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Brexit Motions and EU Human Rights

10 April 2017

The House of Commons and House of Lords are both on recess. The House of Commons will return on Tuesday 18 April. The House of Lords will return on Monday 24 April.


Last week, the House of Commons was on recess. Despite this, the Exiting the EU Select Committee published its report responding to the Government’s Brexit White Paper, and the Joint Committee on Human Rights published the Report following its Business and Human Rights Inquiry. The Law Society received mention in this report following our submission of written evidence, highlighting our assessment of the National Action Plan.

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The House of Lords continued to sit this week and there were a number of motions tabled on Brexit including on EU citizens’ rights and a parliamentary vote on the UK-EU deal.

This week in Parliament

The House of Commons and House of Lords are both on recess.

Last week in Parliament

Monday 3 April

House of Lords

Nothing to report

Tuesday 4 April

House of Lords

Lords debate motions on EU citizen rights and parliamentary votes on the UK-EU deal

On Tuesday, the House of Lords debated two motions on the rights of EU citizens and the need for a Joint Committee to consider options for how the UK Parliament will vote 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 report by 31 October 2017. The two motions reflect the amendments made by the Lords to the Article 50 Bill, which were later removed by the Commons during the ‘ping pong’ stage of the Bill.

EU citizens motion
The Government’s response to the motion on EU citizens was:

  • Status of EU nationalsLord Bridges, Parliamentary Under-Secretary of State at the Department for Exiting the European Union, repeated the Government's line that it wishes to see the status of both UK and EU nationals resolved at the same time and as early as possible in negotiations. The only circumstances in which this would not be possible would be if the status of UK nationals was not protected
  • Form of agreementOn the point made by a number of Lords that an agreement on this may not be reached before the end of the two years given the approach of “nothing is agreed until everything is agreed”, Bridges said that there are a number of ways in which such an agreement could be reached. He reiterated comments made by Secretary of State, David Davis, that this element of negotiations could be done through an exchange of letters between the UK, Member States, the Commission and the Council, and added he was unable to say anything more than this.
  • Reporting to the House Bridges said that if there is anything to report to Parliament on this issue, the Government will do so as soon as possible. Bridges stressed that as the European Council will only get the guidelines for its negotiating position formally adopted on 29 April, and then the Commission will need to agree on a mandate for its negotiating position, if a statement were to be made before the end of the Parliamentary session it would raise expectations as to what could be said as negotiations would only just be beginning.

Parliamentary vote on the outcome of the UK-EU negotiations

The Government’s response to the motion on a parliamentary vote was:

  • Parliamentary voteThe Government has been clear that there will be a vote in both Houses on the final agreement and that this will happen before the European Parliament votes on the agreement. The vote will be either to accept the final agreement or leave with no agreement
  • Constitutional requirements On the point raised about need for further legislative cover for withdrawal to protect the Government from further legal challenge, Bridges said that the Supreme Court, in the Miller case, did not rule that anything further than the legislation required for the Government to trigger Article 50 was required to satisfy the UK’s constitutional requirements
  • Joint Committee Bridges said that there is no compelling reason for a Joint Committee to be set up

House of Commons

Exiting the EU Select Committee publishes response to Government’s Brexit White Paper

The Exiting the EU Select Committee has published its report, The Government’s negotiating objectives: the White Paper. It is reported that six members of the Committee have refused to put their names to the report.

The main points:

Timescales for reaching agreement Starting from a position of shared regulation might speed things up compared to negotiations with Canada to put in place the Comprehensive Economic and Trade Agreement (CETA) – but there is no precedent for a deal of this scale covering goods and services being done in two years.

UK/EU FTA
  • The Government will need to provide clarity on how it will address divergence in rules and standards, and resolve trade disputes, outside of the jurisdiction of the Court of Justice of the EU (CJEU).
  • London is a ‘pre-eminent’ global financial centre and the financial services industry supports a large number of jobs in London and across the UK. It is in both the UK's and the EU's interests to ensure minimal disruption when the UK leaves the EU. The Government should seek an arrangement that allows UK based firms to continue to provide financial services freely across Europe. Financial and professional services will require time to adjust to any new trading arrangements and we should seek to agree a phased process of implementation.
  • The Government must seek to maintain uninterrupted UK–EU data flows by securing a data adequacy agreement with the EU before the end of the Article 50 negotiations.

FTAs with non-EU countries - Government must seek clarity on whether UK can be grandfathered into existing EU/ FTAs.

Co-operating on fight against crime and terrorism - There should be scope for an ‘imaginative solution’ to enable the UK to continue some level of involvement with Europol for the benefit of all European citizens. The value of maintaining participation in the European Arrest Warrant – or at least securing an analogous agreement – has also been commended to the Committee.

Immigration - The UK's own new arrangements for migration from the EU will need to be flexible enough to meet the needs of the economy across the UK. This includes a broad range of sectors, both high and low skilled, including scientists, bankers, vets, care workers, health professionals and seasonal agriculture workers. Government should also give thought to a geographical basis for immigration.

