintained after Brexit, nor any reason why the terms of the UK/Switzerland citizens’ rights agreement as implemented by this SI should in any way derogate or detract from the standing of our legal profession in England and Wales, and indeed in the UK as a whole.

In these circumstances, we consider that this is a relatively technical amendment to the existing provision that is being made in anticipation of our departing from the EU without a deal. Of course, in the event that the deal is implemented and we go into a transition period, the application of this instrument will be deferred until the end of that period. We will then determine at that time whether in fact we have in place the relevant free trade agreements with both the EU and Switzerland.

[Lord Beecham]

Before the Minister sits down, obviously I was throwing questions at him that he may not have been able to answer, so will he perhaps cover those that have not been answered in a letter to me in due course?

[Lord Keen of Elie]

I will consult Hansard. If it appears that there is a question that the noble Lord posed that is relevant to this instrument then I will respond.

Female Offender Strategy

Lord Beecham Excerpts

Thursday 31st January 2019 Lords Chamber

[Lord Keen of Elie]

This is a very important issue for us. In all cases where a female offender is in custody, we endeavour to ensure that birth does not take place within the prison system, but sometimes that cannot be avoided. We have extensive services for mothers and children up to the age of 18 months when it is necessary for them to be in custody—I emphasise the word “necessary”. When an offender is reaching the end of a short sentence, steps are taken to try to ensure that mother and child are kept together. However, of course this cannot be done in circumstances where there has been a serious offence that results in a mother being in custody for a lengthy period.

[Lord Beecham (Lab)]

The right reverend Prelate referred to the strategy envisaging greater use of residential and community services instead of custodial sentences. To what extent is that occurring? Are the Government still adhering to their policy of limiting funding of the strategy to £5 million over two years, replacing their previous plan to spend £50 million on five new prisons? If so, what is happening to the other £45 million?

[Lord Keen of Elie]

My Lords, there is an important shift in policy away from custody as a means of trying to resolve these issues. That is why we moved away from the proposal for five community prisons; we hope they will not be required. Instead, we have shifted the balance in the direction of community services. We will pilot such community residential services in five areas to see how they work. For that purpose, we have committed funding of up to £5 million over the next two years, but of course that will not be the end of the matter. We will address the consequences of the pilot in these five areas and see how we can take things forward from there.

Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Keen of Elie]

That is entirely right.

[Lord Beecham (Lab)]

My Lords, as we have heard, this statutory instrument has the effect of preventing UK courts from providing similar protection measures and certificates to secure the recognition and enforcement of their judgments in the EU while, paradoxically, recognising such measures and certificates issued by the EU courts. This is extraordinary. There is not an impact assessment as far as I know—if there is I have missed it—and no indications as to what steps will be taken to ensure reciprocity by the EU on this subject. The noble and learned Lord mentioned that possibility en passant without substantive clarification.

The Law Society recommends that there should be an explicit clarification that protective measures issued in the Scottish and Northern Irish courts will be recognised in England and Wales. Perhaps the noble and learned Lord will deal with that when he replies to the debate.

The Secondary Legislation Scrutiny Committee has recommended that this SI should be upgraded to an affirmative, stating:

“To allow UK civil courts to issue certificates post EU-exit would, potentially, mislead protected persons as to the recognition and enforceability of their UK issued protection measures in EU Member States post exit potentially placing them at risk”.

That sounds significant and I wonder why the Government have chosen to adopt the procedure they have rather than make this an affirmative, given the potential implications identified by the Secondary Legislation Scrutiny Committee. It points out that it is unclear what measures would be taken to ensure UK judgments would be recognised after Brexit and that there is an assumption that the EU states will not respect civil protection measures issued in England and Wales. Can the noble and learned Lord confirm that?

Finally, there is a question about the potential cost to the UK Government, the courts and the police of enforcing EU-issued protection orders, which will still be valid, while ours will not be valid there. It looks one-sided: the cost will fall on us as a nation because contrary positions have been taken up. Can the noble and learned Lord clarify that?

Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

I hope that this covers all aspects of these provisions. I should be content to answer any queries. I commend the draft instrument to the Committee.

[Lord Beecham (Lab)]

My Lords, again, I am grateful to the noble and learned Lord for being clear and relatively concise about the matters he is taking through this Committee today. It was important that he should explain the Government’s approach in this statutory instrument and he has done so very well.

The first of these two statutory instruments is the one in today’s batch which appears to have raised the most concern. It is disturbing that no impact assessments were published until 24 January and even more disturbing that they contained next to nothing of interest. It is fair to say that the Law Society “broadly supports” the statutory instrument on the basis that,

“it would be inappropriate to unilaterally continue the existing mechanism in the event of no deal”.

