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Thursday, December 17, 2015

Excitement over the Autumn Statement

Excitement over the Autumn Statement
27 November 2015

by Richard Messingham
Richard Messingham provides an overview of the activity around the Autumn Statement, and also looks at legal aid, court closures and the Investigatory Powers Bill.
Excitement over the Autumn Statement


On Wednesday this week George Osborne presented his first Comprehensive Spending Review (CSR) and Autumn Statement as chancellor within a new majority Conservative government.
In his speech to the Commons, Osborne set his sights on becoming the "mainstream representatives of working Britain" seeking to firmly occupy the centre ground, that he and many others think has been vacated by the Labour opposition. The chancellor outlined his job to "rebuild" the country and ensure that our "economic and national security provide the foundations for everything we want to support".
He was frank that debt was still too high and that the deficit was still growing but he looked to the future with positivity, particularly after receiving a £27bn windfall in predicted tax revenue. Such a windfall allowed him some freedom on some his less popular policies, notably u-turning on his 'toxic' policy to remove tax credits cuts and to protect police spending.
Despite the windfall the respected Institute for Fiscal Studies think-tank said the announcements did not mark "the end of austerity" and that government departments will still have to cut large portions of their budget. The Ministry of Justice (MoJ) did not itself see the worst cuts in overall spending – that fell to the Department of Transport - but over the next four years the MoJ will need to find 15 per cent of their budget, and more specifically 50 per cent of their administration services, leaving a tough challenge for the department.
Justice was in no way Osborne's biggest focus for the review or statement - with housing, health, devolution and security all being more prominent - but he did reiterate his commitment to tackle "difficult social problems" including in "our prisons and criminal justice system". He gave his support to his friend, the lord chancellor, who he said has put forward a "typically bold and radical plan to transform our courts", noting that underused courts will be closed and the money saved will allow a £700m investment in new technology for the courts systems. The other very significant announcements relating to the MoJ was a change to the small claims limit in personal injury and a reiteration that the government will look at changes to court fees.
This week also saw the prime minister give his first response to the foreign affairs committee report on Syria, where he started to make the case for the UK to join the international coalition in air strikes against ISIL/Daesh in Syria. The government is looking to put a vote to the Commons next week, but internal division in the Labour Party may have the potential to impact on this. Either way whether Britain takes military action in Syria, the issue is likely to dominate the political agenda above all other issues, including the details of the CSR, for the next week if not longer.

Monday 23 November

House of Commons - Welsh Affairs Committee: pre-legislative scrutiny of the Draft Wales Bill: inquiry
The draft Bill aims to move the Welsh model of devolution from a 'conferred' to a 'reserved' powers model and devolve further powers to Wales in respect of energy, transport, the environment and elections.
The committee is examining whether the government's proposals, particularly in respect of the reserved powers model, are sound, and whether the provisions of the draft Wales Bill deliver the policy intentions of the UK government.
The Law Society gave evidence to the committee to contribute to the debate regarding the workability of the reservations in particular in relation to the example of planning law as an area of practice. The select committee was particularly interested in the inter-relationship between laws passed by the Welsh Assembly in a number of areas, not just planning, to the wider body of English and Welsh common law and statute. The committee will continue to hold further evidence session and the Society will be monitoring the debate closely.
Huw Williams vice-chair of Geldards LLP, a Wales-based member of the Planning and Environmental Law Committee, and Kay Powell from the Law Society's Wales Office, gave the Society's oral evidence to the committee.
House of Commons - written answers: clinical negligence
Karl Turner MP: To ask the secretary of state for health, what assessment he has made of the incentives for defendants in clinical negligence cases to encourage early admissions and settlements.
Karl Turner MP: To ask the secretary of state for health, what steps he has taken to ensure that claimant lawyers can continue to pursue low-value claims in clinical negligence cases in a fixed recoverable cost regime.
Ben Gummer (care quality minister): Admissions should be made and compensation paid to those who are entitled to it based on the evidence. The proposed scheme will also apply to defendants and incentives for early resolution are included in the consultation. NHS Litigation Authority data shows that on average clinical negligence claims resolve within 1.31 years of the claim being made, and those valued under £25,000 are resolved in less than 12 months. Following the pre-consultation process, the department is currently working with the Civil Procedure Rule Committee on the rules to support the Fixed Recoverable Cost work before an open public consultation is undertaken.
House of Lords - Short debate on criminal legal aid
Minister for civil justice Lord Faulks laid to amendments on the Civil Legal Aid Regulations 2015, specifically Civil Legal Aid (Merits Criteria) (Amendment) (No. 2) Regulations 2015 and Civil Legal Aid (Merits Criteria and Information about Financial Resources) (Amendment) Regulations 2015, regarding the expansion of the definition of 'private law children case' and allowing Legal Aid Agency access to financial information to make it easier to determine eligibility for legal aid. Both amendments within the statutory instrument - a government or executive order of subordinate legislation – were passed with support from Labour, expressed by its spokesperson Lord Bach.
Lord Bach said that he will be debating LASPO as part of an oral question on the 'future of legal aid' on Thursday 10 December.
We will monitor this oral question and update you of anything relevant.
House of Lords - written answers: magistrates - resignations
Lord Beecham: To ask Her Majesty's Government how many magistrates have resigned from 1 April to 1 November, and how many resigned during the same period in 2014.
Lord Beecham: To ask Her Majesty's Government what was the percentage of magistrates resigning since 1 April broken down by (1) age, (2) ethnicity, and (3) gender.
House of Lords: European Union Referendum Bill
The Bill has now reached the report stage where peers will have further opportunity to examine and make amendments.

