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Launch of write to your MP for our early advice campaign, Second Reading of the EU (Withdrawal) Bill

06 February 2018

As part of our early advice campaign, you can now write to your local MP using our online system. Show your support by writing to your MP here – it only takes a few minutes. 


We will hold an event in Parliament on our early advice campaign at the end of the month and have discussed early advice with the Lord Chancellor.

Last week the Law Society gave evidence to the Lords EU Internal Market Sub-Committee on Brexit and non-financial services. The Law Society’s Head of International, Mickael Laurans, highlighted the need for legal services to continue to have mutual market access with the EU and that an agreement like the Comprehensive Economic Trade Agreement (CETA) with Canada would not be sufficient for legal services. This week we also released our report on the impact of CETA which you can read here.

On Tuesday and Wednesday, the House of Lords debated the EU (Withdrawal) Bill at Second Reading.  The Government said it is willing to work with peers on strengthening some elements of the Bill including giving the Lords Secondary Legislation Scrutiny Committee the same ‘sifting’ powers as the new Commons sifting committee, and will be bringing forward amendments to the devolution clauses in the Bill. However, Baroness Evans did stand firm on some elements of the Bill, in particular the use of Henry VIII powers and the Government’s position on the Charter of Fundamental Rights.

Today, we met with the new Lord Chancellor to discuss our priorities on Brexit, the Government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) and wider issues.

The European Scrutiny Committee will take evidence from the Sir Tim Barrow, Permanent Representative of the United Kingdom to the European Union and Robin Walker MP, Parliamentary Under Secretary for Exiting the EU.

The House of Lords will also have an oral question on ensuring those facing removal from the UK have access to adequate legal advice.

This week in Parliament

Monday 5 February

Lords

  • Oral Question –  Ensuring awareness of rights and obligations in respect of data protection and privacy - Lord Holmes of Richmond
  • Oral Question –  Ensuring those facing removal from the UK have access to adequate legal advice - Lord Roberts of Llandudno

Tuesday 6 February

Commons

  • Backbench Business –  General debate on housing, planning and the greenbelt
  • Exiting the European Union - Oral Evidence Session –  The progress of the UK’s negotiations on EU withdrawal
  • Committee Stage – Financial Guidance and Claims Bill
  • European Scrutiny - Oral Evidence Session - EU Withdrawal. Witnesses include:
    • Sir Tim Barrow KCMG LVO MBE, Permanent Representative of the United Kingdom to the European Union
    • Robin Walker MP, Parliamentary Under Secretary for Exiting the EU

Lords

  • EU Justice Sub-Committee – Oral Evidence Session - Brexit: enforcement and dispute resolution. Witnesses include:
    • Professor Catherine Barnard, Professor of European Law, Cambridge University
    • Mr Hugh Mercer QC, Chair of the Bar Council Brexit Working Group, The Bar Council

Wednesday 7 February

Commons

  • Westminster Hall debate – European Free Trade Association - Stephen Hammond
  • Treasury –  Oral Evidence Session: The work of the Financial Conduct Authority. Witnesses include:
    • Andrew Bailey, Chief Executive, Financial Conduct Authority
    • John Griffith-Jones, Chairman, Financial Conduct Authority

Thursday 8 February

Lords

  • Debate – Report from the European Union Committee 'Brexit: judicial oversight of the European Arrest Warrant' - Lord Jay of Ewelme

Friday 9 February

Nothing relevant.

