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Article 50 is triggered and the Law Society gave evidence to Prisons and Courts Bill

03 April 2017

This week the House of Commons will begin its Easter recess and will return on Monday 18 April. The House of Lords will continue to sit with a number of motions on Brexit and evidence sessions on co-operation with the EU on criminal justice and security.


Last week the Government sent a letter to the European Council to formally invoke Article 50 and start the process of the UK’s withdrawal from the EU. The Government also published a White Paper on the Great Repeal Bill. The main elements of the Bill will be: repealing the European Communities Act 1972, converting EU law into UK law and giving the Government the powers to correct laws which do not operate appropriately outside the EU. The Bill is likely to be formally announced in the Queen’s Speech which is likely to be in May. Read our press release.

Dr Anna Bradshaw, Member of the Society's EU Committee, gave evidence to the EU Lords Home Affairs Sub-Committee on the European Arrest Warrant on Wednesday.

On justice issues, MPs are now considering the Prisons and Courts Bill in a Public Bill Committee. Last week the Law Society’s Head of Justice, Richard Miller, gave evidence to the Committee on the court changes outlined in the text. We are campaigning to ensure access to justice is not undermined on the Bill. Help our campaign by contacting your MP through our online system.

This week in Parliament

Monday 3 April

House of Lords

Committee of the Whole House - Criminal Finances Bill  

Tuesday 4 April

House of Lords

  • Motion -  Baroness Hayter of Kentish Town to move to resolve that a Minister of the Crown do report to this House by the end of this Session on the progress made towards ensuring that qualifying non-UK European Economic Area nationals and their family members are able to retain their fundamental EU-derived rights after the UK has left the EU.
  • Motion -  Baroness Smith of Basildon to move that it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the terms and options for any votes in Parliament on the outcome of the negotiations on the UK’s withdrawal from the EU, including how any such votes be taken before any agreement is considered by the European Parliament; and that the Joint Committee do report by 31 October 2017

Wednesday 5 April

House of Lords

Draft non-contentious probate fees order - motion to approve 

EU Home Affairs Sub-Committee – Oral evidence session

  • Mr Mike Kennedy, Former President, Eurojust
  • Mr Aled Williams, Former President, Eurojust

Last week in Parliament

Monday 27 March

Nothing to report

Tuesday 28 March

House of Commons

Law Society gives evidence to Prisons and Courts Bill Committee

The Law Society’s Head of Justice, Richard Miller, gave evidence to the Prisons and Courts Bill Committee where he discussed online courts, virtual hearings and cross examination in family justice. He gave evidence alongside Professor Richard Susskind; Penelope Gibbs, director of the charity Transform Justice; Polly Neate, CEO of Women’s Aid; and Jenny Beck, co-chair of the Legal Aid Practitioners Group.

The main points raised were:

Online courts

  • Richard Susskind noted that an online process for low value, small claims would represent an improvement of the system.
  • He also noted that it was wrong to suggest that lawyers would be excluded from the process in more complicated cases.
  • However, he said that 'we should think big, but start small'.
  • Richard Miller highlighted that the system would work most effectively if there was good legal advice at appropriate points within the process.

Virtual hearings

  • Penelope Gibbs argued that there are 'huge' problems about the relationship between the lawyer and the client: 'Every piece of research that exists suggests that that communication is impeded'.
  • She pointed out that it had also led to a fewer people who used a lawyer: 'I have not met one lawyer now who thinks they can have the same relationship and the same communication with somebody who is on videolink as if they are in the court with them'.
  • Richard Miller explained the risks related to the use of video links in preliminary hearings.
  • He also highlighted that if technology had developed since 2010, the real problem was the technology actually available in the courts.
  • Richard Susskind noted that it was 'very dangerous' to make assumptions about the use of technology in courts based on a report that was written in 2010.
  • He added that for people who had grown up in the internet era, interaction via video may be more comfortable and comforting than it would for previous generations.

