As Parliament enters the dying days of this year's session, John Ludlow looks at the bills that have yet to make it on to the statue book and what concessions may still be made to ensure they do


With the party conference season over and Parliament returned, we are now in the dying days of the session. Commonly known as the 'overspill', this is the time when the various loose ends are tied up and the government does the necessary deals with opposition parties to ensure that it gets its last, straggling bills onto the statue book before prorogation.



Not that there is much left to agonise over. A great many of the government's Bills got through, as expected, before the summer recess began in July, so it is not as if the government is overburdened with legislation. In fact, the very final sitting week saw a clutch of measures receive Royal Assent, including the Tribunals, Courts and Enforcement Bill, the Offender Management Bill and the controversial Mental Health Bill and Corporate Manslaughter Bill.



The few Bills that do straddle the summer recess are often good candidates for last-minute revision and concessions. This is simply because the government does not have time on its side and may not want to risk losing a whole Bill simply because of the opposition of the Lords on one or two issues.



The Legal Services Bill is in this position and so we may see some further movement. Not that the government has failed to make concessions. Despite overturning the earlier Lords changes en bloc, the Ministry of Justice has come up with a generous package of amendments, due to be debated on 15 October (see [2007] Gazette, 4 October, 20). These include a role for the Lord Chief Justice in appointments to the new Legal Services Board (LSB) and a requirement to consider access to justice issues in decisions to grant alternative business structure licenses. These changes have been long advocated by the Law Society and it is good to see the government finally concede to common sense.



However, there are still some areas where the Bill could be improved. Of most importance are the changes necessary to make it clear that the LSB should only intervene in the work of front-line regulators where they are clearly failing or where their actions are unreasonable. If this is not made explicit in the Bill, then the LSB is more likely to take an interventionist role, thereby undermining the work of the regulators.



There is also a well-grounded concern that the government's exemption for trade unions has been drafted so wide as to exempt all reserved legal services. This would mean in theory that a trade union could in future provide, for example, representation in divorce proceedings or conveyancing services, without requiring to be regulated under the Act as all law firms will be. A narrower exemption would be more appropriate, which only applies to trade union services which are ancillary to their main function of representing employees in relation to their employer, such as advice in relation to an accident at work.



It remains to be seen whether the government will make these vital last-minute changes. If it does, they will probably take place at 'ping-pong', that final stage when both the Lords and Commons have to agree the draft prior to Royal Assent.



Other Bills still to complete their passage include the Serious Crimes Bill, where there is still some disquiet concerning the wide ambit of the new serious crime prevention orders and the lack of proper safeguards for data sharing. The UK Borders Bill also has one remaining stage, and there remains concern here around a number of issues, including the lack of accountability of immigration officers when exercising their new powers to detain. Once again, we will almost certainly have to wait until 'ping-pong' before any government concessions are clear.



In most cases, the government is prepared to concede on one or two issues in this final ping-pong, but there is much horse trading between Bills. Where the Lords and Commons are not in agreement on a particular issue, it may be a question of which side blinks first, though it is well to remember that, for good historical and constitutional reasons, it is the Lords who usually back down.



The Criminal Justice and Immigration Bill, however, is in a different category to other measures this session. It is technically a 'carry-over' Bill, which can continue its passage into the next session. It is likely to complete second reading and, perhaps a few days of public Bill committee, before the session closes at the end of October.



There has been much criticism of this huge, 'portmanteau' type Bill, in particular for ending the Court of Appeal's right to refuse to uphold a conviction based on an abuse of the investigation or prosecution processes, as well as for allowing designated caseworkers to undertake summary trials or contested bail applications in relation to serious offences. However, the government will be under no compulsion to make concessions before the House rises. Lobbying on this Bill will therefore continue well into the next session and, indeed, into next year.



Such 'carry-over' Bills make a lot of sense, particularly in the extra time they give to debate and to scrutiny. This is useful to lobbyists and to all who want to see better legislation. However, if they have a downside, it is that they are rarely vulnerable at the tail-end of the session since they will usually receive Royal Assent around Easter. This takes away a very useful level afforded to opposition MPs and to peers, and I am sure that the irony of this situation has not been lost on them.



John Ludlow is head of the Law Society's parliamentary unit