Westminster update: lord chancellor appears before the Joint Committee on Human Rights
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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1. Lord chancellor appears before the Joint Committee on Human Rights
On Wednesday 18 November, the lord chancellor, Robert Buckland QC MP appeared before the Joint Committee on Human Rights to give evidence.
Dean Russell MP (Conservative) opened the session asking about plans to update the Human Rights Act and the government’s stance on the EU Convention on Human Rights.
The lord chancellor felt it was right to look at the Human Rights Act given its age and to ensure it was working in a way that “benefits the majority of us and that the mechanisms are effective.” In his view, the review context was around “enhancement of protection”.
When pushed on specific examples of the act being out of date, the lord chancellor felt it was sensible to “take stock of where things had got to” given developing case law.
The lord chancellor was asked by Joanna Cherry QC MP (SNP) on what needed to be reviewed in administrative law. He felt that after a “generation of the expansion of administrative law” it was right to ascertain whether changes were needed to “strike the right balance”. Judicial review should not be “politics by other means” and it needed to be ensured that judges were not drawn into the merits of policy.
Cherry noted that some legal decisions had political implications and did the lord chancellor see the distinction. He said that no-one was saying judges were making “political decisions based on opinions they may hold”, but there was a risk that judges were being placed in a political arena and were being seen as having a political tinge.
Lord Singh (Crossbench) asked if the lord chancellor agreed that lawyers should not be attacked for representing clients. The lord chancellor said that as a member of the Bar, he believed in representing his clients without fear or favour and believed the vast majority of legal professional were the same. He would not accept attacks on lawyers for “doing their job.”
However, the lord chancellor did note seeing examples of members of the profession using social media to “vaunt their political views to gain prominence and publicity and to generate work” that worried him.
2. Law Society evidence referenced in International Trade Committee Japan report
The International Trade Committee published a report from its inquiry on the UK-Japan Comprehensive Economic Partnership Agreement (CEPA), which we submitted evidence to.
We were referenced several time at the top of the services section, being the only non-government body referenced on mutual recognition of professional qualifications.
The committee welcomed the signing of the agreement, saying their evidence indicates it has generally had a positive reaction from a range of business sectors due to the continuity and certainty it brings.
They qualified this by noting that “CEPA is only one factor affecting the future of UK-Japan trade and investment,” and observed that the future will also be significantly influenced by whether an EU-UK trade deal is achieved.
Observing that government has been “keen to present CEPA as much more than a simple roll-over of the EU-Japan trade agreement,” the committee noted that data and digital provisions are a key example of this.
The committee also noted that scrutiny of this agreement has focused on the difference between the previous EU-Japan relationship, and the new CEPA.
As “future agreements will be much less of a known quantity than this one,” and as “they are likely to be significantly more controversial,” the committee pledged to undertake scrutiny of future agreements on “their own merits.”
3. National Security and Investment Bill scrutinised by MPs
The second reading of the National Security and Investment Bill took place in the House of Commons on Tuesday 17 November.
We briefed MPs ahead of the debate in general support of the Bill, while outlining concerns around the scope and technical detail of the Bill.
The secretary of state for business, energy and industrial strategy, Alok Sharma MP, stated that while the government wants the UK to be “open for business”, it does not want to be “open to exploitation”. The bill provides a mandatory obligation for sectors perceived to be of highest national security risk, with a voluntary regime for others.
Many challenges were brought to the bill, including Bob Seely MP (Conservative) and Layla Moran MP (Lib Dem) criticising the narrow definition of national security referenced in the bill.
Sir Ian Duncan Smith MP (Conservative) said the absence of a true national security test means the bill lacks “clarity and definition”. The secretary of state presented the narrow definition as a strength, arguing that it offered the government flexibility to act depending on what risks present themselves.
Greg Clark MP (Conservative) argued that businesses are drawn to Britain due to their “confidence in our rule of law” and that a clear test related to national security would provide “a sense of predictability and confidence” for potential investors.
Duncan Smith also argued that the powers granted to the government could place the secretary of state in the position of facing legal challenges for any decisions made.
