Last week both houses discussed the announcements made in the Queen's Speech. We briefed MPs and peers on Brexit, justice and constitutional affairs issues. As a result, the Law Society was mentioned by Lord Beecham who called for the government to ensure that the Courts Bill contains a provision for qualified legal representatives to cross-examine victims of domestic abuse, as suggested in our briefing.
As expected, the Speech passed unamended with a majority of 14, with the DUP providing support to the government. We will continue to monitor the upcoming bills:
- Civil Liability Bill
- Courts Bill
- Draft Domestic Violence and Abuse Bill
- Repeal Bill
- Immigration Bill
- International Sanctions Bill
- Trade Bill
- Data Protection Bill
Bob Neill MP, former chair of the Justice Select Committee, asked whether the government would consult with the Bar Council and the Law Society to discuss its proposal to identify and appoint an independent public advocate to ensure equality of arms in representation in the Grenfell Tower inquiry. Read our Grenfell Tower press release here.
The Lord Chancellor was interviewed by Joshua Rozenburg on Law in Action on Radio 4 on Tuesday, where he reiterated the constitutional significance of the role of Lord Chancellor, as distinct from Justice Secretary. In relation to the court reform programme, he pointed out that it should lead not only to swifter justice for litigants, but to better conditions for judges, court staff and juries. He said that legislation was not the only measure to deliver change, and he was looking at wider measures including using technology and alternative dispute resolution.
The Lord Chancellor also confirmed that the LASPO Review was being carried out at the moment, and this would inform any decisions he made about legal aid. On Thursday we published our report LASPO: Four Years on, which reviews the legal aid changes introduced under the Act.
This week in Parliament
Monday 3 July
House of Commons
- Home Office oral questions
Tuesday 4 July
House of Lords
- Oral questions: criteria and specific objectives for Brexit; and forging a deep and special partnership with the EU - Baroness Ludford
- Debate: European Union Committee report: 'Brexit: acquired rights' - Baroness Kennedy of The Shaws
- EU Justice Sub-Committee - Oral Evidence Session - Brexit: consumer protection rights - Mr Lewis Shand Smith, Chief Executive, Ombudsman Services
Wednesday 5 July
Thursday 6 July
House of Commons
- International Trade oral questions
- Business Questions
- General debate: Exiting the European Union and Global Trade
House of Lords
- Debate: government's plans to protect and support victims of domestic violence and abuse - Baroness Manzoor
Friday 7 July
Last Week in Parliament
Monday 26 June
House of Commons
Queen's Speech Debate - Brexit and Foreign Affairs
The House debated the Queen's Speech with a focus on Brexit and foreign affairs. The Law Society briefed legally qualified MPs on our key priorities for Brexit, the Repeal Bill and the Immigration Bill ahead of the debate.
Main points made by the Secretary of State for Exiting the EU, David Davis MP
Dispute mechanism -Davis recognised that the new UK-EU relationship must be overseen by a new and independent impartial dispute mechanism. However, he noted that it could not be the European Court of Justice (ECJ). He said that no nation outside the European Union submitted to the direct jurisdiction of the ECJ. He said that the aim was not for something like the European Free Trade Agreement court but it would be for an independent arbitration arrangement, such the one in the EU-Canada Comprehensive Economic and Trade Agreement.
Repeal Bill - Davis said that the Bill would bring in rights and freedoms without qualification, without limitation and without any sunset clauses. He also said that any material changes would be dealt with by subsequent primary legislation. Davis said that the bills in the Queen's Speech would be the "first tranche of bills and it will not be our last".
Main points by the Shadow Secretary of State for Exiting the EU, Sir Keir Starmer QC MP
EU citizens - Sir Keir noted that the EU nationals agreement had to be for the lifetime of EU nationals. As no government could bind the next, EU nationals needed some mechanism external to our parliamentary regime to underpin their rights. The Supreme Court was not sufficient as if legislation was changed the Court would have to apply that legislation. Sir Keir said it was a "pretence that this can all be done within our courts and our own jurisdictions".
No deal - Sir Keir continued that no deal was not a "viable or tenable option" for the UK (and that the EU needed a deal).