The grammatical error is theirs, not mine. Can the noble and learned Lord indicate whether there have been discussions with the EU about the future position on this, or on any other basis?

The Law Society stresses,

“the scale of loss of international functionality in family law in the event of no deal”,

It points out that,

“the lives of UK and EU 27 citizens have become intertwined in the last 40 years”.

It goes on to cite five significant benefits enjoyed by UK families, the future of which are at risk.

These are: the regulations on mutual recognition of protection orders, which help the protection of victims of domestic violence or harassment across borders; the European enforcement order, which facilitates the enforcement of uncontested claims; the maintenance regulations facilitating cross-border payment and maintenance; and the Brussels II regulation, which allows mutual recognition of divorce orders and determines the jurisdiction for them in domestic cases in close collaboration with courts and welfare services on issues affecting children, including child protection and abduction. Finally, the system provides mutual recognition of contact orders, and the enforcement of orders such as, in effect, custody of access.

Without a deal, we would have to fall back on less comprehensive provisions. There are, however, a number of additional concerns. Although the Minister in the other place, Lucy Frazer, informed the Justice Select Committee that there is an agreement to apply current rules to cases ongoing on exit day, the Ministry of Justice has confirmed that there is no such guarantee that the EU states will do this—they will treat us as a third state, and it will depend on their own law. This raises the risk of a rush to the courts to secure a decision under the present regime, which would cause real difficulties in cost to our own system.

Alternatively, people may find that a case started under one set of rules will be concluded under another set, with consequential delay and at greater cost. If the new system is deemed by one party more likely to assist his or her claim, there might be competing petitions. Will the Government therefore be addressing these issues—at the very least, seeking to ensure that the current rules will continue to be applied in all cases begun before Brexit?

I understand that the EU has issued a notice saying that only orders that should have been registered in the relevant member state would be recognised. There is also concern that the instrument, as drafted, could mean that a prenuptial agreement that is the subject of negotiation at the date of Brexit may not be upheld. We are dealing with issues potentially affecting large numbers of people, with 1 million British citizens living in the EU, and 3 million EU citizens living in the UK. The Bar Council points out that there are currently as many as 16 million cross-border family disputes in the EU, 140,000 international divorces and 1,800 cases of child abduction. What is the Government’s estimate of the number of cases of these three kinds affecting UK citizens, and EU citizens resident in the UK? I do not anticipate that the noble and learned Lord will have that information today, but I am sure he will convey it after today’s events.

The Council points to two EU instruments that impact significantly on our family law. One is on jurisdiction, recognition and enforcement of decisions in matrimonial cases, parental responsibility, and crucially, on international child abductions. The other deals with maintenance, including child maintenance. But the Bar Council cites a range of other benefits, including the protection of victims of domestic violence and forced marriage protection orders, together with a streamlined process for enforcing uncontested claims—for example, where the parties agree an out of court settlement.

While departure from the EU without a deal would not affect UK law, the Bar Council points to the risk of uncertainty, duplicate court proceedings, possible problems with enforcing UK court decisions in the EU, and significantly, costly pressure on an overstretched court system here. There are possible alternatives, which the Bar Council cites, under the Hague and Lugano conventions. But these are not, apparently, without problems. For example, we would have to join the EFTA or secure the agreement of all Lugano state members to adopt those systems.

There are also problems over financial provision for children. For example, these will be made only where the child and its resident parent live abroad, and the non-resident parent lives in England and Wales—whereas now it is the other way round. Should not the position be as it was before? As it stands, children living in the UK with fathers in the EU are likely to lose out. Further, it will be possible for the court only to make an order for periodical payments and lump sum or property orders.

--- Later in debate ---

[Lord Beecham]

I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.

[Lord Keen of Elie]

I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.

There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Beith]

There is one thing the Government have not made clear. The impact statement, brief as it is, is structured around there being two options—the other option being not to change retained EU law. As I understood it, that option implied that in a no-deal situation, if we did not have this instrument, the courts would be left behaving as they had previously and hoping that courts in other countries would do the same. One of the things that was not explained very well in the impact statement—perhaps the Minister can clarify this later—is what the other option the Government rejected was.

[Lord Beecham (Lab)]

My Lords, I have practised law for a long time—fortunately none of it in relation to the EU and the complications we are debating today. I defer to the more qualified Members of the Committee today, some of whom have already addressed us.

These regulations might best be described as a hors d’oeuvre to the four-course Brexit banquet we are being served today—although, curiously, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has raised any concerns.

