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Repeal Bill and Taylor Review published last week

17 July 2017

This week both houses will rise for summer recess. They will return on Tuesday 5 September until 14 September, when recess for party conferences season starts.


Last week the government published the European Union (Withdrawal) Bill (First Reading). Along with the Bill, it published a policy paper on the ongoing union judicial and administrative proceedings. MPs are likely to debate the bill at Second Reading stage when they return from summer recess on 5 September, probably on the week commencing 11 September. Read our press release.

On Tuesday the government published the Taylor Review on modern employment practices. The Prime Minister gave a speech at the launch. Although not yet committing to specific proposals in the review, she stated that the government would assess its recommendations over the summer.

The Law Society was fully engaged with the review and contributed with a set of recommendations – many of which were included in the final report. Our press release welcomed that the report contained our call to clarify employment rights in a single piece of legislation and that the government should take a much greater role in ensuring employment rights are upheld, mirroring our ask for independent enforcement of workplace rights.  However, the President highlighted that employment tribunal fees remain a barrier to access to justice, as these prevent workers from enforcing their rights

This week in Parliament

Monday 17 July

House of Lords

  • Report from the European Union Committee 'Brexit: UK–EU movement of people' - Baroness Prashar 

Tuesday 18 July

House of Lords

  • Oral question - 50th anniversary of the Sexual Offences Act 1967 - Lord Lexden
  • Debate on Orders and regulations - Damages (Personal Injury) Order 2017 - motion to regret - Lord Hodgson of Astley Abbotts 

Wednesday 19 July

House of Commons

  • General debate - Exiting the European Union and sanctions

House of Lords

  • Oral questions - Conclusions drawn from consultation on the introduction of a new industrial strategy - Lord Fox

Thursday 20 July

  • Nothing to report

Friday 21 July

  • Summer recess

Last Week in Parliament

Monday 10 July

Nothing to report.

Tuesday 11 July 

Government

Taylor Review published

Matthew Taylor, Chief Executive at the RSA, published his government-commissioned report into modern working practices. The Prime Minister gave a speech at the launch. Although not yet committing to specific proposals in the Taylor report she stated that the government would assess its recommendations over the summer.

Key recommendations in the report

The review considers the implications of new forms of work on worker rights and responsibilities, as well as on employer freedoms and obligations. It sets out 7 principles to address the challenges facing the UK labour market:

  • The national strategy for work should be explicitly directed toward the goal of good work for all.
  • Platform based working offers welcome opportunities for genuine two-way flexibility. Worker (or 'Dependent Contractor' as they suggest   renaming it) status  should be   maintained but we should be clearer about how to distinguish workers from those who are legitimately self-employed.
  • The law and the way it is promulgated and enforced should help firms make the right choices and individuals to know and exercise their rights.
  • The best way to achieve better work is not national regulation but responsible corporate governance, good management and strong employment relations within the organisation.
  • It is vital to individuals and the health of our economy that everyone feels they have realistically attainable ways to strengthen their future work prospects and that they can.
  • The shape and content of work and individual health and well-being are strongly related.
  • The National Living Wage is a powerful tool to raise the financial base line of low paid workers. It needs to be accompanied by sectoral strategies engaging employers, employees and stakeholders to ensure that people – particularly in low paid sectors – are not stuck at the living wage minimum or facing insecurity but can progress in their current and future work. 

Employment Tribunal fees - Although the report did not go so far as hoped to call for employment tribunal fees to be scrapped, it did call for employment status to be able to be determined without workers being charged punitive tribunal fees.

Key points from the PM's speech

  • Good employment was central to our society and that 'good work' can provide both a sense of self-worth and a pathway out of poverty.
  • The government is committed to supporting small and medium-sized businesses.
  • Laws must change to reflect different working practices in the economy- such as the increase in 'platform working'. However, a focus should also be to ensure that existing laws are enforced, such as preventing unpaid interns conducting the work of a full-time employee.
  • The government will continue to invest in learning and job re-training.
  • Technology has driven new changes in the labour market, including flexible working opportunities. Flexibility cannot be one-sided to benefit the employer and exploitation must be tackled. 

