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Second Reading and vote of EU (Withdrawal) Bill

12 September 2017

Parliament is back from recess for seven sitting days. This week the Second Reading of the European Union (Withdrawal) Bill will resume. The Labour party has put forward a reasoned amendment expressing concerns about the Bill. These type of amendments do not seek to change the content of the Bill but are motions opposing the Bill, giving reasons why it should not become law. However, even if the amendment passes, the Bill can continue its passage through the House and reach Committee Stage where it can be amended. 


Read the The Law Society's parliamentary briefing. We called for clarity on the use of delegated powers, the need to place greater emphasis on the devolved administrations, and ensure transitional arrangements are practical as part of the EU (Withdrawal) Bill.

On access to justice matters, last week the Lord Chancellor announced proposals for calculating the discount rate applied to personal injury settlements, which will be set in the region of 0% to 1% and reviewed at least every three years. Read our press release. 

The Lord Chief Justice's 2017 report was published and presented to Parliament. The report acknowledged the work of the judiciary, the Government and the legal profession through the Brexit Law Committee to promote UK legal services. On regulation the report highlighted the importance of promoting the highest standards of training and practice and that practitioners' overriding duty to the court must be preserved to maintain the world-class reputation of our jurisdiction. It added that any changes to the regulation of the legal profession should be carefully considered to avoid undermining our standards and that the judiciary will take a more structured approach to engagement with the representative and regulatory bodies to make sure the constitutional position of the legal profession is properly understood and weighted accordingly. Read the report in full (pdf).

The political party conference season starts on Saturday 16 September with the Liberal Democrat conference in Bournemouth. The public affairs team will be attending three party conferences and running a comprehensive programme of activities (pdf).

This week in Parliament

Monday 11 September

House of Commons

  • Second Reading and vote, EU (Withdrawal) Bill

House of Lords

  • Financial Guidance and Claims Bill - Committee stage (day 3) - Committee of the Whole House

Tuesday 12 September

House of Commons

  • No business of interest

House of Lords

  • EU Justice Sub-Committee - Oral Evidence Session - Brexit: consumer protection rights

Wednesday 13 September

House of Commons

  • Adjournment debate on employment tribunals

House of Lords

  • Financial Guidance and Claims Bill - Committee stage (day 4) - Committee of the Whole House
  • Oral questions: Comprehensive timetable for Brexit negotiations with the EU

Thursday 14 September

House of Commons

  • Oral questions to the Attorney General

House of Lords

  • EU Internal Market Sub-Committee - Oral Evidence Session - Brexit: competition 

Friday 15 September

  • Both Houses will be on recess. They will return on 9 October.

Last Week in Parliament

Monday 4 September

Nothing to report.

Tuesday 5 September

Government

Update on Brexit negotiations

The Rt Hon David Davis MP, Secretary of State for Exiting the EU, delivered a statement to the House of Commons on the progress of the Brexit negotiations. The main points were:

  • Progress has been made on a number of issues. There is agreement already on social security, residents' rights, the need to streamline residence applications, protecting the rights of frontier workers and those wishing to set up businesses abroad, and maintaining access to the European Health Insurance Card (EHIC) scheme. The latter will also apply to pensioners living abroad. There has also been work done on the mutual recognition of professional qualifications. All of these arrangements are reciprocal.
  • The two sides are close to an agreement on post-exit privileges and immunities, a mutual approach on the sharing of information, and on nuclear energy.
  • On the European Court of Justice (ECJ), there has been progress made on what the cut-off point should be for cases pending, and what role the UK can play in these.
  • Goods on the market have also been discussed, with both sides agreeing the need for legal certainty at the point of departure.
  • The UK and EU have very different understandings of the UK's financial obligations post-Brexit, and the UK will continue to closely scrutinise the EU's proposed financial settlement.

Read the full update.