In addition to reverting to the pre-EU membership system, the statutory instrument repeals a decision that currently allows the UK to co-operate on civil and commercial matters in the EU judicial network. What estimate have the Government made of the impact on the UK of that change, and what consultation took place with industry or other potentially interested parties given that the so-called Brussels regime operated on a reciprocal basis?

The Law Society, which is generally supportive of the statutory instrument, is concerned about the loss of the existing framework for determining which national court has jurisdiction and for recognising whether or not there is a choice of court between the parties to disputes.

The impact assessment contains a disturbing paragraph which states:

“Businesses and individuals litigating in the courts of EU countries will have an advantage over those litigating in the UK as UK litigants cannot guarantee the judgment they get from the UK courts is enforceable in the EU but litigants who get a judgment from the EU courts, will almost always be able to obtain enforcement of it in the UK”.


It is a one-sided deal, as it were. The English legal system has prospered remarkably through its participation in the EU but that looks to be one of the costs and losses that it will incur.

The Law Society notes that hitherto the existing system has fostered cross-border trade and encourages litigants to use the UK courts in the knowledge that their judgments would be enforceable across the EU and calls on the Government to accede to the Lugano convention—which, as the noble and learned Lord has indicated, is not an EU organisation although the EU is a party to it. Can the Minister indicate the Government’s response to that suggestion?

[Lord Adonis]

My Lords, the only noble Lord who has not been prepared to take interventions is the Minister; it is unprecedented in my experience of Grand Committees. It is a straightforward attempt by the Government, which I am afraid we have seen time and again, to suppress parliamentary debates and shorten proceedings in a Grand Committee. One can understand why the Government wish to do this: it is simply impossible now to introduce and enact all the statutory instruments relating to no deal in time for the UK to leave the European Union at the end of March unless they are not scrutinised by Parliament. If they are not, the Government can increase the volume that come before the Grand Committee day by day. The hundreds more that have to come can then be hustled through. I say to the noble and learned Lord, who we hold in high esteem as a barrister, that if these sorts of proceedings and this sort of short-circuiting of due process were taking place in a court in which he was appearing, I imagine that he would be the first to criticise it. It is our duty to hold him to account. As he is not prepared to follow the normal conventions of the Grand Committee and the House, that should lead us to refer this regulation to the House for further debate as a matter of principle, not least because of all the issues raised in the debate.

Central Courts IT System

Lord Beecham Excerpts

Wednesday 23rd January 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, last May the National Audit Office published a damning report on the Ministry of Justice’s four year-old £280 million IT programme. In the light of the latest fiascos affecting the probation service and the entire criminal justice email system, would the Minister rank the department’s performance in these areas as better or worse than that of Chris Grayling’s recent award of a ferry contract to a company with no ships, or the shameful record of the Home Office over the Windrush debacle?

[Lord Keen of Elie]

I rather fear that the noble Lord’s inquiry has taken sail. The position is that the issue that arose recently had nothing whatever to do with the development of the common platform system for the Ministry of Justice, which is still in its testing phase. It was entirely unaffected by the issue that arose, which was in fact attributable to the corruption of a routing server that has now been replaced.

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 15th January 2019 Lords Chamber

[Lord Thomas of Gresford (LD)]

I congratulate the Minister on his timing. This is part of the no-deal preparations along with the fake travel jam, the lorry jam in Dover and the hiring of ferries with no ships, but it is a bit late now, with about half an hour to go to the vote, to frighten the horses any further. It is extraordinary that parliamentary time should be spent in debating a statutory instrument of this nature. It is applicable only if the UK leaves the EU without reaching an agreement. The effect of that is to throw the United Kingdom on to World Trade Organization rules for general agreement on trade and services.

If that were to happen, the most-favoured-nation rules would come into operation prohibiting preferential treatment of any signatory state above another. The whole purpose of this statutory instrument, therefore, is to reduce EU and EFTA lawyers currently practising in this country to the level of the lawyers of third-party countries from around the world whose rights to practise and establish in England, Wales and Northern Ireland, absent a trade deal, are absolutely minimal, if they exist at all. As the noble and learned Lord said, this SI affects about 700 lawyers currently registered with the Solicitors Regulation Authority, 17 registered with the Bar Standards Board and some five EU lawyers registered in Northern Ireland. The other side of the coin, however, which would be of concern to the legal profession, is that the EU will obviously seek reciprocally to reduce the rights of United Kingdom lawyers practising in the EU to those WTO rights.