Last Week in Parliament

Monday 29 January

House of Lords

Brexit Secretary gives evidence to Lords EU Committee

Secretary of State for Exiting the EU David Davis MP gave evidence to the Lords EU Select Committee. You can watch the session in full here. Below is a summary of the key issues discussed:

  • Phase one - Asked by Chair Lord Boswell of Aynho whether the phase one agreement was binding, Mr Davis explained that the joint report from phase one would be incorporated in to the final Withdrawal Agreement, at which point it would become binding. He added that “nothing is agreed until everything is agreed”, but that the Government’s intention was to implement everything agreed to date.
  • Ongoing negotiations - Asked for a timescale of when these agreements would be legally adopted, Mr Davis said that work had already begun on preparing a legal text of matters already agreed to. He added that the intention was to have the terms of the transition period agreed by March. Pressed by the Chair on the process of ratification, Mr Davis expressed the belief that the final future relationship agreement would be a “mixed agreement” and therefore require unanimous approval from the EU27. Davis also said that there would be a “variety of treaties” in addition to the proposed Free Trade Agreement (FTA) in matters such as justice and home affairs, defence and security, and data sharing, which would take some time.
  • Cabinet position -Labour peer Baroness Armstrong of Hill Top asked whether the Government had internally agreed upon a position on the transition. Mr Davis responded “absolutely”, adding that there was a shared desire to achieve stability whilst protecting the UK’s sovereignty.
  • Transition issues to be negotiated - Davis said that there would be a greater emphasis on continuous talks rather than rounds. Responding to a follow up question on whether the Government would pursue deals with the EU on matters outside of trade, Davis said “you might hear the odd speech in the next few weeks".
  • Customs union - Replying to Lord Jay’s question on how “a customs agreement” would differ to the Customs union, Mr Davis said that he wanted to see tariff free access to the European market continued, with mutually recognised standards and the use of an Authorised Economic Operator (AEO) and technology.
  • Regulatory alignment -Responding to the Chair’s question on who the arbiter in the event of a dispute on regulatory alignment would be, Davis explained that he wished to see a system implemented which was modelled on existing, international arbitration procedures. He elaborated on this by saying that there could be a panel of three persons: one from the UK, one from the EU, and one independent. In reply to a follow up question on whether this could be a sector-by-sector arbitration, Davis said that this was possible but the subject of negotiations.
  • Transition period -Asked by Crossbench peer the Earl of Kinnoull on whether EU law and rules would continue to apply to the UK during the transition period, Davis said that this would be the case generally, but that the Government wished to be able to negotiate and set its own international trade policy. Responding to Lord Boswell’s concern that other third countries may not apply their treaties with the EU to the UK during transition period, Mr Davis said that it was in everyone’s interest to continue to keep markets open and to maintain good diplomatic relations.
  • Arbitration -Liberal Democrat peer Baroness Falkner of Margravine interrogated the Government’s position on “powers to object” to new legislation passed by the EU during the transition period. In reply, Mr Davis said that this had not been discussed with the European Commission yet and he was expecting objections from the EU. He added that, whilst the UK wished to have a method of expressing concern about particularly disadvantageous legislation, most European law took a long time to be passed and thus should not pose a threat.
  • Negotiation issues -Asked what was likely to be discussed in talks on the transition period, Mr Davis answered the ability of the Government to set an independent trade policy, the applicability of new European legislation, British representation in European agencies and regulators, and the ability of British companies to apply for tenders on contentious European projects.
  • Court of Justice of the European Union (CJEU) -Crossbench peer Lord Cromwell asked whether it was possible that someone may refer the Withdrawal Agreement to the CJEU and how that could derail Brexit. In reply, Mr Davis said that this risk unavoidably existed but that “accurate compliance” with the Withdrawal Agreement was the best way to hedge against this.
  • Post-Brexit trade -Davis said that he expected there to be a degree of renegotiation with third countries when grandfathering EU FTAs and turning them in to bilateral trade agreements. Asked by the Chair whether trade agreements with the EU could be on a sector-by-sector basis and, if so, whether they would involve other, relevant Ministers in their negotiation, Mr Davis replied by saying that the deal would not be sector-by-sector “in the conventional sense”. He continued by explaining, however, that there could be sector-by-sector deals on mutual recognition of standards and regulation of procedures.
  • Dispute resolution -Replying to Lord Whitty’s question on the dispute resolution system which could be used for disagreements arising related to trade, or indeed other matters, Mr Davis suggested a panel for trade matters and newly constructed political committees for other issues. He continued that the Swiss system did not appear satisfactory. Replying to a follow up question on the use of the European Free Trade Association’s (EFTA) Court, Mr Davis said that it had been considered but that the Court was “too general”.
  • Financial services -Baroness Fawkner sought confirmation that the Government would not be publishing a position paper on financial services, to which Mr Davis said that this was undecided. Then replying to Baroness Fawkner’s point about the lack of notice being given for financial firms to adapt to new conditions, Mr Davis said that there was only so much notice which could be given due to the nature of negotiations. Asked whether a deal which did not include financial services would be acceptable by Baroness Neville-Rolfe, Mr Davis said that the EU would be “cherry picking” if it did not include financial services in a future trade agreement with the UK.