House of Commons

Justice Oral Questions

Justice Oral Questions took place in the House of Commons. The issues covered were legal aid, legal services, employment tribunal fees, court reforms, and prison reform. The main points:

Legal services sector

  • Luke Hall MP (Con) asked what the Ministry of Justice was doing tochampion the legal services sector.
  • Justice Minister Dominic Raab MP said that the sector contributed £3.4bn to the UK's net trade exports. He added that the Government was working with the sector to promote its priorities in the Brexit negotiations.

Legal aid

  • Shadow Justice Minister Gloria De Piero MP asked when the LASPO Review would be published.
  • The Lord Chancellor said that he hoped to give details in the near future, mentioning the general election as a delaying factor.
  • Thelma Walker MP (Lab) asked what steps the Government was taking to ensure that people in England and Wales have adequate access to legal aid providers.
  • Responding, the Lord Chancellor said that the legal aid market was regularly assessed and that the Legal Aid Agency was taking action where there were regional shortfalls.
  • Ms Walker noted that the Childrens' Society report had exposed the lack of availability of legal advice for children and migrants, asking for the laws on this to be reviewed.
  • The Lord Chancellor said that his department would consider it.
  • Philip Hollobone MP (Con) pointed out that lot of people currently entitled to legal aid were not receiving it, and called for steps to ensure access to justice.
  • The Lord Chancellor said that he would encourage those who believed they were entitled to legal aid to approach the relevant authorities. He argued that a large amount of money was still spent on legal aid. He also added that there was a need to simplify access to legal aid and that digital technology should provide support to people without necessarily the need to access legal representation.

Employment tribunals fees

  • Ronnie Cowan MP (SNP) asked when the Government intended to announce how rebate arrangements will work for people who had paid employment tribunal fees.
  • Justice Minister Dominic Raab MP said that the Government had stopped charging fees following the Supreme Court judgment and that it was looking into procedures to return fees to those who had paid in the past. He also said that those unable to bring a case when the fees were in place would be given the opportunity to pursue the claim outside the usual time limit. 
  • Mr Cowan said that those entitled to reclaim money should be made aware of the process and should receive the money in a timely manner.
  • The Minister assured that practical arrangements would be put in place to reimburse people. He also admitted that the Government "got the balance wrong" and that the judgment was a valuable lesson for the future.
  • SNP Justice and Home Affairs Spokesperson Joanna Cherry MP said that the Supreme Court had criticised the secondary legislation introducing the tribunal fees, and argued that such changes should never have been put through using secondary legislation.

Court reforms

  • Edward Argar MP (Con) and Justin Tomlinson MP (Con) asked what steps the Government was taking to improve the court experience for victims and witnesses.
  • Justice Minister Dr Phillip Lee MP said that the Government was testing new provisions and looking how the process could continue to be improved. He also added that it was investing over £1bn to create a simpler and better courts and tribunals system.
  • Shadow Justice Minister Yasmin Qureshi MP pointed out that no research had been carried out on the provisions introduced by the Prisons and Courts Bill, and asked whether the Government had plans to test them before introducing the Courts Bill. 
  • The Minister said that testing on this issue was underway.

Read the questions in full.

Wednesday 6 September

Nothing to report.

Thursday 7 September

House of Commons

European Union (Withdrawal) Bill – Second Reading

Second Reading of the European Union (Withdrawal) Bill began in the Commons. The debate will take place over two days, resuming and concluding on Monday. The Bill is designed to remove the European Communities Act from the UK statute book to end supremacy and flow of EU law; bring EU laws into UK legislation, and give ministers the powers to make necessary changes to legislation by statutory instrument to ensure it works on exit day.

The Law Society's policy position was mentioned by Liberal Democrat MP Tom Brake who said that Parliament must be given comprehensive sovereignty and scrutiny over the process: "This opinion is widely supported [...] by organisations such as the Law Society, which states that the Bill 'must respect parliament's role in making and approving changes to UK law'".