One of the most important differences between the WTO regime and the existing EU framework is the practice areas in which foreign lawyers are allowed to provide services in Europe. While the directives allow EU, EEA and Swiss lawyers to practise host member state law, including EU law, it is not possible under the current GATT schedule for commitments of the EU, which limits third-country lawyers to providing legal advice in home-country law and public international law, to practise in EC law.

While it is possible in theory for individual member states to grant higher levels of access to foreign lawyers, in practice most member states have not gone beyond these GATT commitments. It follows, therefore, that British lawyers will lose a number of significant rights: rights to provide legal advice on EU law; the right to requalify in host member states; and rights of audience in domestic and European courts. Further, according to the settled case law of the CJEU, lawyers from third countries practising in Europe cannot claim legal professional privilege to protect their clients’ interests. Legal professional privilege is not available to them.

It is not surprising, then, that in 2016 the Law Society of Ireland received nearly 1,400 applications from practitioners to requalify in Ireland. Those were British lawyers, mostly from antitrust, competition or trade law practitioners, based in London or Brussels. Last week the Irish Taoiseach specifically said that they were looking at Ireland taking business in legal services away from the United Kingdom. This statutory instrument, therefore, risks unnecessary conflict with the EU legal profession. There will be no reciprocity. Even if there were a no-deal withdrawal from Europe, surely there would have to be an agreement to retain an open market for legal services allowing mutual rights to practise across the borders. You will see no trace of that in the political statement that accompanies the withdrawal agreement. As the noble and learned Lord, Lord Thomas of Cwmgiedd, pointed out last week, we are in a competitive position. Commercial courts where the proceedings are conducted entirely in English have opened up already in Paris and Amsterdam. The noble and learned Lord said that they are being actively promoted as a much better alternative to the United Kingdom because their judgments will be recognised and enforceable across the EU and because of the certainty of their position.

If the EU does unto us what we are doing to it by this statutory instrument, British lawyers will have no rights of audience in these new English-speaking courts. That is a most curious result. Instead of spending time abolishing the rights of European lawyers to practise in this country, the Government might spend time in negotiating mutual rights to practise to replicate the current position. There is nothing, as I have said, in the political declaration that points to such negotiations. I ask the noble and learned Lord: where are we? Have there been any talks on this issue?

[Lord Beecham (Lab)]

My Lords, I refer to my professional interests, although my firm has not been engaging in EU law. I want to thank in particular the Law Society and the Bar Council for very helpful briefings on an important and complex issue. The provisions of the statutory instrument appear to be acceptable, inasmuch as it will still be possible for EU-registered lawyers to be admitted to the solicitor’s profession or to practise under their home title. Can the noble Lord give any indication of the numbers—the proportion of those whom we have heard are already practising in this country who would be likely to continue under this new regime? Is there any estimate of the impact of the change on the likely numbers of those who will be able to continue? What estimate have the Government made of the impact on UK lawyers currently practising in the EU? Is there any information about the likely impact on them? Can the Minister clarify what is meant by the reference in the Explanatory Memorandum to the,

“alternative examination routes open to third country qualified lawyers”,

and indicate how many applicants are expected to take that course of action? What will be the position of EU lawyers currently engaged in litigation in the UK who do not choose to be admitted to the UK professions by the end of the transitional arrangements on 31 December 2020? Will they, for example, have to withdraw from cases still under way on that date?

Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Lord Beecham Excerpts

Tuesday 15th January 2019 Lords Chamber

[Lord Beecham (Lab)]

My Lords, in general, the view of the Law Society and the Bar Council is that these regulations do not raise many problems but some matters appear to require clarification. I am not sure whether I am about to overlap with what the noble Lord, Lord Thomas, has just raised. He will forgive me—although the Minister may not—if I am going over the same ground.

The Law Society has raised a question on the impact on the provision for legal aid under paragraph 44 of Part 1 of Schedule 1 to LASPO, which states:

“Civil legal services provided in relation to proceedings in circumstances in which the services are required to be provided under Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes”.


At present it is unclear, certainly to me, how many people are granted legal aid under this provision. I do not know whether the noble and learned Lord will have that information to hand—presumably not. Perhaps he can provide it later if it is not immediately available.

The other question is: do the Government know how many such provisions are reciprocated by the other side, so to speak? If there are significant numbers involved, the Government should surely ensure that there is funding in the event of a no-deal Brexit but if there is a Brexit deal, this provision should be included on a reciprocal basis, given the number of UK citizens residing in the EU who may well need such assistance. As I say, I do not know whether the noble and learned Lord will have that information but I certainly join the noble Lord who spoke previously in wishing for confirmation that legal aid will still be available for those who need it in these areas.

[Lord Keen of Elie]

My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.

On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.