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Westminster update: Law Society President gives evidence on disclosure

10 May 2018

This week in the House of Lords, the Lord Chancellor will appear in front of the Constitution Committee and Dr Anna Bradshaw, Member of the Law Society's EU Committee, will give evidence to the EU Home Affairs Sub-Committee on the proposed UK-EU security treaty.


The Data Protection Bill will continue through its remaining stages this week with the Law Society calling for an exemption for immigration purposes to be removed from the Bill.

Last week The Law Society's President Joe Egan gave evidence to the Justice Select Committee inquiry on disclosure of evidence in criminal cases. Egan argued that the disclosures regime has not kept pace with modern technology, and highlighted concerns that Government cuts to the criminal justice system is affecting access to justice. The Law Society also submitted written evidence to the Committee and the criminal duty solicitor heat map was also highlighted during the session, the submitted evidence ca be read here.

The Law Society was mentioned in the House of Lords EU Justice Sub Committee report on enforcement and dispute resolution five times on the dispute resolution mechanism for the withdrawal agreement and transitional period.

The Sanctions and Anti-Money Laundering Bill was debated at Report Stage and Third Reading in the House of Common last week and passed with several amendments. The Bill has passed all its Commons stages and will now be returned to the House of Lords, a stage known as ping pong. During ping pong, the Bill travels back and forth between the two Houses, until both Houses agree on the text of the Bill. The public affairs team will keep monitoring the progress of the Bill and update colleagues on significant developments.

The Public Accounts Committee published its report following its recent inquiry on reducing modern slavery.In our written submission, the Law Society argued that the Government should improve monitoring mechanisms, and some of their conclusions and recommendations mirror our calls. The report can be found here.

This week in Parliament

Tuesday 8 May

House of Commons

  • Motion: Statutory Instrument on Criminal Legal Aid
  • Home Affairs - Oral Evidence Session, Immigration detention

House of Lords

  • Oral Questions: UK's ability to take advantage of the Digital Single Market and of country of origin principles for e-commerce once the UK leaves the EU European Union Committee – oral evidence session on post-Brexit UK-EU relations
  • Legislation: European Union (Withdrawal) Bill – Report (day 6) - Lord Callanan

Wednesday 9 May

House of Commons

  • Data Protection Bill (remaining stages)

House of Lords

  • Legislation: Automated and Electric Vehicles Bill - Committee stage (day 1) - Baroness Sugg
  • Constitution Committee - Oral Evidence Session, Lord Chancellor
  • EU Home Affairs Sub-Committee - Oral Evidence Session, Brexit: the proposed UK-EU security treaty

Joint

  • Human Rights - Oral Evidence Session, Human Rights: attitudes to enforcement

Thursday 10 May

House of Commons

  • Digital, Culture, Media and Sport (including Topical Questions)
  • Oral questions: Attorney General

House of Lords

  • Legislation: Civil Liability Bill [HL] Committee stage (day 1) - Lord Keen of Elie

Last week in Parliament

Monday 30 April

House of Commons

Urgent Windrush Question

In the House of Commons there was an urgent question on the Government's handling of the Windrush crisis. The full transcript is available here, and a summary is included below

Legal Aid

  • The Chair of the Home Affairs Select Committee, Yvette Cooper MP (Labour) commented on Home Office' decisions in the Windrush cases and asked if the Home Secretary would look again at reinstating independent appeals and legal aid to prevent future injustices.
  • Karen Buck MP (Labour) also called on the Home Office to ensure no one was denied the opportunity to receive legal advice and support in light of the Windrush situation. Responding, the Home Secretary, Sajid Javid MP said the Justice Secretary was carrying out a review of legal aid and also pointed to the ongoing consultation.
  • Stephen Doughty MP (Labour) argued that pressures on the Home Office and in particular cuts to legal aid, discretion and appeals contributed to the Windrush situation. Stephen Doughty MP also raised concern that wider groups of cases may be effected. The Home Secretary replied that there was a "compliant environment" in place, one that was not "hostile" but did distinguish between those in the UK legally and illegally.

