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Withdrawal Bill begins Committee Stage and Law Society gives evidence on AI

22 November 2017

Last week the Secretary of State for Exiting the European Union announced that Parliament will get to vote on a final trade deal with the European Union, should the government be successful in negotiating one. He also delivered a speech on the EU negotiations where he highlighted the importance of our legal system and protecting the mobility of professionals.


Specifically, he used the example of the need for “a lawyer visiting a client in Paris” to continue and that it is in the interest of both sides. The EU (Withdrawal) Bill was debated at Committee Stage in the House of Commons for the first two days (out of a total of eight) and it will continue to be debated this week.

The chair of the Law Society’s Technology and the Law Group, Dr Pavel Klimov, gave oral evidence to the Science and Technology Committee as part of its inquiry on decision making of algorithms and recommended to the Committee that a body should be set up by the government to further determine the framework and suitability for future algorithm regulation.

Following the announcement that the government has begun a review of Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), the government confirmed they are now working with expert advisory panels to determine the most effective ways of working with people in need and provide the best early advice.

This week the Chancellor Phillip Hammond will deliver the first Autumn Budget. Measures on housing, stamp duty and investment in research (particularly AI) are expected. We will send a summary of the Budget announcements out this afternoon.

The Anti-Money Laundering and Sanctions Bill will be debated in the House of Lords at Committee Stage. We briefed peers in advance for the AML & Sections Bill - download our briefing.

Amendments to the Data Protection Bill will continue to be debated in the House of Lords, as the government considers how it will transfer the European Union's existing General Data Protection Regulation (GDPR) into UK law. The EU (Withdrawal) Bill and Sanctions and Anti-Money Laundering Bill will also be debated.

This week in Parliament 

Monday 20 November 

House of Commons

  • Oral Questions to the Home Secretary
  • Ways and Means Resolution presented by the Chancellor of the Exchequer relating to the Taxation (Cross-Border) Trade Bill
  • Data Protection Bill (Committee Stage, day 5 of 7)

Tuesday 21 November

House of Commons

  • European Union (Withdrawal) Bill (Committee Stage, day 3 of 8)

House of Lords

  • Sanctions and Money Laundering Bill (Committee Stage) 
  • Financial Guidance and Claims Bill (third reading)
  • EU Justice Sub-Committee Oral Evidence hearing: Brexit: the jurisdiction of the CJEU. Witnesses include:
    • The Rt Hon. Lord Hope of Craighead, Convener of the Crossbench Peers and Former Deputy President of the Supreme Court of the United Kingdom
    • The Rt Hon Lord Neuberger of Abbotsbury, Former President of the Supreme Court of the United Kingdom
    • The Rt Hon The Lord Thomas of Cwmgiedd, Former Lord Chief Justice of England and Wales
    • The Rt Hon Sir Konrad Schiemann, Former judge at the Court of Justice of the European UnionSanctions

Wednesday 22 November

House of Commons

Budget Statement by the Chancellor of the Exchequer

House of Lords

Data Protection Bill (Committee Stage, day 6 of 7)

Thursday 23 November

House of Commons

  • Budget Statement will be debated 

House of Lords

  • Oral question from Lord Wigley (LD) for short debate relating to discussions with the devolved administrations establishing an inter-governmental forum post-Brexit.

Last Week in Parliament

Monday 13 November

Government 

Speech by the Secretary of State for Exiting the European Union on future of financial services

David Davis noted that “our transparent and strong legal system encourages companies to do business and invest with confidence.” In his section about protecting the mobility of works and professionals across the EU he notes that “a lawyer visiting a client in Paris” will continue to be of interest to both sides. 

The broad theme of the speech was to set out three principles for a future relationship on financial services. These are: 

  • It must protect financial stability;
  • It must ensure consumer protection;
  • It must support the open and stable cooperative system we have built since 2008 for cross-border financial services. 

The wider points in the speech included:

  • Mutual benefits of a strong financial centre – He noted that the success of financial services based here in London has benefitted not just the United Kingdom economy, but economies right across Europe.
  • Fragmentation is a risk and would cost EU business and economy – He said that fragmenting clearing houses, or banking or insurance centres, would mean higher costs for European businesses, big and small. Businesses that depend on interconnected value chains across the world…this single pool of liquidity makes it cheaper and easier for European businesses.
  • Implementation period – During the implementation period, the UK will seek status quo on financial services which can be agreed under Article 50. He recognised that to do this would mean access to the United Kingdom and European markets under the current terms including staying in all the EU regulators and agencies during this period, which we expect will be about two years.
  • Access to talent – He said that the UK will need to design a new immigration system and it should not restrict access to talent. He noted that the Immigration Bill will be due next year.