Cross-examination in family justice

  • Polly Neate and the other witnesses welcomed the provisions in the Bill.
  • She noted that they could be improved in relation to the level of judicial discretion in the other cases, as judges' understanding of domestic abuse was often 'simply extremely inadequate'.
  • Jenny Back recommended widen the last provision for the other cases 'to make sure that the representation covers the victim cross-examining in those cases as well'.
  • Richard Miller said that the provision about instances where someone had been convicted or charged ought to cover instances where they had been cautioned for the offence as well.

Read the full transcript.

Prisons and Courts Bill Committee take evidence on whiplash compensation reform

The Prisons and Courts Bill Committee also held an evidence session on whiplash compensation reform. Witnesses included Brett Dixon, Association of Personal Injury Lawyers vice-president; Rob Townend, Aviva UK claims director; and James Dalton, Association of British Insurers’ director of general insurance policy. Read the transcript of the session.

Wednesday 29 March

Government

Prime Minister triggers Article 50

On Wednesday, the Prime Minister sent a letter to the President of the European Council, Donald Tusk, giving him notice of the UK’s decision to trigger Article 50. In the letter the Prime Minister outlined the following proposed principles for the discussions:

  1. Engage constructively and respectfully, in a spirit of sincere cooperation - May said the UK will not be ‘cherry picking’ from the four freedoms (movement of good, workers, capital and services), and said that she knows that UK companies, as they trade within the EU, will have to align with rules agreed by institutions of which the UK is no longer part.
  1. Put citizens first - May noted that she aims to strike an early agreement about UK citizens living in Member States and EU citizens living in the UK.
  1. Work towards securing a comprehensive agreement - May said the UK would like to have economic and security cooperation, and that she believes it is necessary to agree the future partnership alongside the withdrawal deal.
  1. Work together to minimise disruption and provide certainty - May says that she wants to agree on an implementation period early in the process, in order to provide investors, businesses and citizens with certainty and time to adjust.
  1. Pay attention to the UK’s unique relationship with the Republic of Ireland and the importance of the peace process in Northern Ireland - May said she wants to avoid a return to a hard border between the Republic of Ireland and the UK, and to be able to maintain the Common Travel Area. She also added that there is a responsibility to continue to uphold the Belfast Agreement.
  1. Begin technical talks on detailed policy areas as soon as possible, but prioritise biggest challenges - May says that agreeing a high-level approach to the issues arising from withdrawal is an early priority, but that the new free trade agreement the UK is seeking will require detailed technical talks. She wants to prioritise how to manage the evolution of the UK’s and EU’s regulatory frameworks to maintain a fair and open trading environment and how disputes are resolved. She said that her officials will put forward detailed proposals for ‘deep, broad and dynamic cooperation’.
  1. Continue to work together to advance and protect shared European values

During the debate on the Prime Minister’s statement on Article 50, Chair of the Justice Select Committee Bob Neill MP asked the Prime Minister whether she would accept that judicial and legal services are crucial to supporting her priority of supporting financial services. The Prime Minister noted the strength of legal services and the UK and EU’s co-operation in judicial matters. She said this is why the Lord Chancellor has been working with the judiciary on this issue to ensure the right level of co-operation in justice continues in the future.

House of Lords

President and Deputy President of the Supreme Court give evidence to the Constitution Committee