Right to appeal

  • Caroline Lucas MP (Green) questioned the Home Office's effective handling of deportation cases and called for more rights for people appealing decisions from abroad. In response, the Home Secretary, said the UK's immigration policy is fair and humane and invited Ms Lucas to write to him on the issue to set out her concerns.

Home Office system concerns

  • Chris Elmore MP (Labour) asked if the Home Secretary was planning a "root-and-branch" review of the Home Office to assess its long term suitability. Sajid Javid MP in response, praised his team while acknowledging improvements can always be made. 
  • Andy Slaughter MP (Labour) raised the cases of constituents waiting multiple years to have their immigration status settled and criticised "extensive" delays in the Home Office. The Home Secretary argued he was determined to tackle the issues and to ensure that cases were dealt with as quickly as possible.

Trust in the justice system

  • Douglas Ross MP (Conservative) asked how Members of the House could ensure the Windrush generation had confidence in the justice system and believed it worked for them. The Home Secretary said he would continue to look at measures to build confidence, referencing measures currently in place such as the hotline and taskforce. The Home Secretary added that all information provided via the hotline or taskforce centres will be used for no other purpose than helping with details in the particular case.

The Home Secretary also answered questions on deportations, student visas, EU nationals living in the UK and a compensation scheme.

EU (Withdrawal) Bill Report Stage Day 4

The House of Lords held its fourth Report Stage debate on the EU (Withdrawal) Bill yesterday. The full debate can be read here.

Peers defeated the Government on three amendments in this session. These amendments, if enshrined into law, would:

  • attach extra conditions to the parliamentary approval needed to approve the final withdrawal agreement.
  • require ministers to seek parliamentary approval for the Government's phase II negotiating mandate.
  • require ministers to make appropriate arrangements with the aim of preserving the EU's Dublin Regulation, specifically allowing those seeking asylum, including unaccompanied minors, adults and children, to join a family member, sibling or relative in the UK.

The Bill will have its fifth, and penultimate Report Stage debate tomorrow.

A summary of the key points from the debate is below:

  • Meaningful vote on withdrawal agreement: Peers voted 335 to 244 in favour of amendment 49 to Clause 9, which would attach extra conditions to parliamentary approval for the final withdrawal agreement agreed between the UK and the EU. These conditions would include allowing Parliament to determine the Government's course of action if:
  • the final deal is rejected by House of Commons
  • the Act that is required to pass before exit is not passed into law
  • the deal with the EU is not finalised by 28th Feb 2019.
  • The amendment creates a new clause before Clause 9 of the Bill, and ensures that both Houses of Parliament would have a vote on the final Withdrawal Agreement and transition and that ministers should make preparations to schedule votes in the Westminster Parliament before the vote in the European Parliament. Importantly, the amendment also states that the Government must follow any direction in relation to the negotiations under Article 50 which has been approved by a resolution of the Commons, and subject to the consideration of a motion in the Lords. This allows Parliament to determine the next steps in the event of the Government's deal being rejected by Parliament, and would effectively prevent the Government from actively pursuing a 'no deal' Brexit.
  • Responding to the vote Exiting the EU Minister Lord Callanan said the amendment would "weaken the UK's hand in our negotiations with the EU by giving Parliament unprecedented powers to instruct the Government to do anything with regard to the negotiations - including trying to keep the UK in the EU indefinitely." It is expected that the Government will seek to remove this new clause from the Bill when it returns to the Commons.
  • Meaningful vote on Government's phase II mandate: Peers also voted 270 to 233 in favour of amendment 51 to Clause 9, which requires ministers to seek parliamentary approval for their phase 2 negotiating mandate.
  • Maintaining refugee family unity in Europe: Peers also voted 205 to 181 in favour of amendment 59 tabled by Labour peer Lord Dubs on family reunification for asylum seekers. The amendment requires ministers to make appropriate arrangements to preserve the parts of the Dublin Regulation which specifically allow those seeking asylum, including unaccompanied minors, adults and children, to join a family member, sibling or relative in the UK. It also requires ministers to report to Parliament every six months on the progress made in negotiations to secure the continuation of these reciprocal arrangements between the UK and EU member states.

Tuesday 1 May

House of Commons

Law Society president gives evidence to Justice Select Committee

Law Society president Joe Egan gave evidence to the Justice Select Committee as part of their inquiry on disclosures of evidence in criminal cases.