We contributed to the Taylor review, read our press release. The government has said it will respond to the recommendations in the review by end of 2017. 

House of Lords

David Davis MP gives evidence to Lords EU Committee

Secretary of State for Exiting the EU David Davis gave evidence to the Lords EU Committee. Davis was adamant that the UK will be leaving the jurisdiction of the European Court of Justice (ECJ), and was defensive against accusations that him and the Chancellor had contradicted each other, emphasising that they are working together closely particularly on transitional arrangements.

Baroness Kennedy (Chair of the EU Justice Sub-Committee) noted that lawyers in Britain are concerned about how enforceability of judgments will work without a supranational arbitrator, however Davis stuck to his line that effective judicial oversight is possible without this.

Key points

  • Sequencing of negotiations: The opening talks focused on sequencing of negotiations. The outcome of these first talks is to address three issues in working groups: citizens' rights; separation issues; and financial matters.
  • Timing of negotiations: Michel Barnier would like to be able to recommend moving to parallel negotiation in September/October time if sufficient progress has been made with the first phase. Davis said he does believe a comprehensive free trade agreement can be reached by March 2019, but what will be more difficult is getting the practical arrangements in place to go with this, such as the French Customs arrangements that will be necessary.
  • European Court of Justice: The UK view is that the appropriate jurisdiction is territorial, and there does not need to be a court with extraterritorial reach for the European Arrest Warrant to work. On UK courts' use of EU law after Brexit, Davis said this is entirely up to them and he expects that they will look at European case law but will not be bound by it. When pushed on the need for a supranational arbitrator, Davis argued that effective judicial oversight is possible without that, and pointed towards New Zealand and the US as examples of this.
  • Financial services businesses leaving the UK: When asked if he would consider extending the negotiations if a transitional arrangement hasn't been agreed by the end of this year to allow businesses to plan adequately, Davis said the ideal the outcome from financial services businesses at Chevening is that we get to the point of decision with enough time left for them to carry out regulatory and physical changes needed. He will try to do this, but as it is a negotiation it could become a point of leverage.
  • Transparency: The government will publish both freestanding papers and responses to EU position and working papers. When pushed on the government's transparency and the problem of parliamentary scrutiny on different areas, Davis said that at this stage in the divorce process, what is being volunteered by the UK is something it thinks needs to be resolved quickly. When it gets to second stage of negotiations, the situation will flip as the UK will be the one asking for things, so the government will publish its proposals on these areas in the Autumn.
  • Devolution: Davis emphasised that the UK government has "bent over backwards" to pay attention to devolved interests and will continue to consult then. On whether the Repeal Bill will be subject to a legislative consent motion, Davis refused to answer what would happen if the devolved legislatures refuse consent, saying that the government won't get to this point until early next year.

Read the transcript.

Wednesday 12 July

Nothing to report.

Thursday 13 July

Government

Repeal Bill published

The European Union (Withdrawal) Bill was published on Thursday and had its first reading. This is the bill formerly known as the Great Repeal Bill.

MPs are likely to debate the bill (at second reading stage) when they return from summer recess. The House of Commons returns on 5 September. The Law Society will brief MPs ahead of second reading.

The bill has four main purposes and is split into six sections. The purposes are to:

  • Repeal the European Communities Act 1972
  • Ensure the retention of existing EU law
  • Ensure powers are made available in connection with the withdrawal (this will include statutory instruments (Sis), and Henry VIII powers)
  • Introduce measures dealing with devolution.