Lords debate human rights in Turkey

On Monday 29 there was an oral question on human rights in Turkey. The key points from the debate were:

  • Lord Balfe (Conservative) asked the Government what assessment they have made of the strength and effectiveness of their representations about human rights abuses to the government of Turkey once the UK is outside of the European Union. He noted his concern that leaving the EU would lose the UK ‘on the margins’ when it comes to making representations in Ankara.
  • Responding, the Minister of State for the Foreign Office, Lord Ahmad of Wimbledon noted that we have a close and constructive relationship with Turkey which enables us to raise our human rights concerns at the highest level, and that it is not expected to change as a result of the UK leaving the European Union. He noted that there are also other channels for these representations, including the Council of Europe, of which Turkey is a member. He said that leaving the EU will present the UK with a new way of defining relationships.
  • Lord Tebbit (Conservative) asked about EU representations to Turkey on human rights. The Minister responded by noting that it was British representations which ensured the release on bail of most of the human rights defenders before trial. He said that Turkey does listen to our protests.
  • Lord Cashman (Labour) called on the Minister to join him in renouncing the ban of any LGBT exhibitions and cultural events in Ankara. The Minister responded by noting that at the time of the ban, the UK made its position clear to the Turkish authorities and that it continues to do so, both in bilateral meetings and in multilateral settings.

Tuesday 30 January

House of Lords

EU (Withdrawal) Bill has Second Reading in the Lords

The European Union (Withdrawal) Bill was debated at Second Reading in the House of Lords this week.

Summary

  • Government: Baroness Evans said that the Government is willing to work with peers on strengthening some elements of the Bill, particularly where the Commons have already made amendments. The Government plans to work with peers on giving the Lords Secondary Legislation Scrutiny Committee the same ‘sifting’ powers as the new Commons sifting committee, and will be bringing forward amendments to the devolution clauses in the Bill. However, Baroness Evans did stand firm on some elements of the Bill, the use of Henry VIII powers and the Government’s position on the Charter of Fundamental Rights - two areas peers have said they will scrutinise closely and look to amend.
  • Opposition: Both Labour and the Lib Dems welcomed the Government’s commitment to bring forward proposals on a sifting committee in the Lords, and to bring forward amendments to the clauses on devolution. Both parties have said they intend to push for a greater role for Parliament in accepting the final deal and for Parliament to have a role in the event of a ‘no deal’, and for the Henry VIII powers to be scaled back. Labour have also said they will be focusing on facilitating a time-limited transitional period on current terms and enhancing protection for EU-derived rights and protections, whilst the Lib Dems intend to consider the status of transposed law and will continue to push for a second referendum.

Baroness Evans, Leader of the House of Lords made the following key points:

  • Delegated and Henry VIII powers: Baroness Evans commented on the use of delegated powers in the Bill, saying that it is not practical to correct all the EU law that has accrued over 46 years of membership via primary legislation, and that many of the changes are largely technical, which are exactly the type of changes for which secondary legislation exists. Evans also defended the use of Henry VIII powers, saying that it is not so unusual to take powers to amend primary legislation where that can be explained and justified.
  • Withdrawal Agreement and Implementation Bill: Baroness Evans said that the separate Withdrawal Agreement and Implementation Bill that will be used to implement the major elements of the withdrawal agreement between the UK and EU, including the implementation period, will come before the House in “due course”.
  • Devolution: Baroness Evans emphasised that “no power whatsoever” that is currently exercised by the devolved administrations will be removed by this Bill. The Government will shortly be publishing its initial framework analysis, which will show that in only a minority of policy areas where EU law intersects with devolved competence does the Government expect to require a UK-wide legislative framework. The Government intends to bring forward further amendments to Clause 11, the main devolution provision of the Bill, and are part way through the process of shaping those amendments with the Scottish and Welsh Governments.
  • Charter of Fundamental Rights: Baroness Evans said that the Government’s position on this remains clear: the Charter reaffirms rights found in EU law, which will be brought into UK law by the Bill. It is not, and never was, the source of those rights, and as such the absence of the Charter will not affect the substantive rights available in the UK. This is why the Government published its analysis of the Charter setting out how each substantive right within it will be reflected in UK law, and why it brought forward amendments preserving some EU-derived rights of challenge for a period after exit.
  • Sifting Committees: The Government’s intention is to build on the amendments passed in the Commons establishing a Commons Committee to sift statutory instruments. They intend to do this by incorporating the changes embodied by the new Commons Committee into the terms of reference of the Lords Secondary Legislation Scrutiny Committee (SLSC) to allow it to recommend, within 10 sitting days, that the House’s consideration of specific negative instruments related to the Bill should follow the affirmative procedure to bring it in line with the procedures established in the Commons. Baroness Evans noted that as well as altering its terms of the reference, the SLSC would temporarily also need additional resources, both in terms of expert advice and members. Evans will bring detailed proposals before the Procedure and Liaison Committees for consideration in March and the House will then be invited to agree the proposed approach, with Evans commenting that the Government is fully prepared to bring forward any necessary amendments to this Bill.

Baroness Smith, Shadow Leader of the House of Lords made the following key points:

  • Financial Services paper: Baroness Smith commented that the financial services sector is “crying out” for the Government to publish a future partnership paper to provide some certainty and allow future planning, and that ministerial responses to this have been “complacent at best”.
  • Sifting Committees and SIs: Baroness Smith welcomed the Government’s suggestion of a new committee for dealing with SIs, saying that Labour view this as essential. However she added that more needs to be done given the timescale and volume of legislation, and suggested that early drafts of SIs should be published for consultation, purely on accuracy, even before being brought to Parliament.
  • Transitional arrangements: The Bill must facilitate transitional arrangements on the same basic terms as now, including continuing participation in both the single market and customs union, and the legal basis and regulatory alignment that underpins them.
  • Henry VIII powers: Baroness Smith said the use of Henry VIII powers in the Bill is excessive and that the Government must scale back the scope of such delegated powers being granted to ministers.
  • Charter of Fundamental Rights: Labour would not have excluded this from the Bill and Lord Goldsmith will be leading this argument for them.
  • Role of Parliament: Labour welcome Dominic Grieve MP’s amendment to the Bill requiring an additional statute and therefore a parliamentary vote, however believe that the Bill must set out how Parliament will play a “truly meaningful” role in the process, including if there is a ‘no deal’ outcome.

Wednesday 31 January

House of Commons

Westminster Hall debate on NHS negligence

A Westminster Hall debate took place today regarding NHS negligence cases. A short summary of the debate is included below.