The Law Society also submitted written evidence to the Committee, which can be read here .

  • During the session Egan argued that the disclosures regime has not kept pace with modern technology, and highlighted concerns that Government cuts to the criminal justice system is affecting access to justice.
  • Egan noted that the Law Society is challenging the reforms to the Litigator's Graduated Fee Scheme through a judicial review.
  • The Law Society's criminal duty solicitor heat map was also highlighted during the session.

Egan appeared on a panel alongside:

  • Daniel Bonich, Vice Chair, Criminal Law Solicitors' Association
  • Angela Rafferty QC, Chair, Criminal Bar Association
  • Joanna Hardy, Barrister, Red Lion Chambers

The session can be viewed here, and a summary of the session is below:

  • Egan argued that the disclosures regime, as outlined in legislation from 1986 has not kept pace with the modern world and the 'explosion' of social media and online evidence. He said that the resources provided to enable disclosure had been subject to cuts over recent years.
  • Rafferty described the disclosures system as 'close to cracking' and said that there is undisclosed evidence which proves important to a case being missed. She raised concerns with scheduling of evidence.
  • Asked whether this is a new issue, Hardy described recent high-profile cases as 'firework cases', which attract the eye and are loud and bright, but said that they highlight a much wider issue.
  • Bonich raised concerns that disclosure officers are often junior and are seen as junior.
  • Hardy described the digital footprint as more akin to a digital 'crater', and highlighted all of the different pieces of data that criminal lawyers must go through which may be relevant, following the growth in digital media and evidence.
  • Bonich noted concerns with police culture where the police may not see why certain evidence could be relevant, and also regarding concerns where police feel they do not need to pursue all lines of inquiry. He said that 'every disclosure failure is a potential miscarriage of justice.' He said that the CPS need to go back to basics.
  • Egan spoke about his experience as a criminal solicitor and the low levels of remuneration for the work available, which has led many firms to stop practising criminal law. He spoke about how his daughter had wanted to pursue a career in criminal law, but due to concerns about remuneration, she knows practices in commercial property.
  • Bonich raised concerns that there are not appropriate sanctions for failures to disclose evidence.
  • Egan highlighted the Law Society's criminal duty solicitor heat map, which highlights an ageing profession and that in some parts of the country there is a looming crisis where there will not be enough criminal duty solicitors.
  • Rafferty raised concerns about the late disclosure of evidence, and Bonich recalled a recent case where the defence was served with 17,000 pages of material on the first day of the trial, which was material that the CPS had had for months and could have been shared earlier.
  • Egan spoke about the need to ensure that evidence is disclosed before the defence statement, and about the need for early engagement between defence and prosecution, highlighting a case he had worked on where an alibi could have been taken earlier which proved the innocence of his client.
  • Hardy spoke about the need to 'address technology with technology' and said that the technology exists to capture the data required quickly and easily, without the need to send mobile phones or computers away to labs for long periods. She said the system is years behind.
  • Responding to concerns about the practice of 'fishing', Bonich defended requests for more evidence. Hardy said that she doesn't request more information for the sake of it, and that she would not be paid to go through it unless it is used in court.
  • Rafferty and Hardy responded to concerns from the committee that the profession was not retaining enough criminal solicitors, and in particular not keeping enough women. Bonich spoke about how the duty solicitor scheme's requirement on hours particularly negatively affects women, and Egan shared the experience of someone from his firm who returned from maternity leave and was unable to meet the required hours.
  • Hardy spoke about the remuneration of criminal barristers through their pupillage and in the first years of their careers as a barrister, after significant investment and years of training, and highlighted concerns that peers were earning substantially more in other lines of work, which she said is driving down retention. Bonich argued that criminal law needs to be as diverse as possible and that the current system is preventing that.

Wednesday 2 May

House of Commons

Business, Energy and Industrial Strategy (BEIS) questions took place in the House of Commons. The full transcript is available here, and a summary is included below.