Single market and customs union - Sir Keir went on to explain Labour's position on retaining the benefits of the single market and customs union by saying the outcome Labour wanted was "no tariffs for goods going across from us to the EU, and vice-versa; no new red tape at customs, including rules of origin; and a deal that works for services as well as for goods." He noted two issues that needed to be addressed: that the UK was released from all regulatory obligation, which could undercut EU countries economically; and that the UK could be flooded with goods that didn't meet European standards. He noted that the customs union should be left on the table as "an option".
Transitional arrangements - Sir Keir stressed that transitional arrangements would give the UK time to get a model or framework that could deliver the exact same benefits as the single market and the customs union.
Dispute mechanism - Sir Keir said that to have a meaningful and ongoing relationship with the EU, a court-like body would be needed to settle disputes. In this he was referring to one that could adjudicate on not just to state-to-state disputes, but business-to-business disputes and individual-to-individual disputes.
Charter of Fundamental Rights - Sir Keir noted that the Charter of Fundamental Rights was missing from the Bill.
Read the transcript in full.
Tuesday 27 June
Cabinet Ministers' speeches on Brexit
Secretary of State for Exiting the EU
, David Davis MP, made a speech to the Times CEO summit where he made the following points:
- Brexit will only be able to be delivered if government and business worked hand in hand, noting the need for input from customs to immigration.
- The more certainty given to businesses, the more confident they will go out and invest.
The UK is a world leader in engineering, life sciences, medicine, media, commerce and law.
- On citizens rights, the UK will continue to recognise current qualifications gained across the EU, and request that EU member states will do the same for UK citizens.
- The government recognises the need for an implementation phase to allow businesses on all sides to adjust and provide a smooth and orderly glide path to the new arrangements.
The Chancellor of the Exchequer, Philip Hammond MP, made a speech to the CDU Economic Council Annual Conference. The key points of interest made were:
- There are common challenges with EU, which go far beyond Brexit. He noted security challenges including Russia and terrorism.
- It is crucial that the UK and EU seek to maintain a close and mutually beneficial relationship between post Brexit.
- There are two risks that threaten a positive Brexit outcome:
- An outcome risk: allowing petty politics to interfere with economic logic, and so the UK ends up with a suboptimal solution that fails to maximise mutual benefit.
- A process risk: transitional arrangements cannot be agreed to get to the new relationship without damaging business confidence and disrupting cross-border trade and investment along the way.
- On transitional arrangements, an early agreement was important to "educe uncertainty, unlock investment decisions, instil business confidence and protect jobs and prosperity".
- He specifically mentioned the need for good cross-border collaboration on financial services supervision and noted good examples around the world.
House of Commons
Business, Energy and Industrial Strategy oral questions
The Business, Energy and Industrial Strategy (BEIS) questions took place in the House of Commons. Bob Neill MP (Chair of the Justice Select Committee from 2015-17) asked the BEIS Secretary whether he would have regard for the transition periods to be based on the reality of business practice, rather than on arbitrary considerations. He noted the need for contractual and legal certainty for those who were entering into legal obligations so that they knew what would continue to be enforceable once the UK had left the EU. The BEIS Secretary noted that it was "an excellent point".
House of Lords
Queen's Speech Debate - justice and constitutional affairs
The house debated justice and constitutional issues raised in the Queen's Speech. We briefed peers ahead of the debate and the Law Society was mentioned by Lord Beecham in relation to the Courts Bill.
The debate focused on a wide range of issues, including civil justice reform and the constitutional implications of Brexit. Those relevant for the Law Society were:
Lord Beecham (Lab) mentioned the Law Society's request that the Bill should contain a provision for qualified legal representatives to cross-examine victims of domestic violence: "we join the Society in commending proposals to strengthen the law relating to domestic violence and abuse, and in particular its extension to child abuse."
Lord Faulks (Con) said that the Courts Bill would make the courts cheaper and more accessible.
- He also pointed out that the online court was welcomed, if it increased access to justice without disadvantaging the digitally challenged: "I understand why some are sceptical about it; justice must be not only done but seen to be done."
Civil Liability Bill
Lord Faulks welcomed the announcement of the Civil Liability Bill that aimed to "clamp down on what has undoubtedly been a racket in whiplash claims". However, he said that it was important that genuine claims could be compensated.
