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Reviewing the implications of Brexit

17 October 2016

Alexandra Cardenas takes a look at the latest Brexit-related events and the implications for the UK justice system.


Last week parliament sat for the first time fully since 16 September and began with an announcement by the Labour Party leader Jeremy Corbyn, with continued appointments to his shadow justice team.

Much of the rest of the week has been dominated by Brexit, including an opposition day debate in the House of Commons, and the announcement by the Justice Select Committee that there will be an inquiry into the implications of Brexit on the justice system. The Law Society will be submitting evidence to this inquiry.

Monday 10 October

Parliament - House of Commons

Response to statement - Shadow Brexit secretary on leaving the EU

Responding to a statement on the next steps in leaving the EU, shadow Brexit secretary Sir Keir Starmer said that Brexit secretary David Davis’ statements to the House had been disappointing and contained 'no substance'.

During the EU referendum campaign, he said that 'much had been made' of parliamentary sovereignty. Sir Keir suggested that the government wanted to negotiate and withdraw from the EU without any parliamentary approval.

Therefore, he explained that Labour called for a parliamentary vote on the basic terms before article 50 was invoked, which he said was about 'getting the best deal for Britain'. The government had no plan for Brexit in its 2015 election manifesto, he highlighted, and noted that it had stated the Conservatives would safeguard British interests in the single market.

Turning to the Great Repeal Bill, Sir Keir said the bill would not allow parliamentary scrutiny of article 50 negotiations. The vote would be after, not before, article 50 was invoked.

Labour respected the outcome of the referendum, he continued, but by 'flirting with hard Brexit' the prime minister was not putting the national interests first. He asked for assurances that the government would seek continued access to the single market on the 'best possible terms'.

The UK wanted the 'open most barrier free access to the European market', Mr Davis argued. The 'best terms, that’s it', he concluded.

Labour press release – Labour party shadow cabinet reshuffle

At the end of last week and over the weekend, Labour leader Jeremy Corbyn announced his shadow cabinet and shadow junior ministerial positions. Please see the key appointments below:

  • Christina Rees - shadow minister for justice
  • Jenny Chapman - shadow minister for Brexit
  • Matthew Pennycook - shadow minister for Brexit
  • Paul Blomfield - shadow minister for Brexit
  • Nick Thomas- Symonds - shadow solicitor general
  • Carolyn Harris - shadow minister for home affairs
  • Yasmin Qureshi - shadow minister for justice

The public affairs team will be engaging with these relevant shadow ministers in the coming weeks.

Tuesday 11 October

Parliament

Labour press release – Shadow chancellor calls for review on legal aid

The shadow lord chancellor Richard Burgon MP responded to the publication of Amnesty International’s report Cuts that Hurt: The impact of legal aid cuts in England on access to justice, saying:

'It is high time the justice secretary initiated the promised review into civil legal aid cuts. Amnesty's report makes clear that this is yet another area of our justice system in which a crisis is unfolding.'

Mr Burgon continued by stating that the government is denying access to justice to too many people across England and Wales, and this is affecting the young and vulnerable disproportionally. He urges the government to announce when the review will start, timescales and when findings will be published.

Wednesday 12 October

Parliament - House of Commons

Ministry of justice written answer - Legal aid

Minister of Justice Sir Oliver Heald QC MP answered a number of questions tabled by Labour shadow whip Thangam Debbonaire regarding legal aid. This included:

  • what information the Ministry of Justice currently holds on how many
      (i) petitioners and
      (ii) respondents who were ineligible for legal aid were unable to afford legal representation, this case in applications to the family court.
     
  • how many petitioners and respondents alleged that they were victims of domestic violence from the other party; and whether the department has undertaken monitoring of the effect of a lack of legal representation on those victims and their children.

The minister stated that the representation status of unsuccessful applicants for legal aid is not centrally recorded.

He continued by saying that the government is clear that victims of domestic violence have access to the help, including access to legal aid.

