Queen's Speech 2017: Lawyers react to government's priorities

Great Repeal Bill

Robert Bell, partner and head of the EU and UK competition team at Bryan Cave, said: ‘The government’s lack of an overall parliamentary majority will mean that the implementation of the government’s flagship Brexit legislative measure, the Great Repeal Bill, will be highly challenging.

‘It could become very difficult for the government if pro-Single Market lawmakers feel that the government is not listening to them and is continuing on regardless with a hard Brexit approach for which they have no electoral mandate.

‘This bill will become a battleground with opposition parties and possibly Conservative rebels tabling amendments to bind the UK government in its negotiations with the EU, but also to directly influence what rights UK citizens and EU citizens living in the UK will have post Brexit.

‘In particular, Labour certainly will want to put forward their own alternative “progressive” approach of having an EU Rights Bill which sits more comfortably with their more flexible views on our post-Brexit relationship with our European neighbours.

‘For businesses, this political wrangling means continuing uncertainty. However, our advice to clients is that we have passed the point at which a ‘wait-and-see’ approach is viable.

‘Businesses should urgently be looking to conduct risk assessments of their operations with regard to the possible outcomes of the EU negotiations and the proposed Brexit legislation. They should not wait for a Parliamentary consensus to emerge before making critical decisions.’

David Mundy, partner and parliamentary agent at Bircham Dyson Bell, added: ‘The government has taken the highly unusual step of doubling the new prospective parliamentary session from one to two years to give parliament more time to consider legislation paving the UK’s exit from the European Union and urgent new demands on the domestic agenda.

The general election and the tragic events at the Grenfell Tower have high-jacked the government’s already stressed timetable and manifesto commitments and forced further legislation to address “deep-rooted inequalities in our society and to give everyone the opportunities they deserve”.

‘All this means an extended parliamentary session with today’s Queen’s Speech including the Great Repeal Bill to convert EU law into UK law with effect from exit and to give effect to the withdrawal negotiations, coupled with ancillary new legislation on immigration, fisheries, nuclear safeguards and international sanctions, alongside customs and trade Bills. Otherwise the government’s own programme looks very thin.

‘Building a broad consensus for Brexit whilst fighting a new rear-guard action to tackle social injustice would be a tall order for a government with a comfortable majority. For an administration shored up with qualified support from the DUP and with a seriously, perhaps mortally, wounded prime minister in a volatile political climate, the running of an extended parliamentary session seems, in reality, a doubtful proposition.’

‘Dementia tax’

Chris Millward, chief executive of the Institute of Legacy Management, said: ‘We are pleased the prime minister does not appear to be pursuing her manifesto plans for the so-called “dementia tax”.

‘We were concerned this policy could have severely affected people’s ability to use their assets as they wish, negatively impacting the finances of charity donors and charities.’

Data Protection Bill

On plans for new data protection rules, Mark O’Halloran, a partner at Coffin Mew, said: ‘The “right to be forgotten” is a welcome protection for children once they turn 18, but that’s just something the government chose to highlight.

‘The real purpose of the Data Protection Bill will be to incorporate the new EU General Data Protection Regulation (GDPR) into UK law.

‘Companies preparing for GDPR in May 2018 should therefore continue to do so to ensure they’re ready to comply with the duplicate UK legislation after Brexit Day.

‘It’s shame that the government isn’t seeking to address the most pressing safeguarding concern for children using social media: verifying their actual age. This is essential to keep them safe from adult content and from adults posing as kids and current checks are often far from adequate.

‘The technical challenge is huge but clearly it’s not one this government has the stomach for.’

Tenant's Fees Bill

Adrian McClinton, associate solictor at law firm Coffin Mew, said: ‘Will the banning of letting agent’s fees help tenants? In my view probably not as much as hoped. 

‘Many of those renting do not want to be renting, but they cannot afford to buy because properties where people want/need to live are too expensive.

‘On the flipside, landlords have seen their margins fall and therefore will understandably want to maintain already slim margins whilst still using the valuable services of letting agents.

‘We have also seen an increase in competition within the letting agent market, recently joined by online providers. 
 
‘I think that landlords will stand firm and we will see the cost of this proposed ban being partly shouldered by letting agents, by reducing their prices and internal cost cutting, and by tenants, through an increase in rents, which is possible because of the huge demand for housing.’

Employment

On the promise to increase the national living wage and ‘enhance rights and protections in the modern workplace’, Richard Fox, head of employment Law at Kingsley Napley, commented: ‘I welcome the fact that the government has not wholly given up on its agenda for making the workplace a fairer place.

‘It is unfortunately not clear if Mrs May’s previous enthusiasm for the work of her appointee Matthew Taylor on worker status is still somewhere near the top of her agenda.

‘If it is, and the report is soon to be published as expected, questions remain about whether legislative time will be found to help its findings on their way. I hope so because this remains an important issue and I would suggest it is crucial to find time to deal with this.’

Crime

Barry Vitou, partner and head of global corporate crime at Pinsent Masons, commented: 'The omission from the Queen’s Speech of the trailed merger of the SFO with the NCA is welcome and should signal the end of the proposal.