Employment law

  • Frank Field MP (Labour) asked what progress the Department had made on implementing the recommendations of the Taylor review into modern working practices. The Parliamentary Under Secretary of State for BEIS, Andrew Griffiths MP, said the Department was proceeding with work on 52 of the 53 review recommendations made by Matthew Taylor and consulting on how to best implement the measures. Andrew Griffiths added that the Government's aim was to ensure that employment law keeps pace with modern ways of working, while finding the correct balance between flexibility and worker protection.

Artificial Intelligence

  • Nigel Huddlestone MP (Conservative), asked what plans the Department had to maintain Britain's status as a "global leader" in artificial intelligence. In response, the BEIS Secretary, Greg Clark MP praised Britain's leading role and highlighted that the Alan Turing Institute attracted scholars from across the world. Greg Clark MP also noted that the sector deal included the provision of 8,000 specialist computer teachers to equip future generations with the necessary skills.

The BEIS Secretary also answered questions on the business relief schemes, the creative industry sector, and apprenticeships.

Reducing Modern Slavery report published

The Public Accounts Committee has published its report following its recent inquiry on reducing modern slavery. The report can be found here.

The Law Society submitted written evidence to the Select Committee, and some of their conclusions and recommendations mirror our calls.

The Committee's main findings and recommendations are summarised below:

  • The Committee observes that the Home Office has no means of monitoring progress or knowing if its Modern Slavery Strategy is working and achieving value for money. They recommend that in order to effectively track whether its Modern Slavery Strategy is working and prioritise funding and activities, the department should set targets, actions, a means of tracking resources, and clear roles and responsibilities within the programme and report back to us by December 2018. In our written submission, the Law Society argued that the Government should improve monitoring mechanisms.
  • They note that there are gaps in the department's understanding of modern slavery in the UK which could impact on prevention work. They recommend that the department should continue its work to gain a better understanding of the crime, the victims and the perpetrators, in order to target its prevention work effectively. They also argue that they must take account of the potential impact of other factors such as the exit from the EU.
  • The Committee observes that department's hands-off approach to businesses' compliance with its transparency in supply chains legislation is not working. They recommend that the department should take immediate action to ensure that its 'Transparency in Supply Chains' legislation is more effective. They argue that they need to drive up compliance, by actively administering and monitoring compliance and request that the Government write to them by April 2019 setting out what progress it has made and its latest estimate of compliance and demonstrating how this is improving transparency. The department should consider publishing itself a list of companies who have complied and not complied with the legislation, rather than relying on NGOs to police the system.
  • In our written submission, the Law Society argued that the Government should improve access to remedy by utilising existing legislation to hold companies accountable for abuses committed abroad and explore using the Bribery Act as a model to further extend extra-territorial criminal liability for human rights abuses.
  • The Committee argue that reform of the National Referral Mechanism (NRM) has taken too long and the current system does not allow government to understand and deal with modern slavery effectively. The Committee recommend that by January 2019 the department should ensure that the reformed NRM system enables it to collect and analyse data to understand the crime, the businesses and the sectors where prevalence is highest, and, where victims consent, to understand what happens to victims after they leave the NRM.
  • The Committee are very concerned that victims are waiting far too long to receive National Referral Mechanism decisions, causing distress and anxiety to vulnerable people, and increasing the costs of the victim care contract. They request that within six months, the department should write to the Committee setting out what actions the competent authorities are taking to reduce the time potential victims wait for a decision, and how the reformed NRM will reduce decision making times further, including what the target time for a conclusive decision will be.
  • The Committee observe that in the absence of clear care standards and an inspection regime, the department has no way of knowing that victims are receiving adequate care. They recommend that the department should, as a matter of urgency, put in place care standards for the current victim care contract. It should also contract for, or put in place itself, an inspection regime to ensure that all care reaches these standards.
  • The Committee report that the extreme variation between police forces' referral rates suggests that some forces are not treating modern slavery as seriously as others. They recommend that the department works with the National Crime Agency, the Crown Prosecution Service, the Independent Anti-Slavery Commissioner, Police and Crime Commissioners, local police forces and local authorities to urgently develop a set of clear, practical steps and good practice guidance to understand why there are regional variations in tackling the issue and how these can be reduced.

Thursday 3 May

House of Commons

Exiting the EU Oral Questions

On Thursday, Exiting the EU Oral Questions took place in the Commons.