He assured Ms Debbonaire that since the reforms were introduced thousands of people have applied for legal aid where domestic violence is involved and the majority have been granted it. He also said that since the LASPO Act was introduced, the Ministry of Justice has twice made changes so it is easier for people to get the evidence they need to claim legal aid.

Justice Select Committee - Implications of Brexit

The Justice Committee has launched an inquiry into the implications of Brexit for the justice system. The committee is welcoming written submissions from experts and other affected stakeholders to present the Government with recommendations concerning the questions which it will need to address in the eventual Brexit negotiation process.

The inquiry will be looking into the effects on criminal justice, civil justice and the legal services sector. The Law Society will be preparing written evidence to this inquiry.

Opposition Day Debate – Parliamentary Scrutiny of Brexit

MPs debated, amended and agreed the following motion originally moved by the opposition:

'That this House recognises that leaving the EU is the defining issue facing the UK; believes that there should be a full and transparent debate on the government’s plan for leaving the EU; and calls on the prime minister to ensure that this House is able properly to scrutinise that plan for leaving the EU before article 50 is invoked; and believes that the process should be undertaken in such a way that respects the decision of the people of the UK when they voted to leave the EU on 23 June and does not undermine the negotiating position of the government as negotiations are entered into which will take place after Article 50 has been triggered.'

Responding for the government, Brexit secretary David Davis MP moved an amendment adding that the process 'should be undertaken in such a way that respects the decision of the people of the UK when they voted to leave the EU on 23 June and does not undermine the negotiating position of the government as negotiations are entered into which will take place after Article 50 has been triggered'.

Key points made by the shadow Brexit secretary:

  • Sir Keir opened by saying Brexit will have a profound impact on the UK, and the nature of Britain’s exit was not on the ballot paper at the referendum.
  • He accused the government of hiding behind prerogative powers and not allowing the House to debate the opening terms of negotiation. He said government has no mandate for the terms of the negotiation.
  • He said the government must agree to publish some plans, and highlighted that this was done during accession into the European Economic Community.
  • On prerogative powers, Starmer said that these powers had evolved over time and were flexible. The powers government has in practice, are not necessarily the convention in reality. They can put it to a vote if they choose.
  • There was discussion about the technical rules around treaties and the 'Ponsonby Rule' that treaties have to be laid before the House. Dominic Grieve QC MP highlighted the convention that major treaty changes have to be put to the Commons for an affirmative vote.
  • On consultation, Sir Keir pointed out that it’s hard to get agreement when there is no idea about what is being agreed to.
  • On the eventual Brexit deal with the EU, he said the Conservative manifesto had commitments to protecting business, and quoted Davis saying he was seeking the 'most open, barrier-free market that we can, that will be as good as a single market'. He said there is nothing stopping the government putting the broad terms in front of the House.
  • Sir Keir borrowed a line from the government, telling them to 'put the national interest first' and get the best possible deal.
  • On EU citizens, he highlighted differences in statements between international trade secretary Liam Fox MP and Brexit secretary David Davis MP, saying it is unfair to use them as ‘cards’ in a negotiation.

Key points by the Brexit secretary:

  • Speaking to move the government’s amendment, as stated earlier, the minister said he could broadly welcome the Labour motion, but with caveats. He wants parliament to have proper scrutiny, but not to veto the vote of the British people.
  • He agreed that scrutiny could only begin after article 50 is triggered.
  • He said his objectives are to:
    • 1. build a national consensus
      2. put the national interest first, including listening to devolved administrations
      3. minimise uncertainty, which is the point of the Great Repeal Bill
      4. re-establish the sovereignty and supremacy of parliament.
  • On negotiation goals, he said the overarching objectives are to:
    • 1. bring back control to parliament
      2. bring back control of immigration to the UK
      3. maintain the strong security cooperation we have with the EU
      4. establish the freest possible market in goods and services with Europe and the rest of the world.
  • The minister said ‘hard Brexit’ and ‘soft Brexit’ mean very little, and that there are a range of possible outcomes, from free trade area, to customs union, to a single market ‘arrangement’. He was confident there would be a ‘British model’. He added: 'if you tell the person you are negotiating with what you want, the price goes up'.
  • On scrutiny, the minister said he was arranging for there to be a series of opportunities to debate Brexit in the House. The Great Repeal Bill would be put before the House allowing for scrutiny of these laws.
  • He commented that he will bring clarity as we go along, but that the negotiation hasn’t begun yet. There would be nothing said that might compromise the national interest, however the UK parliament would be 'at least as informed' as the EU parliament.
  • On immigration, the minister wants to get the same guarantees for EU nationals that we have now, but that this was dependent on what other states agree. He said immigration would be 'under our control'.
  • On membership of the single market and free movement, the minister said the prime minister had made the position ‘clear’.
  • On the timing of triggering article 50, the minister said the prime minister believes the public wants the process to get started.

Thursday 13 October

Parliament - Committee

Joint Committee on Human Rights - Derogation from European Convention on Human Rights

The Joint Committee on Human Rights has written to the secretary of state for defence, Michael Fallon, asking for a full explanation of the government’s proposal to derogate from the European Convention on Human Rights (ECHR) to protect the armed forces from legal claims arising from future overseas operations.

Committee chair Harriet Harman MP said:

'Derogating from the UK's international human rights obligations is a very serious matter which calls for the most careful scrutiny by parliament. The last time the UK derogated from the ECHR, in the wake of 9/11, the derogation received little parliamentary scrutiny and was later found to be incompatible with the ECHR by both the UK’s highest court and the ECHR. The government’s case for derogating rests on a number of assertions which need to be rigorously tested. We have written to the government asking it a number of detailed questions which will enable us to scrutinise the government’s claims about the necessity for taking such an exceptional step, and to help parliament reach its own view about whether a derogation is justified.'

The letter can be read here  

EU External Affairs Sub-Committee and EU Internal Market Sub-Committee - Future trade between the UK and the EU

On Thursday afternoon, ministers from the Department for Exiting the EU and the Department for International Trade gave evidence on the subject of future trade between the UK and the EU.

Evidence was given by Lord Bridges of Headley MBE (parliamentary under secretary of state, Department for Exiting the European Union) and Lord Price CVO (minister of state for trade policy, Department for International Trade).

The first section of the session covered the options and implications of trade post-Brexit, and the second section focused on the mechanics of the departments and issues of resource and staffing.

Key points:

  • Lord Price told the committee that the government understands the impact uncertainty has on investment decisions, citing the car manufacturing industry specifically. Lord Bridges added that the financial services sector has made very vocal representations on the topic of uncertainty.
  • Ministers from various government departments feed information into the Business Intelligence Unit (which sits in the Department for Business, Energy and Industrial Strategy); officials from the Department for International Trade work with the Business Intelligence Unit to assess the information that flows in.
  • Lord Bridges reiterated that the government is looking to secure a bespoke approach with Europe that returns control of borders and achieves the 'freest possible relationship' with regards to trade.
  • The government considers it a priority to strike its own schedules with the WTO. Since the referendum, Lord Price has talked to 19 trade ministers inside and outside the EU, and all have been very supportive of the UK having its own WTO schedules, and he is therefore not anticipating any major issues with the UK on this.
  • Working groups have been formed with a number of countries, to start working through how free trade agreements can be struck moving forward. Both stressed that they understood the importance business organisations have placed on the need for transitional arrangements.
  • Lord Bridges said that transitional arrangements could last 'some time' although he did not place a specific time period.
  • He went on to say that there is an Economic Finance Dialogue with China scheduled for the near future, with a view to build and improve the business relationship between the two countries.
  • Lord Bridges said that officials at DExEU have provided a list of 51 market access sectors, so that the department can analyse the impact on business of the various post-Brexit options.

Friday 14 October

Nothing relevant.

Tags: legal aid | human rights | Brexit | Labour | Jeremy Corbyn

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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