Tuesday 24 November

House of Commons - Westminster Hall debate on community and voluntary sector funding: pro bono
The debate was sponsored by Labour MP Naz Shah and focused on the future of funding for local communities and charities.
Former health minister Dr Daniel Poulter mentioned the Law Society in relation to pro bono as a way to support the voluntary sector: "I wonder whether the minister may be able to look at - and perhaps do some work with the Law Society on - pro bono work from solicitors. A lot of big law firms do not give their lawyers time off to perform pro bono work. The only way we can change that is not through dealing with firms, but by putting a requirement on lawyers through the Law Society which then, in turn, would put pressure on firms to act. Will he look at working with the Law Society to encourage more pro bono work?"
The Society will be responding to this point detailing, among other things, the extensive pro bono work that our members carry out.
House of Commons - written answers: Investigatory Powers Bill
Andy Slaughter MP: To ask the secretary of state for the home department, whether her department plans to amend the Act which results from the Investigatory Powers Bill in the event of repeal of the Human Rights Act 1998.
John Hayes (security minister): The Home Office has indicated that it will not be possible to answer this question within the usual time period. An answer is being prepared and will be provided as soon as it is available.
House of Commons - written answers: court closures
Andrew Tyrie MP: To ask the secretary of state for justice, with reference to page 28 of his department's consultation paper, Proposal on the provision of court and tribunal services in the South East Region, published in July 2015, on what statistical basis the figure of 78 per cent of court usage capacity was calculated; and if he will publish the data underlying that calculation.
Shailesh Vara (minister for the courts and legal aid): The utilisation figure for Chichester Combined Court of approximately 78 per cent quoted in the consultation was based on Crown Court work only (1928 hours) and only took account of the two Crown Court rooms in the Combined Court. Chichester Combined Court also hears county court work and held 1069 hours of work giving a total of 2997 hours. This provides an overall utilisation figure of approximately 60 per cent for the four rooms (two Crown Court and two used for County Court work) at Chichester Combined Court. This adjustment will also be published in the consultation response document.
Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the potential effect of fixing recoverable costs in medical negligence cases to a maximum of £250,000 on a claimant's ability to pursue a case.
Dan Jarvis MP: To ask the secretary of state for health, whether reducing incidents of negligent care will be the primary focus of the government's proposed package of reforms aimed at reducing costs in medical negligence litigation.
Dan Jarvis MP: To ask the secretary of state for health, whether reducing incidents of negligent care will be the primary focus of the government's proposed package of reforms aimed at reducing costs in medical negligence litigation.
Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the potential effect of fixing recoverable costs in medical negligence cases to a maximum of £250,000 on the accountability of the NHS to the public.
Ben Gummer: Over the past 10 years claimant legal costs as a percentage of damages paid by the National Health Service have increased from 32 per cent to 52 per cent. We believe that claimant legal costs are disproportionate to the value of the damages paid, sometimes representing up to 299 per cent for lower value claims, and disproportionate to the defendant costs. Ultimately this all comes out money for front line services. The proposal for fixed recoverable cost in lower value clinical negligence claims was suggested by Lord Justice Jackson in his report Reform of Civil Litigation Funding and Costs in England and Wales.
The department is working closely with partners and interested parties to develop a proposal to introduce fixed recoverable costs for clinical negligence claims. The department's proposal in the consultation is a maximum threshold level of £250,000, based on Lord Justice Jackson's original proposal and with a view to covering at least 80 per cent of all claims. We welcome views on the proposal from all sectors. The results of a pre-consultation exercise with a number of key stakeholders, including representatives of claimant lawyers, and the consultation documentation, including the Impact Assessment, will be published early 2016 subject to relevant Committee clearances.
The level of potential savings will ultimately depend upon the final maximum threshold level proposed. By making legal costs proportionate to the damages paid we would hope to save circa £80 million per annum. The department is also working with various clinical groups looking at how the current level of incidents can be reduced. In terms of maternity our target to reduce avoidable harm by 50 per cent and save 6,000 lives.
The department sees the fixed recoverable cost work as part of an overall strategic approach aimed at improving patient safety, improving customer care and improving litigation. Improving patient safety and reducing the incidents of harm is a key element of this.
House of Lords - short debate on the outcome of the criminal duty tender
The debate moved by Lord Marks. We briefed him as well as Lord Bach and Lord Clement-Jones ahead of the debate. The main points of the debate were:
  • Lord Marks (Lib Dem) asked what the government intends to do in response to the investigation launched by the Law Society
  • Lord Bach (Lab) asked the government to provide further information about the costs of the litigation and a timeline for when it expects the litigation to be over. He also called for the government to start negotiating with the Law Society and to reconsider the procurement process
  • Lord Clement-Jones (Lib Dem) called for the government to scrap the procurement process
  • Lord Cotter (Lab) also highlighted the irregularities of the process
As expected, Lord Faulks defended the tender outcome as well as the LAA's decision to fight the challenges arguing that the process was conducted in accordance to fair standards and that the staff was adequately trained. Interestingly, he said that the Law Society agreed in the past that the procurement process had to change and mentioned the unsuccessful judicial review. He also ruled out that the government could scrap the procurement process as this would prevent the result of the litigation. He insisted that the LAA has conducted the process in a perfectly adequate way.