The highlights from the session included:

  • Progress of negotiations: David Davis said DExEU officials were in Brussels discussing a number of issues, including the future of the security partnership, data and intellectual property rights, Northern Ireland, human rights, state aid and agriculture.
  • Non-UK EU citizens: Asked about the progress that has been made on agreeing new arrangements for the rights of non-UK EU citizens after Brexit, DExEU Minister Suella Braverman said the UK's reciprocal agreement with the EU safeguards the rights of EU citizens in the UK and the rights of UK nationals in the EU. She added that the agreement means that citizens who are resident before the end of the implementation period will be able to continue living their lives broadly as they do now. She went on to say the Government are now focusing on the successful domestic implementation of this agreement, and seeking further details on the steps that member states are taking to protect the status of UK nationals resident in the EU.
  • Withdrawal Agreement and Implementation Bill (WAIB): Davis confirmed that what is written into the withdrawal agreement will be binding in international law once the WAIB is passed. He was asked by Conservative backbencher John Whittingdale whether this would mean committing to a financial settlement that is binding in law, and whether he therefore agreed that the UK should seek to obtain as much detail as possible in the political declaration while they still had that leverage.
  • Customs Union: When asked by Desmond Swayne what level of confidence he estimated the probability of the UK leaving the customs union on 31 December 2020, Davis replied "will 100% do?" In a subsequent answer, fellow Minister Suella Braverman said that one of the Government's two options on customs "will be adopted in due course."
  • Shadow Brexit Minister Matthew Pennycook asked about the House of Commons Library's research on the Government's own Brexit analysis, which showed that leaving the customs union and ruling out a new comprehensive customs union would cost the economy billions. Suella Braverman said that the analysis did not represent Government policy and did not assess its preferred objectives (e.g. a free trade agreement).
  • Northern Ireland: Davis reiterated that there will be no physical infrastructure or related checks and controls at the border between Northern Ireland and the Republic, adding that the Government had put forward two potential customs models. Davis went on to say the issue would be best solved "through the deep and special partnership" between the UK ​and the EU, and that, while recognising the unique circumstances of Northern Ireland solutions to the border issue cannot be based on precedent (as the European Commission has itself acknowledged).

Sanctions & AML Bill Commons Report Stage

The Sanctions and Anti-Money Laundering Bill was debated at Report Stage and Third Reading in the House of Commons this week and passed with amendments.

The Bill has passed all its Commons stages and will now be returned to the House of Lords, a stage known as ping pong. During ping pong, the Bill travels back and forth between the two Houses, until both Houses agree on the text of the Bill.

  • Government New Clause 3 and compromise amendments 10 to 13 on 'Magnitsky' provisions: These were supported by the Labour frontbench and now stand part of the Bill. New Clause 3 requires periodic reports to be made about the use of the power to make sanctions regulations. A report must identify regulations relating to gross human rights violations. It must also ​specify any recommendations made by a Parliamentary Committee for use of that power in relation to such violations, and include the Government's response.
  • Government New Clause 4 on the independent review of counter-terrorism regulations: Recognising the concern raised by the Independent Reviewer of Terrorism Legislation and the Joint Committee on Human Rights that the repealing part 1 of the ​Terrorist Asset-Freezing etc. Act 2010 would remove the independent reviewer's oversight of domestic counter-terrorism asset freezes.
  • Government New Clause 5 on retained EU rights: Seeks to clarify the interaction of the powers in this Bill with the provisions of the European Union (Withdrawal) Bill. This Bill contains powers that enable the Government to amend retained EU law to impose or lift sanctions. The new clause simply makes it clear that restrictions in the European Union (Withdrawal) Bill do not prevent those powers from being exercised in the way that was intended.
  • New Clause 6 on public registers of beneficial ownership of companies registered in British Overseas Territories: Tabled by Conservative backbencher Andrew Mitchell MP and Labour backbencher Dame Margaret Hodge MP, the new clause would put a duty on the Government to work with the overseas territories to set up public registers of company beneficial ownership by 31 December 2020. If they do not do so, the new clause would require the Secretary of State to prepare a draft Order in Council, aiming to legislate directly.
  • Government New Clauses 15, 16 and 17 on the enforcement of goods on, and the procedure for dealing with goods seized from ships, including non-UK conduct.