  • Brexit – Lord Neuberger said that after Brexit while we still had identical legislation it made sense for us to stay in touch with EU Courts. It was not yet clear from Parliament what weight should be given to the Court of Justice of European Union (CJEU) when determining questions of EU (equivalent) law after Brexit.
  • Constitution - The Committee asked about legal certainty, and whether the UK needed a formal constitution (and whether the Supreme Court could take on a formal role as Constitutional Court). Lord Neuberger said there were strong arguments on both sides. He said that he was probably no more qualified to comment than most people, but would be wary of a single written constitution.
  • Media attacks on the judiciary – Lord Neuberger said that the response to the Divisional Court in some papers was inappropriate.
    • He said the judiciary had felt personally attacked, and there was considerable dismay about the response to the Divisional Court.
    • Specifically on the Lord Chief’s comments on the Lord Chancellor’s response, Lord Neuberger said that both the Lord Chancellor and judges had a responsibility to explain the role of judges.
    • Lord Beith pointed out that both the Lord Chief and President of the Supreme Court could not comment at the time as they were, or were to be, involved in the case.
    • Lord Neuberger said that in those circumstances he felt the Lord Chancellor had a particular role to play in speaking up at that point.
  • Regulation of legal services - Lady Hale said that the current regime for regulation is complex, but was a carefully worked out balance. She showed some concern for their view that that independence of the legal profession may be in conflict with consumer interests. She noted that the objective about an independent profession was a rule of law issue and she wanted to bring this to the attention of the Committee to ‘keep an eye on.’ 
  • Judicial appointments - Lord Neuberger said that his view was that the traditional recruiting ground was appeal courts and these were very male dominated, though are improving. He said they were encouraging applications from further afield.
    • Women - Lord Neuberger also identified that there is a problem with women being willing to put themselves forward, but that this is being improved too. He said that the Supreme Court could have part-time judges and said he had supported the legislation which stated in the Lords to allow this.
    • Judicial experience - Lady Hale added that judicial experience was not the most important factor for applications, but that evidence of being able to “make up your mind” was.
    • Age limits - Lady Hale said she would like to see some more youthful members appointed to the Court. She also said it was a shame people were precluded due to being able to serve only a few years due to age. Lord Neuberger said it was perverse that the age was decreasing when elsewhere they were going up or being removed altogether. He said he was actively working to encourage this.
    • Solicitors as judges - Lord Neuberger said that he thought there was still an “in built assumption” that High Court judges would be barristers rather than solicitors. He said there were many solicitors who would be extremely capable and he would be keen to see this overcome. Lady Hale said that the difference was around the operating model: if barristers took time out to sit, no one else lost any money. With partners, this is not the case.

Law Society gives evidence on European Arrest Warrant on EU Home Affairs Sub-Committee

Today, Dr Anna Bradshaw, member of the Law Society’s EU Committee, gave evidence to the EU Lords Home Affairs Sub-Committee on the European Arrest Warrant (EAW) alongside Andrew Langdon QC, Chairman of the Bar Council and Rosemary Davidson, 6 KBW College Hill.

The main points made by Dr Bradshaw on behalf of the Law Society were:

  • Support for the EAW - The Law Society supports the UK’s continued participation in the European Arrest Warrant or an equivalent mechanism. She added that are also aware of the interconnected nature of a number of criminal justice measures and they should be considered together.
  • Alternative models – The Law Society would support participation of in the EAW on a Norway/Iceland model. She noted the “wrinkle” that the agreement is still not in force. If the UK were to be part of the EAW under the Norway/Iceland model, a separate agreement would need to be negotiated with Norway and Iceland.
  • UK’s role in shaping criminal justice measures - The UK should also be mindful of the role the UK’s involvement in the development of criminal justice systems and the difference between inquisitorial and adversarial legal systems. She noted that the UK’s input has been for mutual recognition of each other systems rather than harmonisation.
  • Other international courts – Following a question on the different roles between the jurisdiction of the International Criminal Court (ICC) and the CJEU, Dr Bradshaw noted that such a model could not be transplanted to something like the European Arrest Warrant as they are very different systems.
  • Current impact of Brexit - Dr Bradshaw noted that since the EU referendum result people have tried to resist extradition requests. The Irish High Court rejected this resistance but we cannot currently confirm other member states. She also noted that the closer we get to a cliff edge the more people could try to test the validity of the current rules.
  • Falling back on the European Convention on Extradition (ECE) – Dr Bradshaw noted that it will be important that the Government confirms with other member states that they would ‘fall back’ on the ECE with individual member states – generally it will be possible to do so but there needs to be confirmation.