Minimising disruption - The report states that the impact caused by leaving the EU is likely to vary across sectors. The Committee argues the Government should seek implementation phases as early as possible.

Customs Union - The report identifies that Government has said it will leave the European Union Customs Union (EUCU) but has been ‘vague on the characteristics of their preferred customs arrangement’. The Government must provide more clarity on this and how its preferred option will differ from the current customs union.

Wednesday 5 April

The Joint Committee on Human Rights published its Report on Business and Human Rights

The Law Society is mentioned under the UK Leadership heading [quote]:

Several meaningful changes in both policy and statute have been made in recent years, as part of implementing the National Action Plan. Among changes described by witnesses are the following:

  • The Law Society of England and Wales cited “the introduction of the Modern Slavery Act 2015 which consolidated existing legislation, toughened penalties for offences (including a maximum sentence of life imprisonment) and provided safeguards for victims”.
  • The Law Society also noted the “amendments to the Companies Act 2006 on monitoring and accountability”.

Main points of the report:

The Committee welcomes the Government’s Updated National Action Plan on human trafficking, but are concerned that it is not prescriptive enough;

  • They call for clarity in how S54 (transparency in supply chains) of the Modern Slavery Act (MSA) applies to public procurement;
  • They call for clarity about which Government department is responsible for coordinating the policies around the MSA;
  • They ask the Government to facilitate the passage of Baroness Young of Hornsey’s Modern Slavery (Transparency in Supply Chains) Bill, and to introduce laws to make reporting on due diligence for all other relevant human rights compulsory for large businesses
  • They are concerned that the bodies responsible for preventing human rights abuses and enforcing penalties are under-resourced
  • Their strongest criticism relates to access to remedies, or the lack of. They point to a number of obstacles to justice, including changes to limit legal aid provision, limits on the recovery of legal costs in these types of case, increases in court and tribunal fees, and the otherwise high costs of civil action. They recommend that the Government reduces fees payable by claimants when taking a case to an employment tribunal, which have had a significant impact on domestic victims (of modern slavery) accessing remedies.
  • With regards to penalties, they recommend that the Government brings forward legislation to impose a duty on all companies, including parent companies, to prevent human rights abuses, with failure to do so becoming an offence, along the lines of the relevant provisions of the Bribery Act 2010
  • Finally, they welcome the fact that the Government plans to include human rights clauses in all future bilateral trade agreements and encourage it to include provisions on enforcement, and to undertake human rights impact assessments before agreeing trade agreements.

House of Lords

Lords Committee takes evidence from former Eurojust presidents

The House of Lords EU Home Affairs Sub-Committee held its second oral evidence session as part of its inquiry examining the options for replacing the European Arrest Warrant (EAW) after the UK leaves the EU. The Law Society provided a witness for the first session, held 29 March.

The two witnesses for the session were Mike Kennedy and Aled Williams, both former Presidents of Eurojust. The key points made were:

  • Government position - Mr Kennedy said it’s hard to establish the Government’s exact position on the EAW, though he noted that the Home Secretary believes the EAW is a ‘successful instrument’ and said the difficulty is how it fits with not complying with, or following, the decisions of the Court of Justice of the European Union (CJEU) and that there will need to be a solution found that allows any redlines to be observed. Mr Williams agreed but said he isn’t sure that the ‘understandable concern’ about the CJEU is going to have an impact on practical cooperation as most interactions will remain intergovernmental, which mitigates against the need for supranational court decisions.
  • Negotiations - Kennedy said the conversations will be large and wide-ranging. He said that if there is a redline on the European Court of Justice (ECJ) there are some possible compromises but that the EAW has so far worked for the UK without the need for the CJEU. Williams noted that it will be very hard to reach an agreement within the two year deadline, and that if there is a redline on CJEU cooperation it is difficult to see how the UK as a non-member state will be able to persuade the EU27 to put a mechanism in place that would be mutually satisfactory. 
  • Dispute mechanisms - Kennedy said he has not made any assessment of what a bespoke adjudication arrangement could look like. Williams said the only two examples are those between Norway and Iceland which he said is not in force, and the possibility of an adjudication role for Eurojust which would have its own problems without UK membership. He added that Eurojust will continue to assist with conflicts between jurisdictions. Kennedy noted that Norway does respect the rulings of the ECJ and that it will always have a “persuasive authority” which its judges will use to influence their cases even if there are no binding precedents.
  • 1957 Council of Europe Convention - Kennedy said it would be a ‘pity’ to have to fall back on the convention, as the timelines for extradition were ‘horrendous’. 
  • Transitional arrangements - Kennedy said the status quo could continue if there is goodwill on both sides which ensures legislation is secured in both jurisdictions. He added that any alternative to the ECJ will be hard to negotiate and agree, and that it will be easier for the UK to adopt the position of the ECJ during any transition as the alternative could take a long time to be agreed

Thursday 6 April

No business of interest

Friday 7 April

Houses not sitting

Tags: Law Society | 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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