There were four votes in the Commons on the Bill, all of which were won by the Government. These votes were on:

  • Labour's New Clause 13, which would ensure that when a company is formed in the UK, the relevant formation services must identify the beneficial owners of the company. It will also treat Companies House as a "company formation agent", ensuring that the data on the public register of beneficial ownership for companies is accurate.
  • New Clause 8 on beneficial ownership, which seeks to set down in legislation an obligation to implement, within 12 months of the Bill getting Royal Assent, a commitment to establishing a public register of company beneficial ownership of overseas companies that own or buy property in the UK.
  • The SNP's New Clause 19 which would require at least one of both the general and limited partners in a Scottish Limited Partnership to have an active UK bank account, and so require that they will have been subject to due diligence for anti-money laundering purposes.
  • A final division vote saw the Government defeat amendments to the powers to make sanctions regulations (Clause 1), extra-territorial application (Clause 19), royal prerogative powers in relation to ships (Clause 47) and Henry VII powers to enable the Minister to amend, repeal or revoke enactments for regulations (Clause 48).

House of Lords

European Union Committee report published

The House of Lords European Union Committee has published its report on dispute resolution and enforcement after Brexit.

The Law Society's written evidence to the Committee was mentioned in the report on three occasions.

  1. On the question of whether the Court of Justice of the EU (CJEU) should have jurisdiction over the Withdrawal Agreement, our point was referenced that while the Agreement, as an act of the EU, would be subject to the autonomy of the CJEU in its interpretation and compliance with EU law, the direct jurisdiction of the CJEU in the UK should end once the UK-EU's final agreement comes into force. The fact that the UK would no longer have judges at the Court, and that the UK legal profession would not have the right to plead in front of it were also referenced here.
  1. Secondly, on the arbitration of the Withdrawal Agreement, our written evidence was referenced in a footnote. Our points here were that the "CETA provides an arbitration process, in which parties mediate and, only if the case is not resolved within a specific time, is a reference for arbitration then made. CETA investment dispute settlement system applies only to investment disputes and does not apply to the entirety of the CETA Agreement."
  1. Finally on the analysis of the final text giving effect to the Brexit transition period, our argument on the short term nature of the period was highlighted: "In the expectation that the transitional period will be relatively short, it would be too burdensome and time-consuming to establish a separate dispute settlement mechanism solely for the period of transition."

Report summary

The wider report focusses on the need for a system to be put in place post-Brexit to resolve disputes and enforce rights as a replacement to the Court of Justice of the European Union (CJEU), with its jurisdiction ending after the UK leaves the EU. This covers three distinct areas: enforcing the Withdrawal Agreement; arrangements during the implementation period; and the dispute resolution system agreed as part of the future relationship between the UK and EU.

The Chair of the Committee, Baroness Kennedy of the Shaws has called on the Government to develop "some sort of judicial or quasi-judicial oversight of all UK-EU agreements" and expressed concern over the lack of time available to develop such mechanisms.

Some of the other key points in the report include:

  • Withdrawal Agreement: The report strongly recommends the avoidance of perceived biases in disputes where political resolutions are not possible in the Joint Committee. However, whilst recognising problems with allowing the CJEU to interpret the agreement due to its association to one party within the agreement itself, the report also asserts that only the CJEU can have a final say on the interpretation of EU law, thus it will determine whether the Withdrawal Agreement is compatible with EU treaties.
  • Implementation period: The report states that the UK will still be party to the continued jurisdiction of the CJEU during the transition, noting it would be too time-consuming to establish a separate mechanism for such a short period.  It supports this as long as this period is time-limited and there is a longstop period for any claims that arise during this time, so cases occurring during transition cannot be brought indefinitely.
  • Future relationship: The report argues that multiple dispute resolution procedures will need to be developed post-Brexit to deal with different situations, and that no "one-size-fits-all" approach is feasible. It recognises that where there is a close partnership involving EU agencies, the remit of the CJEU would have to be respected but this may be tempered by restricting its jurisdiction to limited areas. This is particularly relevant with regards to the regulation of aviation, medicines, chemicals and the European Arrest Warrant (EAW). In identifying key aspects to any future dispute resolutions, the report advocates institutions that are both accessible to businesses and citizens, and transparent.
  • Mutual recognition of judgements: "Grave concerns" were expressed in the report over Government's efforts on the mutual recognition of civil, family and commercial judgements. Little else is said on the matter of mutual recognition, with the report advising that these issues were covered in its previous report Brexit: justice for families, individuals and businesses.
  • Impact on the legal system: On the role of UK lawyers and judges on international law, the report believes Brexit will have a negative impact on the influence of the UK's common law system. The report also suggests the rights of individuals will be weakened post-Brexit by their inability to request a preliminary reference from the CJEU that had previously acted as a check on Government power.
  • EFTA Court: The EFTA Court is suggested as a possible resolution, however the report believes that without joining the European Economic Area, the court would not resolve all the issues that would arise post-Brexit.