- He also argued that any reductions in premiums would be eroded because of the alteration of the discount rate: "this alteration is, to put it kindly, surprising. Not only will this change affect insurance premiums but it will cause an enormous increase in the size of claims of medical negligence against the NHS and others".
Viscount Goschen (Con) said that he was hoping that the Bill would strengthen the regulation of claims management companies, and would ensure that senior executives would be held personally liable for the actions of their businesses.
Lord Beecham asked why the government intended to introduce a fixed tariff system. He also pointed out that insurance companies had shown no intention of reducing premiums costs despite making very large profits: "the real problem here is the parasitic and effectively underregulated claims industry".
Baroness Williams of Trafford, the Minister of State for Home Office, highlighted the importance of the Draft Bill on domestic violence.
- She added that the Bill would be accompanied by a full programme of non-legislative measures and by £20 million funding announced in the last Budget.
Baroness Newlove (Con) welcomed the government's decision to appoint a domestic violence and abuse commissioner, adding that the commissioner should be given appropriate statutory powers, including ensuring that key agencies had a duty to co-operate with the him or her. The new commissioner would also need to be properly resourced.
Lord Marks (LD) asked whether the government was able to confirm the original timetable for completing the review (April 2018) and whether the review would address the damage caused by reductions in legal aid, particularly in housing and social welfare law. He also asked if the government would support more exceptional case funding and simplified access to legal aid for domestic violence victims.
Lord Faulks said he hoped that the government would be take into account any recommendations made by Lord Bach, in his review of LASPO, as access to justice must be maintained.
Lord Paddick (LD) noted that the government appeared to have abandoned plans to scrap the Human Rights Act.
- He argued that the UK needed to remain within the jurisdiction of the European Court of Justice (ECJ), which adjudicates on common standards. He added that "a free trade deal, a European arrest warrant and a host of other issues essential to our prosperity and security depend on the ECJ".
Lord Thomas of Gresford (LD) called for the government to continue our membership of Europol, the European arrest warrant, Eurojust, the European Criminal Records Information System, and the EU prisoner transfer agreement.
Lord Marks noted that if the government was determined to adopt all new EU law for the sake of consistency and good sense, it should also commit to staying within the jurisdiction of the ECJ.
You can read the transcript in full here.
Wednesday 28 June
House of Lords
Queen's Speech Debate - Exiting the European Union
The House continued to debate the Queen's Speech focusing on Exiting the EU. A prominent theme was the European Court of Justice. The Law Society briefed before the debate and our priorities on civil justice co-operation, criminal justice co-operation and the need for transitional arrangements were raised on a number of occasions. The key points were:
European Court of Justice (ECJ)
Lord Brown of Eaton-under-Heywood (Crossbench) said that the ECJ had "been absurdly and unfairly demonised by Brexiteers." He noted the red line on it could harm the continuation of co-operation in areas such as the European arrest warrant. On the EFTA court, he said the difference with the ECJ was that the national supreme courts of EFTA states were not obliged to refer questions of EU law to that court and that EFTA court decisions were, strictly speaking, advisory only and not legally binding in the national court.
Baroness Kennedy (Lab)said that cross-border relationships required cross-border law, and supranational bodies were needed to deal with disputes. She praised the quality of UK judges but said that if there was a dispute with, say Poland over a Euro-warrant, they would not want it decided by UK courts but something independent of both jurisdictions. She specifically stated that if the UK wanted to be part of the Euro-warrant and Eurojust, it had to "get our minds set on the fact that we need to have [international] courts".
Lord Owen (Ind Social Democrat) said due to the time scale of Brexit there was no time to negotiate a new mechanism for settling dispute and that we should "seize an existing vehicle, operate within it and try to formulate solutions".
Lord Howard of Rising (Con) said you cannot claim to had left the European Union if the ECJ remained the ultimate legal authority in Great Britain. He also said that being one-twenty-eighth of a decision-making body, with the inevitable compromises and deals, was not the same as making your own laws.
Lord Spicer (Con)said we cannot continue with the ECJ as brought "alien law in this country" and it had a political agenda.