Key points

Secretary of State for Exiting the EU, David DavisMP:

  • Scrutiny - the Bill does "only what is necessary for a smooth exit", and that it will be scrutinised "line by line, clause by clause". He added that ministerial powers will expire after two years of the exit day.
  • Policy changes -the only policy changes the Bill might bring forward would be on the withdrawal agreement when it is reached.
  • Devolution - Brexit will increase the decision making powers of the devolved institutions. However, on matters such as food standards, the EU provisions will be recreated into UK law that the devolved legislatures will not be able to amend. Such arrangements will be transitional and reviewed again once a wider discussion about common frameworks has been considered.
  • Labour's reasoned amendment - a vote against the Bill is a vote for a chaotic exit. Labour's insinuation that the Bill provides unchecked, unilateral powers to ministers is misleading and incorrect as the Bill only seeks to retain EU legislation. It will be for Parliament to change wider laws and policies after the UK has left the EU.

Shadow Secretary of State for Exiting the EU, Sir Keir Starmer QC MP:

  • Labour position – the Labour party does not object to the principle of the Bill itself but it is questionable that the Bill is "a mere technical exercise". The implementation will require a vast amount of policy changes via secondary legislation, and the "extremely wide Henry VIII powers" it will grant to ministers enable the future modification of Acts of Parliament, including the primary act itself, provide for little scrutiny or safeguards.
  • Safeguards -the safeguards provided are very narrow and allow Ministers to have huge powers to amend primary law, and far too many of these provisions will be undertaken via the negative procedure, something that rarely sees laws annulled. A minister's ability to amend primary laws makes a mockery of any safeguards within the Bill as the delegated legislation will allow ministers to amend the Act.
  • Rights - individual rights, such as the Working Time Directive, have enhanced protections because of the 1972 European Communities Act but that while they will survive in delegated form, they will not maintain their 'enhanced' status. He added that this matters because the protections should not be allowed to be amended by delegated powers and should be subject to the introduction of new primary legislation in the traditional sense.
  • Devolution - elements of the Bill prevent additional powers going to the devolved legislatures and essentially amount to a power grab by the Government.
  • Transition -  a transition will require a role for the ECJ and that the delegated powers will award ministers the power to decide when its supremacy over UK law will cease,  meaning ministers will be granted powers to define what a transition will look like without the authority of the Commons.

Next steps

After the Second Reading debate has concluded on Monday, the Commons will vote on a reasoned amendment. Reasoned amendments are not amendments seeking to change the content of the Bill but are motions opposing the Bill and giving reasons it should not become law. They are used when parliamentarians wish to cite specific reasons for their opposition, rather than simply voting against a Bill at Second Reading.

Read the full text of the debate.

Exiting the EU Oral Questions

The Exiting the EU Oral Questions took place in the House of Commons. There were no new announcements in terms of Government policy or approach, but the main points to note were:

  • Rt Hon David Davis MP emphasised that the Government was of the view that leaving the European Union would entail the UK's exit from the European Economic Area (EEA). He stated that this was not necessarily a settled view and that the Government was seeking final legal advice.
  • He dismissed the UK participating in EFTA, asserting that it was a sub-standard option for the UK. This was due to the fact that it would mean the UK would accept a legal and regulatory framework, which it would have a limited role in influencing. He also said that he considered European Free Trade Association (EFTA) as a transition option, but did not think it was right for the UK.
  • In response to a question from Sir Keir Starmer QC MP, Shadow Secretary of State for Exiting the EU, on whether the Government thought it would be better to accept an "off the shelf" transition rather than negotiate a bespoke arrangement, the Secretary of State said that there was a very good prospect of such a transition agreement being reached.
  • Vince Cable MP, leader of the Liberal Democrats, raised the specific issue of Brexit's impact on financial services. He said that financial services firms faced huge uncertainty, due to the prospect of having three separate regulatory rulebooks in the coming years: the EU's, a post-EU transition arrangement and the final post-transition settlement.
  • In his response, the Secretary of State responded by stating that any transition arrangement must give firms time to adequately accommodate to any changes. He also emphasised that there was a difference between the UK's legal responsibilities to the EU and its moral and political ones. This was specifically in regards to its financial contributions.