EU (Withdrawal) Bill - Lords Report Stage (Day 5)

The House of Lords held its fifth Report Stage debate on the EU (Withdrawal) Bill. The full debate can be read here. As you will be aware, the Government has now faced numerous defeats in the House of Lords on the Withdrawal Bill.

Some of the key points in the debate include:

  • The Government suffered its tenth defeat on the Bill, when Peers voted in favour of amendment 88. The amendment, tabled by Lord Patten of Barnes (Conservative), would create a new Clause which states that the Government should work to ensure that there is no reduction in North-South cooperation in political, economic, security, societal and agricultural contexts and that there should be no land border between the UK and Ireland which involves physical infrastructure or customs checks. Peers voted in favour the amendment by 309 votes to 242.
  • The significance of the defeat is that whilst the Government is already committed to upholding the Good Friday Agreement and to having no land border between Northern Ireland and the Republic, by formalising this in the legislation, it further constrains the Government's position in the Brexit negotiations.
  • Moreover, the Bill was substantially amended after a range of Government amendments to the provisions on devolution were accepted by Peers to the Bill. Amendments include further defining the meaning of 'devolved competence' in the Bill, as well amendments constraining the UK Government's ability to pass regulations on EU retained law that would have been within the legislative competence of the devolved administrations. These were passed without opposition.
  • Government Amendments: A wide range of Government amendments were tabled to the Bill and accepted by Peers without opposition. These amendments include:
    • Amendments 89ZZD and 89CA, which state that no Minister from a Devolved Administration can act to amend retained EU law, if doing so is in breach of the respective acts of devolution.
    • Amendment 89D to Clause 11 of the Bill, which further clarifies the meaning of 'devolved competence'. Under provisions in the amendment, devolved competence is defined by the founding acts of the UK's devolved administrations and any subordinate legislation that devolved administrations have passed that fall within their legislative remit.
    • Amendment 89DA to Clause 11 of the Bill. The amendment provides further clarity to devolved powers in relation to retained EU Law. The amendment states that the UK Government cannot pass regulations on EU retained law that would have been within the legislative competence of the devolved administrations – unless the devolved administrations have been informed and provided consent for such regulations to be passed. The amendment also states that the Government's power to create regulations relating to devolution will expire two years after exit day at the latest.
    • Amendment 92AD to Schedule 3 of the Bill. The first part of this amendment states that the UK Government must report relevant changes to EU retained law to the devolved administrations.
  • Approval: Lord Wigley (Plaid Cymru) moved amendment 91 to Clause 11 of the Bill. The amendment states that the provisions in Clause 11 cannot take effect unless there has been a resolution of approval by the devolved administrations. Responding for the Government, Lord Keen of Elie stated that the Government was committed to consulting with the devolved administrations in the Brexit process, but could not allow individual devolved governments veto important UK-wide framework decisions. Amendment 91 was withdrawn.
  • Joint Ministerial Committees: Lord Wigley moved amendment 92A after Clause 11 of the Bill. The amendment would create a new Clause that would create a Joint Ministerial Committee for overseeing and determining key legislative issues relating to Brexit and the UK's devolution settlement. Responding for the Government, Lord Bourne of Aberystwyth stated that the Government are currently reviewing the existing intergovernmental structures with the devolved Administrations, as agreed by the Prime Minister and the devolved administrations on the 14 March. Amendment 92A was withdrawn.

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

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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