'The proposal was closely associated with some of Theresa May’s key advisers and it would be very surprising to see it resurface again. Especially as these advisers had no obvious alternative.

'Leading judicial figures, the attorney general, and some MPs have all come out in support of the SFO over the last few days. Diluting the concentration of expertise at the SFO just didn’t make sense.

'It is so important to keep a level playing field in the fight against fraud and the rationale for having the SFO is as good now as when it was founded in 1987.

'Considering the complexity of the task the SFO faces and its routine under-resourcing, it is doing a good job. Now the SFO looks set to stay, the focus must shift to ensure it is properly funded.'

Patient Safety Bill

Agata Usewicz, head of clinical negligence at Hodge Jones and Allen, has concerns about the withholding of information from patients, victims, and their families that could help them gain insight into what may have happened to them or their loved ones while under the care of the NHS.

‘As always, we support any initiative that will improve patient safety and encourage the dissemination of learning. The creation of an independent body, separate from the hospital or trust that is being investigated is to be welcomed, as it should result in increased confidence in the investigation process.

‘The use of the Serious Incidence Framework at present is, in our experience, inconsistent from trust to trust. The reports produced are of variable quality and are often of limited assistance to patients and their families in helping them to understand what went wrong, and why.

‘The concept of a “safe space” for staff involved with these investigations, however, flies in the face of the duty of candour and existing guidance on involving patients and their families or carers in investigations.

‘NHS England’s Serious Incident Framework stipulates that, “The principles of honesty, openness and transparency must be applied.” There can be no justification for withholding information in relation to a patient’s treatment and what went wrong, from them or their families.

‘In April this year, the Department of Health rowed back on plans to extend a legal safe space during safety investigations to local NHS organisations, therefore it is very disappointing that the concept is still being considered in relation to the Health Service Safety Investigation Body.

‘If key information is withheld from families, we run the risk of the investigations conducted by the new body appearing anything but impartial.’

Financial Guidance and Claims Bill

The Bill will combine three financial advice bodies into one, ensuring the public can seek the help and advice they need to manage their finances.

The Bill will establish a new statutory body, accountable to parliament, with responsibility for coordinating the provision of debt advice, money guidance, and pension guidance. It will also transfer the regulation of claims management services to the Financial Conduct Authority, and transfer complaints-handling responsibility to the Financial Ombudsman Service.

Qamar Anwar, managing director, First4Lawyers remarked: ‘The new Financial Guidance and Claims Bill was largely expected and we welcome tighter regulation of [case management companies], we’ve been calling for it over many years.

‘The Financial Conduct Authority has a proven track record for dealing with financially-related firms and I suspect it may do a better job than the current regulators. However, we really would like to see more distinction made between the regulation of financial services CMCs and non-financial services CMCs as this will help all on the road to improved regulation of the sector.

‘Only 4 per cent of complaints about CMCs relate to PI, so it is a missed opportunity to better regulate bad practice by lumping the good, the bad and the ugly all into one.’

Courts Bill

The bill will reform the courts system in England and Wales to ensure it is more efficient and accessible, and in doing so utilise more modern technology.

Ruth Harris, a partner in the crime team at Hodge Jones & Allen, said: ‘I have seen significant improvements in the areas of technology and working practices. However, a continual cause for concern for practitioners is that changes are made without reference to all parties within the system.

‘It is vital that there is proper consultation to ensure that systems introduced ensure collaborative working between the parties and improve access to justice for clients.

‘Support also needs to be offered to those working within the publicly-funded sector so that the burden is not disproportionately felt by legal aid practitioners already suffering years of cuts who are forced to fund themselves the technology which will allow them and their clients to participate.’

The Bill will end direct cross examination of domestic violence victims by their alleged perpetrators in the family courts and allow more victims to participate in trials without having to meet their alleged assailant face-to-face.

It will also introduce digital services which will allow businesses to pursue their cases quickly, enabling them to recover debts more easily.

And provide a better working environment for judges, allowing more leadership positions in the judiciary to be offered on a fixed term basis, and enabling judges to be deployed more flexibly.

In addition, the bill will enable those charged with some less serious criminal offences to opt to plead guilty, accept a conviction and pay a statutory fixed penalty online which will free up court time for more serious cases.

‘While I appreciate the need to alleviate the court’s time on minor cases, it must always be kept in mind that these are matters which following the entering of guilty pleas, end in conviction and a criminal record,’ said Harris.

‘Embarrassment about publicly appearing before a court and time pressures may lead people to opt for what appears to be an easy option – plead guilty and pay a fine.

‘There’s a real risk defendants may be drawn to consider this process on par with paying a speeding fine and fail to take into account the long-term consequences of convictions, such as the impact on future employment, volunteering and travelling abroad.

‘Charges that might be considered minor should not be seen as an inconvenience for the criminal justice system. Convictions for even the least serious matters may have long-term serious consequences for defendants.’