Read the questions in full.

Discount rate - changes announced

Further to the Government's response to the consultation launched in March, the Lord Chancellor announced proposals for calculating the discount rate applied to personal injury settlements.

Under proposed legislation, the rate will be set by reference to rates of return on 'low risk' rather than 'very low risk' investments as at present, in the region of 0% to 1%. The rate will also be reviewed at least every three years. The changes will be introduced by secondary legislation.

You can read the Lord Chancellor's written statement and our press release.

Lord Chief Justice's Report 2017

The Lord Chief Justice's Report 2017 was presented to Parliament. In his introduction, the Lord Chief Justice said:

Brexit

  • Brexit is one of the most complex and difficult issues that the UK has faced in peacetime. He reiterates the judiciary's support to the Government "to ensure that the Executive and Parliament are aware of the practical implications for the courts and for legal services as negotiations continue with the EU and the Bill and other legislation passes through Parliament".

The position of English law and the courts of the UK

  • The judiciary has worked with the Government, the UK legal profession, the City of London Corporation and the Brexit Law Committee to promote UK legal services and to counter the "false perceptions" of uncertainty caused by Brexit.
  • In the report, the Lord Chief points out that the Brexit Law Committee was established to provide a common strategic view to address these misconceptions. The membership includes a senior judge and representatives from the Bar, the solicitors' profession, TheCityUK, GC100, the City of London, and (in the future) the Financial Markets Law Committee.

Access to Justice

  • Significant progress has been made in the world-leading Courts and Tribunals Modernisation Programme: "we continue to highlight the importance of reform and how essential it is for there to be access to justice".

Judicial diversity

  • Diversity within the judiciary continues to be a priority: "we continue to strengthen judicial diversity in all its forms to ensure our judiciary is representative of the society it serves and attracts the best and most proficient candidates for the task".

Independence of the Judiciary

  • Independence of the judiciary remains a priority "at a time where we see the deterioration of judicial independence in other jurisdictions".

Legal profession and regulation

  • In relation to the legal profession, the report notes that "the twin pillars of our legal system are an independent, diverse, impartial and incorruptible judiciary and an independent, strong, diverse and effective legal profession".
  • The regulation of legal professionals and the regulation of the legal services market remains an open issue. The Lord Chief says that "now, more than ever, it is critical that careful thought is given to any changes and that strong safeguards are put in place when changes are made. Most importantly, the highest standards of training and practice must be encouraged and the practitioner's overriding duty to the court preserved so as to maintain the world-class reputation of our jurisdiction".
  • He adds that there is a concern that "the public interest too often gives way to the consumer interest, which is itself too narrowly defined". As a result, the judiciary will take a more structured approach to engagement with the representative and regulatory bodies in future to make sure the constitutional position of the legal profession is properly understood and weighted accordingly.

Read the report in full (pdf).

Friday 8 September

House of Lords

House of Lords Constitution Committee report on the EU (Withdrawal) Bill

The House of Lords' Constitution Committee published a report on the delegated powers in the EU (Withdrawal) Bill. The main recommendations are:

  • The Bill should ensure legal certainty so that individuals, organisations and the Government know what exactly the law is post-exit, without having to resort to litigation. The multiple uncertainties and ambiguities currently contained within the Bill raise fundamental concerns from a rule of law perspective.
  • The powers granted to ministers under the Bill must only be used to make the necessary technical changes to adapt EU law to function after Brexit. They must not be able to be used to implement policy decisions.
  • That parliamentary procedures must ensure that delegated legislation which contains significant policy decisions is subject to meaningful scrutiny by Parliament.

The Committee will launch a full inquiry on the EU (Withdrawal) Bill shortly.

Read the full report.

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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