Wednesday 25 November

House of Commons - Comprehensive Spending Review and Autumn Statement
George Osborne presented his first Comprehensive Spending Review and Autumn Statement as the chancellor of a Conservative government.
Summary of key justice announcements
Through the comprehensive spending review the Ministry of Justice has agreed to make the following savings:
  • Overall resource savings of 15 per cent by 2019-20 including by delivering efficiencies within the prisons and courts systems
  • 50 per cent savings to the department's administrative budget by 2019-20
Wider justice announcements included:
  • Increase in total of investment to more than £700m to modernise and fully digitalise the courts.
  • The sale of underused courts to release land for new homes as well as delivering saving of approximately £200 million a year from 2019-2020 onwards.
  • Plans to reduce legal costs by transfer personal injury claims of up to £5,000 to the small claims court.
  • Removal of the right to general damages for minor soft tissue injuries.
  • A reiteration of the government's commitment to look at changes to court fees.
  • Investment of £1.3bn in the next five years to reform and modernise the prison estate including building five new prisons in before 2020, and four shortly after.
  • Intention to sell £4.7bn of public assets, including the Land Registry which they will consult on in 2016.
  • The introduction of a number of new criminal offences and civil penalties to deter tax evasion.
House of Commons - Draft Investigatory Powers Bill Joint Committee
The House of Lords nominated their members of the Draft Investigatory Powers Joint Committee:
  • Baroness Browning (Con)
  • Lord Butler of Brockwell (Crossbench)
  • Bishop of Chester
  • Lord Hart of Chilton (Lab)
  • Lord Henley (Con)
  • Lord Murphy of Torfaen (Lab) - chair
  • Lord Strasburger (Lib Dem)
On the House of Commons side, Shabana Mahmood MP has replaced Valerie Vaz MP. This means that the joint committee is now fully formed, and will start to take evidence shortly, and is expected to report by 11 February 2016.
House of Commons - written answers
Dan Jarvis MP: To ask the secretary of state for health, what assessment he has made of the effect of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 on recoverable costs in medical negligence cases.
Ben Gummer: The fixed recoverable cost regime is seeking to streamline claims for clinical negligence, focusing on what is required for a fair and proportionate resolution and encouraging a process that is more resource efficient and that incentivises the right behaviours by all parties. It extends the benefits of fixed cost regimes already realised in other areas of personal injury, as recommended by Lord Justice Jackson, and is not about the number of claims being brought.
House of Lords - Enterprise Bill
The Bill has now reached the report stage where peers will have further opportunity to examine and make amendments.

Thursday 26 November

House of Commons - Attorney general questions
Attorney general Jeremy Wright MP answered oral questions, including on human rights and the impact of the Comprehensive Spending Review (CSR) on the Crown Prosecution Service.
Main points:
  • The government has no problem with the ECHR itself but with the way in which it has been interpreted by the judges in Strasbourg. He also reiterated that the government wants to revoke the Human Rights Act but not withdraw from the ECHR. He noted that the British government is in either case committed to human rights.
  • Keir Starmer MP asked what steps he has taken to ensure that the measures relating to the Law Officers Department in the CSR enable the Crown Prosecution Service to prosecute cases effectively. Wright stated that the CPS received sufficient funding in the CSR, specifically highlighting that £4.4m had been ring fenced to support the CPS with counter terrorism cases and funding for 100 new prosecutors to support sexual offence cases has been provided.
  • Following a question from Robert Neil MP on the CPS' "woeful" IT system, the attorney general said that the funding made in the CSR for the digitalisation of the courts should benefit the CPS.

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