House of Lords

The Data Protection Bill was debated for a third and fourth day at Committee Stage. Peers’ amendments were primarily focused on transferring existing laws under the European Union's General Data Protection Regulation (GDPR) into UK law. 

Peers considered amendments tabled on behalf of the Bar Council concerning provisions for legal proceedings, legal advice, legal rights and judicial acts. Amendments 62A, 80A and 83A were tabled Baroness Hamwee and considered instating provisions for legal professional privilege. The government Spokesperson Lord Ashton of Hyde stated there are separate provisions in the Bill for exemptions to protect legal professional privilege.

On the fourth day of reading, amendments considering the language used to consider the second data principle were adjudged by Lord Ashton of Hyde to have no material difference from the GDPR. He said we should retain the language used in the GDPR to avoid creating legal uncertainty. He pointed out that the EU (Withdrawal) Bill sets out how judgments of the Court of Justice of the EU are to be treated by domestic courts and tribunals after exit day.

He noted:

  • Domestic courts and tribunals are not bound by post-exit case law but may have regard to it if they consider it appropriate.
  • Pre-exit case law is binding on most domestic courts and tribunals in so far as it is relevant to questions pertaining to retained EU law.
  • The Supreme Court and, in some circumstances, the High Court of Judiciary are not bound. 

The Bill will continue to be debated at Committee Stage in the House of Lords on Monday 20 November and Wednesday 22 November.

Tuesday 14 November

House of Commons

European Union (Withdrawal) Bill – Committee Stage Days 1 and 2

The EU (Withdrawal) Bill completed its second of eight days in Committee Stage in the Commons. The Law Society briefed a number of MPs before the Committee stage.

The Law Society was mentioned in the debate by Labour MP Seema Malhotra, who highlighted our concerns about the uncertainty that comes from Clause 6.

  • Parliament considered Clauses 2, 3 and 4 of the Withdrawal Bill. All were approved without amendment.
  • One of the closest votes was on the protection of rights where the government’s majority narrowed to 12 votes. This is a key indication that when the Commons considers the Charter of Fundamental Rights on Day 3 it is likely to be contentious. 
  • As expected, Conservative MP Dominic Grieve QC, spoke too but did not seek to press his new clause (NC55) to a vote, which would ensure EU retained law can only be amended by primary legislation after Brexit. Instead he requested the government considers the points he has made, noting that he has “put the government on notice”, and suggesting that he will come back to the issue at Report Stage should the government have not remedied the issue.
  • Solicitor General Robert Buckland confirmed there will definitely be a Report Stage. 
  • So far there has been ten votes during the Committee Stage and the government is yet to lose one.

Law Society gives evidence to the Science and Technology Committee on Algorithms

  • The Law Society presented oral evidence in Parliament before the Science and Technology Select Committee as part of its inquiry on decision making of algorithms. The chair of our Technology and the Law Committee, Dr Pavel Klimov, presented evidence to the Committee, alongside Liberty and the Oxford Internet Institute.
  • Dr Klimov told the Committee that the Law Society is increasingly talking about machine learning algorithms and considering how these machines are learning. He said is now not so easy to unravel and understand the decisions taken at different levels; that the Law Society is considering that humans are not always in control of the decisions taken; and that we may not know why the decisions are being made. In conclusion with other witnesses, Dr Klimov agreed on behalf of the Law Society with the chair that a body should be set up to determine the framework and suitability for algorithm regulation.

Wednesday 15 November

House of Commons

European Union (Withdrawal) Bill – Committee Stage Day 2

See notes above

Westminster Hall debate on family justice reform

Conservative MP Suella Fernandes called for a review or commission in the family justice system, to cover three main areas: strengthening child wellbeing and families; instilling a fairer divorce regime; and creating a more transparent justice system. Below is summary of the proposals called for:

  • Divorce and separation law: Fernandes called for reform of England’s divorce law which she said promotes the allocation of blame and fuelling of confrontation and cost, adding it was time for no-fault divorce. The Ministry of Justice Minister Dr Phillip Lee responded to calls for reform of divorce laws by saying government will study the evidence for change while not rushing to a conclusion. He added that the Law Commission had published proposals on nuptial agreements, and the government would consider those and make their position known in due course. 
  • Family courts: Fernandes called for greater transparency in family courts and reform of the way in which the family courts operate in public law. Lee said in response that family courts often consider extremely sensitive information about individuals which should not become public.
  • Child wellbeing: Proposed a rebuttable presumption of shared parenting, saying it would actively enable more of the meaningful relationship to be fostered between parent and child in the event of family breakdown. In response Dr Lee said that the quality of parenting, rather than any particular pattern of it, is the most important thing for a child, adding that Parliament stopped short of introducing a presumption of shared parenting because every family is different, and every child’s needs are different, saying the law provides for the maximum flexibility.
  • Grandparents: Dr Lee responded to calls for change in law was possible so that grandparents have a right to access their grandchildren by saying it was preferable to reach an informal agreement on contact with the family, and failing that, grandparents can apply to the court for an order.

House of Lords

The Data Protection Bill was discussed in Committee for the second time this week. The transcript of the debate can be found here.

Thursday 16 November

House of Commons

Attorney General Questions

Highlights from Oral Questions to Attorney General Rt Hon Jeremy Wright QC MP are provided below:

  • Pro Bono: Nigel Huddleston (Conservative, Mid Worcs) expressed concern that MPs are not capable of dealing with complex requirements of some constituents that demand enhanced pro bono work and more legal aid. In response and in detailing the government’s work on this, the Solicitor General Robert Buckland QC MP 

·        highlighted that Pro Bono Week had just taken place 

·        referred to the Bar Scheme and Law Works Scheme 

·        said the government is currently reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) is working with expert advisory panels to determine the most effective ways of working with people in need and provide the best early advice.

  • Cooperation with the EU following Brexit - In response to a question considering the UK’s ability to prosecute criminals following Brexit, the Attorney General Jeremy Wright QC MP said the government will work together with the EU to create new dynamic partnerships to strengthen close collaboration on criminal justice, safety and criminal prosecutions. He maintained that offences committed transnationally should be dealt with transnationally. Mr Wright also said the UK had a number of agreements with countries outside the EU that permitted effective cooperation on cross-border prosecutions. In the event of the UK not reaching a deal with the EU in the current negotiations, he said the government would strive to keep cooperating closely with European officials. 
  • Brexit and the Protection of Human Rights - Jeremy Wright said that Brexit need not impact the UK’s long history of providing human rights protections. He said the government would not be supporting codification of the EU’s Charter of Fundamental Rights into UK law and said the government would be translating substantive rights provision from EU law into domestic statue via the EU (Withdrawal) Bill. He also said the UK government remained committed to European Convention on Human Rights.

Friday 17 November

 

House of Commons

Exiting the EU Select Committee publishes report on the EU (Withdrawal) Bill

The Exiting the EU Select Committee published a report on the EU (Withdrawal) Bill and said a number of the provisions in the Bill responsible for converting and preserving EU law raise a number of significant legal and constitutional questions. They note there was no consistent view across the evidence heard as to which laws would be preserved and how they would be treated. The Committee:

  • Called on the government to provide more clarity and information on the scope and status of retained EU law, including making clear whether it is to be treated by the courts as primary legislation, so that they cannot rule it to be invalid, or secondary. Greater clarity should also be given to assist judges on exactly how they are to apply CJEU decisions issued after exit day. 
  • Said it would be helpful if the government published its memorandum on rights set out in the Charter [of Fundamental Rights], as referred to by the Minister, before Clause 5 is considered during the Committee Stage of the Bill.
  • Raised questions have been raised around the appropriateness of the delegation of legislative powers in the Bill. Ensuring that Parliamentary scrutiny of legislative change is not compromised requires Parliament to operate appropriate procedures for the scrutiny of delegated legislation.
  • Recommended the Procedure Committee’s proposals on the scrutiny of delegated legislation under the Bill.
  • Said uncertainty will only be removed if all the necessary legislative amendments are in place by exit day to ensure that there are no gaps left in the statute book. This will require substantial Parliamentary time and we believe that this must be found even if it results in longer sitting hours or a curtailed Parliamentary recess.
  • Said the government should be clearer as to which dispute mechanisms it considers appropriate for which types of dispute. 
  • Noted that a continuing role for the CJEU and its case-law cannot be ruled out in areas where there may be continued partnership or convergence of standards and European Union (Withdrawal) Bill regulations, it is not appropriate that the CJEU would continue to have jurisdiction in the UK to enforce citizens’ rights after the UK has left the EU. This should be done by a body representing both parties to the agreement.

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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