Baroness Ludford (LD)said that the government's "fetish about European judges" was "putting dogma before real interests in crime and security co-operation".
- In responding for the government,Justice Minister Lord Keen said that the EFTA Court was "little more than a fig leaf" as it invariably "rubber-stamped all decisions of the ECJ in so far as they are relevant to the EEA and EFTA." He went on to say that the EU had more than 40 trade agreements with non-EU countries and these countries were not subject to the jurisdiction of the ECJ.
Civil justice co-operation
Baroness Hayter noted there were urgent matters to be dealt with, such as family law, where civil justice co-operation provides certainty, with automatic recognition and enforcement of judicial decisions across the EU. She noted they were important for insurance, insolvencies, contract law and investment so must be part of any Brexit deal.
Lord Wallace (LD) noted that London was a global centre for international arbitration and civil and commercial law, including European law. He expressed a need for agreed legal framework for future relations with the EU in which the ECJ would have to play a role to "provide certainty for individuals and businesses."
Baroness Massey of Darwen (Lab)discussed the benefits of cross-border recognition and the enforcement of family judgments, including contact and residence issues in member states and child maintenance arrangements.
Baroness Deech (Crossbench) said that the Lord Chief Justice had suggested that the Law Commission should assist with legislating for Brexit in areas that were more technical than political. She quoted the Lord Chief Justice's example of Rome I and Rome II regulations, which set out the choice of legal rules in cross-border conflicts.
Lord Keen stressed that the mutual interest of the enforcement of family law decisions between the UK and the EU. He noted that there was no reason why that mutual agreement within Brussels IA should not continue after exit from the European Union, albeit not as a provision from within the European Union itself. He said that "these regulations tend to have their origins, their foundation, in the Hague convention, which predates the European Union itself." He also recognised the importance of mutual recognition in the context of commercial judgments and said that there was mutual interest in maintaining the ability to recognise choice of law and jurisdiction, and the ability to recognise the enforcement of judgments.
Criminal justice co-operation
Baroness Hayter said it was crucial to retaining access to EU databases as they were vital in the fight against international crime and terrorism. She asked the government whether they were willing to share some sovereignty for this and for our continued involvement in Europol, Eurojust and the European arrest warrant, while of course maintaining EU privacy laws.
Baroness O'Loan (Crossbench) said that any lacunae between the UK and the EU in criminal justice and security co-operation would be exploited by terrorism, in whatever form it manifested itself at the particular time. He said that the UK would have to negotiate with 27 individual states to replicate these arrangements unless the fact of our very significant contribution on this front can facilitate the negotiation of an EU-UK agreement, which paralleled and worked in complete harmony with EU structures.
Baroness Hayter said that government's acceptance of a phased transition was urgent to avoid unnecessary disruption and dangerous cliff edges.
Baroness Finn (Con) said a transition period would allow the UK to mitigate the uncertainty of the negotiating period by guaranteeing the avoidance of a cliff edge, where businesses would not be clear under what legal and regulatory parameters they will be operating. She also said it that the right transition vehicle was the European Economic Area.
During the debate three motions were tabled, although none of them passed:
Baroness Hayter tabled a motion to recognise that "no deal is the worst possible deal and that the UK seeks to negotiate a Brexit that prioritises jobs and the economy, delivers the exact benefits of the single market and customs union, ensures there is no weakening of co-operation in security and policing and maintain the rights of UK and EU citizens".
Lord Adonis (Lab) tabled a motion of regret that the Queen's Speech did not include a proposals to negotiate continued membership of the European Single Market and Customs Union. This motion was voted on there were 104 in favour and 172 against.
Lord Armstrong (Crossbench)tabled a motion to suspend the negotiations and to withdraw the notification of Article 50.
Thursday 29 June
House of Commons
Attorney General oral questions
Bob Neill MP (Con) asked whether the government would consult with the Bar Council and Law Society to discuss its proposal to identify and appoint an independent public advocate to ensure equality of arms in representation in the Grenfell Tower inquiry as announced in the Queen's Speech.
The Solicitor General, Robert Buckland QC MP, reiterated that the government intends to ensure that bereaved families and injured people are fully involved and supported during the inquiry. He added that it was important to have quality advocacy.
Friday 30 June
Houses not sitting