Thursday 30 March

Government

Government publishes Great Repeal Bill White Paper

On Thursday, the Department for Exiting the EU published a White Paper on the Great Repeal Bill. The three main elements of the Bill will be:

  1. Repealing the European Communities Act (ECA) 1972 - The Government needs to be in a position to repeal the 1972 EC Act on the day we leave the EU.
  1. Converting EU law into UK law, ensuring rules do not change overnight - The Bill will convert the existing body of EU law into domestic law, after which Parliament (and, where appropriate, the devolved legislatures) will have the opportunity to decide which elements of that law to keep, amend or repeal. 
  1. Creating the necessary powers to correct the laws that do not operate appropriately outside of the EU - Simply incorporating EU law into UK law will not be sufficient. A significant amount of EU-derived law, when converted, will not achieve its desired effect, for instance due to referring to the role of EU institution, regime or system. Government must therefore act to ensure that the domestic statute book will still function properly after departure. The Bill should also provide the Government with a further limited power to implement the contents of any withdrawal agreement reached with the EU into our domestic law without delay, where it is necessary to do so in order that we are ready to begin a new partnership from exit. 

The other key points were:

Future bills - The Great Repeal Bill will be followed by further Bills over the next two years to ensure the UK is fully prepared for withdrawal. Two examples are given – a Customs Bill to establish a framework to implement a UK customs regime; and an Immigration Bill “so nothing will change for any EU citizen, whether already resident in the UK or moving from the EU, without Parliament’s approval”.

Timing - The timing of the Great Repeal Bill and associated secondary legislation will run in parallel to the negotiation process under Article 50.

Court of Justice of the European Union (CJEU) - The Great Repeal Bill will not provide for any role for the CJEU in the interpretation of that new law, and the Bill will not require the domestic courts to consider the CJEU’s jurisprudence.

  • However, the Bill will provide for continuity in how EU-derived law is interpreted, by providing that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU.
  • It is proposed that the Bill will provide that historic CJEU case law be given the same binding, or precedent, status in our courts as decisions of our own Supreme Court.
  • EU-derived law will continue to take precedence over the other pre-exit law. However it will be open to Parliament to be able to change these laws whenever it is considered desirable.

Charter of Fundamental Rights - The Charter will not be converted into UK law by the Great Repeal Bill. However the Government’s intention is that the removal of the Charter from UK law will not affect the substantive rights that individuals already benefit from in the UK. Many of these underlying rights exist elsewhere in the body of EU law which will be converted into UK law.

Delegated Powers - The Great Repeal Bill will provide a power to correct the statute book, where necessary, to rectify problems occurring as a consequence of leaving the EU.

  • This will be done using secondary legislation, and will help make sure we have put in place the necessary corrections before the day we exit the EU.
  • There will be constraints on the use of delegated powers including, crucially, ensuring that the power will not be available where Government wishes to make a policy change which is not designed to deal with deficiencies in preserved EU-derived law arising out of our exit from the EU.
  • The Government will also ensure that the delegated power is appropriately time-limited to enact the required changes.

Devolution - The return of powers from Brussels in areas where the devolved legislatures have competence, such as environment, agriculture and transport, will create an opportunity to determine the level best placed to take decisions on these issues. It is the expectation of the Government that the outcome of this process will be a significant increase in the decision making power of each devolved administration. However this will be within the context of the need to ensure that stability and certainty is not compromised, and that the effective functioning of the UK single market is maintained.

Friday 31 March

Houses not sitting.

Tags: business | Law Society | Theresa May | Westminster weekly update | European Union | access to justice | human rights | Brexit

About the author

Alexandra Cardenas is Head of Public Affairs and Campaigns at the Law Society. Public Affairs manages the relationships with parliament and government. She is a dual qualified solicitor in England and Wales (2014), and Colombia (2002). Prior to the Society, she practised as a human rights lawyer and worked at Macmillan Cancer Support and Animal Defenders International.

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