Using a smartphone to plead guilty to a criminal offence may seem convenient, but the Bar Council has also warned that government plans to roll out online pleas risk down-playing potentially serious consequences for defendants.

Chair of the Bar Andrew Langdon QC said: 'Defendants must be offered a genuine choice about how they enter their plea. They must also be made aware of their right to consult a lawyer. 

'Inviting defendants to use an online procedure to indicate a plea risks trivialising potentially serious consequences for those accused of committing offences.'

On plans for virtual hearings, cross examination, and career progression for judges, Langon added: 'The Bar Council will work closely with government and parliamentarians to scrutinise and interpret the provisions of the Bill when it is published and to support constructive improvements where necessary. 

'Technology has the potential to enhance our system of justice and to provide greater convenience to some court users. If used correctly, it can also save unnecessary expenditure. But we must ensure that convenience and cost do not override other important considerations.'

Civil Liability Bill

The government has signalled fresh personal injury reforms with a slimmed-down wish list to address the ‘compensation culture’ around motor insurance claims.

The new bill will ban offers to settle claims without the support of medical evidence and will introduce a new fixed tariff of compensation for whiplash injuries lasting up to two years.

The briefing notes for this bill state the legislation will ‘crack down on fraudulent whiplash claims’ and is expected to reduce motor insurance premiums by £35 a year.

Robert Bourns, president of the Law Society, said: 'We are very disappointed that the government has decided to revive its misguided whiplash reforms. It will be a clear injustice if the government persists with denying essential legal advice to those injured through no fault of their own - if government is truly committed to targeting fraudulent claims, it should do just that.'

Tom Jones, head of policy at Thompsons Solicitors, added: 'This is a desperate government looking for headlines. This will actually take money from the NHS and the Treasury and give it to hugely profitable insurers with no guarantee at all of any return to the consumer.

'There is simply no evidence of a "compensation culture": every government report has said it's a perception, not a reality. The insurers have whipped up a ‘crisis’ whilst neglecting to mention that they have actually saved over £8bn since 2010.

'In the last parliament consumers were going to get a £50 reduction in premiums, yet now we are told the figure will be closer to £35. Another bill, another made up figure. The only guarantee here is that hundreds of thousands of working people are going to have their rights diminished and their access to free legal representation taken away.'

Yasmin Ameer, a brain injury specialist at Nockolds Solicitors, remarked: ‘We fully support any legislation to crack down on fraudulent whiplash claims and help reduce motor insurance premiums.

‘Insurers can now focus their efforts on this legislation, rather than continuing with their attempts to persuade the government to adjust the discount rate in their favour.’

Andrew Parker, head of strategic litigation at DAC Beachcroft, commented: 'It is important for society that car insurance remains affordable. There is no sign of the number of whiplash claims abating, despite significant improvements in vehicle safety and fewer reported accidents.  It may feel as if the government has not got much right in recent weeks but the commitment to continue with its plans for whiplash reform should be welcomed.'

Meanwhile, Mike Brockman, CEO of telematics insurance firm Insure The Box, said: ‘Whiplash reforms are welcome but long overdue. Young drivers in particular have seen disproportionate increases to their premiums due to a range of factors – not least the dramatic change to the Ogden rate – but this is at least a glimmer of hope for the vast majority of honest motorists who are subsiding the dishonesty of a small minority of others.

‘Any changes that lower costs and increase access to insurance for young people must be welcomed – the ability to drive opens up many opportunities, not least employment and education for those in more rural areas.

‘We have always taken a hard line on fraud at Insure The Box to protect our law-abiding customers, using telematics data to support claims investigations where we suspect accidents have been staged and claims exaggerated. Insurance Fraud is far from a victimless crime and we see the real damage that can be done by these incidents.

‘We welcome the Government’s appetite for change and would like to see detailed consultation on the nature of fraud and exaggerated claims in the motor insurance industry.’

View more reaction on the Civil Liability Bill here.

HS2

Angus Walker, partner and head of government and infrastructure at Bircham Dyson Bell, said: ‘The reference in the Queen’s Speech to the next phase of high-speed rail is a reference to the proposed High Speed Rail (West Midlands – Crewe) Bill from Fradley near Lichfield to the West Coast Main Line south of Crewe. This is planned to open in 2027, but given that this Queen’s Speech covers two years rather than one, there is less precision than usual about when the Bill will actually be introduced in parliament.’

Chris Plumley, Partner at international law firm Trowers & Hamlins, added: 'The commitment to public sector infrastructure has already massively benefitted our region through the commitment to the Curzon Street railway station and the multi-billion pound investment opportunity for the UK Central Hub near to Birmingham Airport.

'This is a project we are heavily involved in through our work advising the UK Central Solihull Urban Growth Company (UGC) which is the facilitating body overseeing the fantastic transformation of that site.

'HS2 will bring not just increased capacity to our rail network but will unlock significant regeneration and development opportunities in that area. From a real estate perspective, this creates significant value and opportunities for businesses, house builders, the entertainment industry, and manufacturing and is a very welcome part of this Queen's Speech.'