  • Moving the debate, Shadow Secretary of State for Local Government, Andrew Gwynne MP (Labour) noted that it is highly unusual for a member of the Shadow Cabinet to speak from the backbenches in Westminster Hall and thanked those who allowed him to do so.
  • He outlined how one of his constituents, ‘Mr Hawkins, has been let down by public authorities. The law and NHS rules have been abused to avoid giving him the justice that is rightfully his. His attempts to seek that justice, along with some semblance of honesty and humility, have already passed the decade mark’, and he called on the Minister to review his case.
  • He noted Mr Hawkins had to undergo surgery to repair a ruptured Achilles tendon in 2006. The surgery was postponed, and the surgeon changed without his consent, and a critical clinical error was made in the surgery, and subsequent treatment did not repair the initial error.
  • Mr Hawkins made official complaints, but the trust decided to immediately instruct solicitors. Gwynne outlined the long and complex litigation history of the case which has not yet resulted in justice for Mr Hawkins.
  • Gwynne called on the Minister to provide guidance on Mr Hawkins case.
  • Responding, The Minister of State for Health and Social Care, Stephen Barclay MP said that he was sorry to hear of Mr Hawkins’ experiences which have clearly caused him distress.
  • He noted that the NHS complaints process operates independently of Government, and noted the complex case that Gwynne had outlined, before confirming that he cannot comment on individual cases.
  • He did however refer to an independent medical report commissioned by Mr Hawkins solicitors which showed that the initial operation had been performed competently. 
  • The Minister noted the options open to Mr Hawkins, included judicial review if it has been less than three months since the conclusion of the complaints process. Gwynne intervened to note that Mr Hawkins was denied the ability to apply for a judicial review because the hospital had delayed the process.
  • The Minister then outlined the various steps the Government is taking to improve the complaints process in the NHS and the importance of promoting a culture of openness and transparency.
  • During the debate, Dr Dan Poulter MP (Conservative) intervened to call on the Government to consider no-fault compensation as a possible way of resolving issues like this in the future.

House of Lords

Lords debate clinical negligence

On Wednesday an oral question was held in the House of Lords on clinical negligence in the NHS. Key points include:

  • Lord Sharkey (Liberal Democrat) asked the Government what progress they have made in reducing the amount in the NHS budgets for clinical negligence claims, and regarding the calculation of costs.
  • The Minister, Lord O’Shaughnessy (Conservative) noted that the Government are committed to tackling clinical negligence costs, and to do so they have proposed fixing the amount that legal firms can recover from clinical negligence claims, and proposed a scheme for those families whose babies experience avoidable birth injuries to ensure that they have an alternative to lengthy court proceedings. He noted that the National Audit Office has urged the Government to act, and that they are considering the issue as part of a cross-Government strategy that will report in September.
  • Lord Faulks (Conservative) asked whether the Government are considering placing a cap or tariff on damages, as is done in other jurisdictions. The Minister, Lord O’Shaughnessy (Conservative) noted that they are considering this as part of the cross-Government strategy, but that the issue of reform to tort law is difficult and when stepping across the idea of compensation the Government has to be careful.
  • Baroness Brinton (Liberal Democrat) asked whether the NHS has undertaken additional efforts to understand what factors cause certain cases to be escalated, in particular the attitudes of lawyers in the NHS and trusts. The Minister, Lord O’Shaughnessy (Conservative) pointed to the five-year strategy that was published by NHS Resolution which looks at issues including how to prevent escalation.

EU (Withdrawal) Bill continues through Second Reading in the Lords

The Bill received its Second Reading without vote and now proceeds to ten days of Committee Stage in the Lords, beginning on 21 February.

On the second day of debate on the EU (Withdrawal) Bill, Exiting the European Union Minister Lord Callanan made the following key points:

  • Delegated powers -Callanan told peers that: “The Government do not propose delegated powers lightly […] We want to strike the right balance between scrutiny and speed, and to ensure that the Government can complete this exceptional task in time for exit while tailoring the powers as tightly to their purpose as possible.”
  • Parliamentary scrutiny - Callanan concluded by saying: “There will be a vote in both Houses on the final agreement reached with the EU. Then there will be a withdrawal agreement and implementation Bill that will give Parliament further time to debate and scrutinise the domestic legislation implementing the final agreement that we strike.”
  • Second referendum -Callanan added that any commitment to a second referendum would actively undermine the Government’s ongoing negotiating position.