Sharma stated that the government would apply the “public law principles of necessity and proportionality” to all decisions made and that the powers were important and “fully justiciable under the bill”. Potential acquirers can challenge any notification decision through judicial review or appeal, which the government can request to be held through a closed material procedure.
Kevan Jones MP (Labour) highlighted the controversial nature of closed court hearings and stated further clarification on how they would work in practice was necessary.
4. MPs support removal of mental health easements from Coronavirus Act
On Wednesday 18 November, the Delegated Legislation Committee considered and approved the Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020 in a short debate.
We briefed MPs in support of the regulations, which will expire provisions under Schedule 8 to the Coronavirus Act 2020 in England which would weaken Mental Health Act 1983 protections if brought into force, as we noted in our Law under Lockdown report from September.
The minister for patient safety, mental health and suicide prevention, Nadine Dorries MP, introduced the regulations stating that they are part of a government commitment to keeping all elements of the Coronavirus Act 2020 under close review and to sunsetting any provisions that are no longer necessary.
She reiterated that the powers being expired were always “powers of last resort” and noted that they have not been commenced or used at any point. She also noted that the regulations only expire provisions that are not devolved to the Welsh Government.
The minister further restated the government’s commitment to publish a white paper setting out our priorities for reform to address inequalities in the mental health system.
Responding for the Opposition was Rosena Allin-Khan MP (shadow mental health minister). She welcomed the regulations and stated Labour’s support for them. She noted that in March an additional 2,441 people were discharged from mental health hospitals, an increase of 26% on February. She stated that it's vital that discharged patients continue to receive the care they need.
The regulations will now to the full House of Commons for vote without debate on whether to bring them into force.
The House of Lords will also be considering the regulations on Wednesday this week.
5. UK Internal Market Bill examined in report by the Lords
On Wednesday 18 November the Lords debated the UK Internal Market Bill in report, focusing on amendments covering devolution, Northern Ireland, and mutual recognition of goods.
This is the first session since the Lords debated and amended the Internal Market Bill in Committee, when the entirety of Part 5 of the Bill (Clauses 42-47), which would have given ministers the power to breach the UK’s obligations under the Withdrawal Agreement, was removed.
44 Conservative peers voted against the government, including former party leader Lord Howard, as well as Labour, the Liberal Democrats, the SNP, the Greens, and a significant number of crossbenchers. We had briefed against these clauses throughout the passage of the Bill.
The Bill will have several more days of report, and then third reading in the Lords, before returning to the Commons.
It's unlikely it will be debated again in the Commons until December, and Lords across parties have made clear their intention to repeatedly oppose any reinstatement of Part 5 of the Bill.
The government have committed to retabling the clauses in question when it returns to the Commons. However, if a deal with the EU is achieved, the offending sections may be dropped.
Coming up next week
On Tuesday, the National Security and Investment Bill enters the Committee stage in the Commons.
There will be a Westminster Hall debate on Business and Economic Opportunities after Huawei's Exclusion from the 5G Network on Tuesday.
MPs will also continue to debate the Environment Bill in committee stage on Tuesday and Thursday.
On Wednesday, there will be a general debate on the UK-Japan comprehensive economic partnership agreement. Expect questions to the Foreign and Commonwealth Office and Minister of Women and Equalities on Tuesday and Wednesday respectively.
In the Lords, the UK Internal Market Bill continues at the report stage on Monday and Wednesday. The European Union (Withdrawal) Act 2018 (Relevant Court) (Retained EU Case Law) Regulations 2020 and the Coronavirus Act 2020 (Expiry of Mental Health Provisions) (England and Wales) Regulations 2020 will be discussed on Wednesday. Thursday will see a Grand Committee Debate on the Trade Agreement between the UK and Japan for a Comprehensive Economic Partnership.
If you made it this far
Take a look at LexisNexis’ latest edition of the Gross Legal Product Index, which explores the impact of COVID-19 on the legal services market and the sector’s outlook for the remainder of 2020.