Key points of the bill include:

  • The Charter of Fundamental Rights will not be part of domestic law on or after exit day.
  • A UK court is not bound by any principles laid down, or any decisions made, on or after exit day; and in deciding whether to depart from any retained EU case law, the Supreme Court or the High Court of Justice must apply the same test as it would apply in deciding whether to depart from its own case law.
  • The Bill sets out that the general procedure for introducing SIs will be the affirmative procedure which means that it requires the formal approval of both Houses.  The Bill sets out specifically what provisions will go under this process. The Bill also sets out a procedure for urgent matters which will come into force without a draft being laid and approved.
  • There appears to be some limitations on the length of time these will available to ministers and on how they can be used. For example, SIs cannot be used to impose taxation, create criminal offences or "amend, repeal or revoke the Human Rights Act".
  • Furthermore, no regulations may be made after the end of the period of two years beginning with exit day.

Read our press release.

Department for Exiting the EU publishes paper on ongoing judicial and administrative proceedings  

Along with the Bill, government published a policy paper on the ongoing union judicial and administrative proceedings. The key points:

Legal cases pending before the Court of Justice of the European Union (CJEU)

  • Leaving the EU will end the jurisdiction of the CJEU in the UK. On the day of withdrawal, there will be a number of cases before the CJEU which involve the UK as a party, or which have originated as preliminary references from the domestic courts of the UK.
  • Although the consequences of the UK's exit will render some cases moot, for the rest, a means will be needed of ensuring a smooth and orderly end to the jurisdiction of the CJEU in the UK.

The UK's approach

  • The UK has made clear that leaving the EU will end the jurisdiction of the CJEU in the UK, a position consistent with international legal precedent, placing the UK in the same position as all other third countries, including those with which the EU has deep and close relationships.
  • At the same time, the UK is committed to minimising uncertainty and disruption for individuals or businesses, including that arising from changes in the treatment of cases pending at the time of withdrawal.
  • Discussion of the treatment of pending cases should take into account the interests of those who have taken cases. The UK recognises that beyond a certain point in proceedings, where considerable time and resources have been invested in CJEU proceedings, it may well be right that such cases continue to a CJEU decision.
  • Detailed technical issues would need to be resolved, and the UK will seek to agree with the EU:

o   The types of case that would be in scope of any agreement in this area

o   The point at which a case can be considered to be pending

o   The status of any decision reached by the CJEU

o   The status of any interventions which the UK has notified; and the role of UK-appointed judges and Advocate General in the Court and the role of UK lawyers appearing before the Court.

Discussions should be guided by the following key principles:

  • The process for ending CJEU jurisdiction in the UK should be orderly and fair to those who find their cases before the CJEU at the point of withdrawal.
  • Certainty should be provided as to the cases that are in scope - it ought to be possible to identify on the day of withdrawal precisely which cases are pending and so have certainty about the point at which pending cases have been finally resolved
  • The UK is leaving the EU and the jurisdiction of the CJEU in the UK will end - in particular, the purpose of continuing cases which are aimed at incentivising compliance with EU law when EU law will no longer apply to the UK must be considered
  • Where cases involving UK citizens and businesses continue to be in front of the ECJ, the UK's role before the Court should be retained - the position of the UK's judges, Advocate General and UK registered lawyers should be addressed.
  • The approach in respect of pending cases should be without prejudice to any specific discussions, agreements or arrangements in respect of other areas of negotiations, including on citizens' rights and the future partnership between the UK and the EU.

The UK's view on cases to go to CJEU post March 2019

  • The paper notes that the UK does not consider that the CJEU should remain competent to rule on cases on which it has not been seized before the day of withdrawal, even where the facts arose before withdrawal.
  • For those cases that no longer in scope of the CJEU but occurred before withdrawal, the UK will provide certainty domestically by incorporating the EU acquis and CJEU case law into domestic law on exit. This historic case law will be given the same binding, or precedent, status in UK courts as decisions of the UK Supreme Court, which can, where appropriate, depart from its previous judgments.
  • The paper also acknowledges that administrative procedures before Union institutions, offices and agencies will need to be discussed and agreed upon. The paper notes specific administrative procedures including proceedings on competition, antitrust and undertakings and mergers.

Friday 14 July

Houses not sitting

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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