Speaking for the Opposition, Shadow Brexit Spokesperson Baroness Hayter of Kentish Town made the following points:

  • Labour amendments - Baroness Hayter said that whilst the majority of peers were not questioning whether the UK should leave the EU, the Bill was not yet able to bring EU law into domestic legislation. She added that the Bill needed to be amended to give Parliament the say on “these complicated, vital issues—Parliament, where Ministers can be challenged… where the implications of the deal can be examined and debated, and where decision-makers are then accountable for their deeds.”
  • Labour demands - Urged ministers to listen to requests to amend the Bill to restore powers to Westminster, and provide legal certainty for the courts; to ensure that the Government would preserve both the Good Friday agreement and the devolution settlements; to safeguard the consumer, environmental and employment rights from any change without primary legislation and to perhaps pause the Bill while the Government made the necessary amendments.

Thursday 1 February

House of Commons

Law Society gives evidence to EU Committee on Brexit and non-financial services

  • Mickaël Laurans, Head of International at the Law Society, gave evidence to the House of Lords EU Internal Market Sub-Committee.  Mickaël last gave oral evidence to this inquiry in October 2016.  The other witnesses for last year’s session were: Alan Leaman, CEO of the Management Consultancies Association (MCA), Sally Jones of Deloitte LLP and the Professional and Business Services Council and Ian Harris of Z/Yen Group.
  • All panellists agreed that mutual market access was the most important goal for negotiations for trade in services post-Brexit. Sally noted the importance of having mutual recognition of both qualifications and regulators, and all four modes of supply included in any FTA (cross border, consumption abroad, commercial presence, and presence of natural persons).
  • Negotiations to-date - In response to a question on the progress on negotiations, the panel agreed that government officials were fully committed and dedicated to ensuring non-financial services stakeholders were kept informed and their voices were heard across Government. However, it was noted that these civil servants were operating with a lack of clear direction on policy. Mickaël noted that there were still a lot of questions to be answered in Phase II of negotiations.
  • Engagement - Mickaël welcomed the fact that the Law Society had very good engagement with both officials and ministers in key departments, saying ‘hardly a week goes by’ when the Law Society were not liaising with civil servants on Brexit. Ian Harris noted that it was not helpful that there have been so many changes in Ministers in recent years who have had a remit covering professional services and the City.
  • Impact on businesses and contingency plans - In response to a question from Baroness McGregor-Smith (Conservative) regarding industry revenues, Alan Leaman said businesses were concerned about talking about Brexit and were having to make contingency plans ‘quietly’ to avert losses in public confidence. All panellists said a future trade deal which limited the freedom of movement would affect businesses’ ability to attract and retain talent. Specifically, on legal services, Mickaël said mutual market access allows UK lawyers to service the cross-border needs of businesses and individuals both from satellite offices in the EU and through ‘fly-in, fly-out’ (FIFO) services from their London office (a daily business practice for many firms).
  • Transition - In response to a question from Baroness Donaghy (Labour), Mickaël said the Law Society would favour a transition period which lasted a minimum of 2 years, but conceded this was still challenging. He highlighted legal certainty as a ‘necessity’, which could only be underpinned by a continuation of the status quo during the transition.
  • EU-UK FTA deal -  Sally Jones suggested it was unlikely that the EU and the UK would be able to reach a trade deal in under four years, citing the complexity and unprecedented nature of a situation when two economic bodies were diverging but aiming to come to an agreement at the same time. Whilst a CETA-like deal would still enable international accountancy firms to trade, in response to a question from Lord Rees of Ludlow (Crossbench) Mickaël said, due to the CETA agreement not incorporating the EU Lawyers’ Directive, a deal which replicated CETA would be the equivalent of a ‘no-deal’ scenario for legal services.
  • No deal scenario - Baroness Noakes (Conservative) welcomed the Law Society’s detailed assessment on what a no-deal scenario would mean for legal services. Mickaël said it is unclear whether UK lawyers would need to requalify to practice EU Law and noted that over 1,000 solicitors have already requalified to do so. In addition, he highlighted that securing the future of the financial sector’s relationship with the EU was crucial (it currently makes up 33% of the top 50 law firms’ client base).

Friday 2 February

Nothing relevant.

Question or comments? Contact the Public Affairs team at parliamentary@lawsociety.org.uk or 020 7320 5858.

Tags: Westminster weekly update

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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