Alexandra Cardenas discusses the government's reaction to the article 50 ruling and diversity in law.
This week, the government reacted to the High Court's ruling that the government does not have power to trigger article 50 without parliamentary approval and a vote from MPs. In parliament the secretary of state for exiting the EU, David Davis MP, reiterated the government's argument that it is constitutionally proper and lawful to give effect to the referendum result by the use of prerogative powers. He also noted that government values the independence of the judiciary, but also the freedom of the press, adding that both these things underpin the UK's democracy.
The lord chancellor gave a speech on women in the law and improving diversity. She expressed her commitment to tackle practical barriers and mind-set that stops talented women and ethnic minorities becoming silks, senior in law firms and becoming part of the judiciary. She specifically outlined four policies to increase diversity within the judiciary and noted her productive conversation with the Law Society on this issue.
The government published its response to the Justice Select Committee's courts and tribunal fees report. In response to the committee's recommendations, the government said that they will soon be publishing a post-implementation review into employment tribunal fees and is looking into the impact of money claims fees on our international competitiveness. The government did not accept the committee's recommendation on reducing the fee for a divorce petition, delaying increases to Immigration and Asylum Tribunal fees and changes to the fee remission system.
The House of Commons is in recess from Wednesday 9 November and will return on Monday 14 November. The House of Lords is in recess from Thursday 10 November and will return on Tuesday 15 November.
Monday 7 November
House of Commons
Statement - article 50
On Monday, secretary of state for exiting the EU, David Davis MP, made a statement following the High Court's judgment on article 50. Please find the key points below:
- Government's position: Davis said that the government's core argument to the Supreme Court will be that it is constitutionally proper and lawful to give effect to the referendum result by the use of prerogative powers.
- Need for act of parliament: Davis did not address whether an act of parliament would be needed if the government loses the appeal in his original statement, however responding to questions from Hilary Benn MP (Lab) and Pat McFadden MP (Lab), he confirmed that his understanding of the current position is that legislation would be required for the government to invoke article 50. However, he also emphasised that his exact response on this would depend on the Supreme Court judgment.
- Process of appeal: The government has been granted the certificate to leapfrog the Court of Appeal. This week the government will apply for substantive permission to appeal to the Supreme Court. Davis commented that it is likely that any hearing will be in early December, and he hopes the judgment will be provided soon after.
- Northern Ireland litigation: There is a hearing in Belfast tomorrow on whether this case should also leapfrog the Court of Appeal, and whether issues that overlap with the English court should remain stayed pending the outcome of the Supreme Court decision. In the event of any appeal in the Northern Ireland case, the government will defend its position.
- Timing: The legal timeline remains consistent with the triggering of article 50 before the end of March 2017. The timeline for the Northern Ireland case should also be consistent with this.
- Independence of the judiciary: Davis said that the government values the independence of the judiciary, but also the freedom of the press, adding that both these things underpin the UK's democracy.
- Role of parliament: Parliament will have a central role in finding the best way forward, and the government will be as transparent as possible. But there is also a balance to be struck with maintaining a strong negotiating position.
- Referendum result: Davis emphasised that the result of the referendum must be respected, and that there must be no attempts to remain inside the EU, to re-join by the 'back door', or for a second referendum.
- Exiting the EU Committee: The Brexit Committee will be visiting the department for exiting the EU tomorrow.
In response to the statement, shadow secretary of state for exiting the EU, Keir Starmer QC MP said:
Read the transcript
- Parliamentary sovereignty: Starmer said that the sovereignty of parliament matters, criticising the government for approaching this task in wrong way.
- Criticism of judiciary: Starmer said that it is the government's, and particularly the Lord Chancellor's, duty to stand up for the rule of law and independence of judiciary, and they have failed to do so. He also criticised Davis' statement for failing to condemn the media attacks on the judges. Davis responded by saying he did not accept that the Lord Chancellor had failed to do this.
- Role of parliament: Starmer said that no one expects the government to reveal all details of its negotiating position, but there are broad, basic questions which require clear answers, such as an indication of the government's stance on the single market. To this point, Davis repeated the four very broad aims of the government (to bring back control of laws to the UK; to gain control of immigration; to get the best possible security benefits; and to get the best solution for the economy).
- Referendum result: Labour will not vote down article 50 as it will not frustrate the process, but cannot have a debate in a vacuum. Davis responded to this by criticising Labour for its confused position over the weekend.
The Intellectual Property (Unjustified Threats) Bill is at committee stage where further amendments are being considered.
Tuesday 8 November
House of Lords
Oral question: Magistrate sentencing powers
During the debate on magistrate sentencing, in response to a question from Lord Faulks (Con), Justice Lords spokesperson Lord Keen of Elie (Con) stated that our judiciary is of the highest calibre whilst our free press are not always. He said that 'sensationalist and ill-informed attacks' can undermine public confidence and noted that both the public and the executive should share this confidence.
Wednesday 9 November
Government responds to Justice Select Committee report on courts and tribunal fees
The government has published its response to the Justice Select Committee's report on courts and tribunal fees. The Law Society submitted written evidence in October 2015 and past president Jonathan Smithers gave oral evidence in February 2016.
- The government confirmed that it is currently undertaking research into the impact of fees for money claims on the international competitiveness of London as a litigation centre. Research will help inform future decisions on the fees charged for these types of claim.
Employment Tribunals (ET)
- The government is finalising the post implementation review of fees and the conclusions will be published in due course.
- They did not take up other recommendations by the committee on ET fees at this stage as they are being considered within the review.
- The government will be considering the JSC's recommendation on the time limit of three months for bringing a maternity or pregnancy discrimination claim as part of a report by the Women and Equalities Select Committee. They will provide a response to the recommendations in this report in due course.
- The government did not accept the recommendation to rescind the increase in the divorce petition to £550. They note that there has not been evidence that the fee increase has led to a fall in applications for divorce and will continue to monitor this.
Immigration and Asylum appeals
- The government disagreed with the JSC recommendation that immigration and asylum appeal fees should be delayed until the after the publication of the review of the impact of ET fees.
- They say that immigration and asylum fees are not comparable with ET fees for several reasons including:
- that ET claims deal with private disputes whereas Immigration and Asylum appeals concerns decisions of the home secretary
- one of the aims of introducing fees in the ET was to encourage people to use ACAS's free conciliation service.
- The government noted they have published the response to increasing fees for proceedings in the immigration and asylum chambers and this included an announcement that the government will extend the fee waiver and remissions policy so that those in receipt of a Home Office fee waiver on the grounds of destitution will also have their tribunal fee waived. The government decided not to extend the standard fee remission scheme.
- The government stated that they already make use of graduated and sequential fees where appropriate so do not feel the need to undertake a pilot of this nature.
- The government rejected the recommendation to introduce fees for respondents as a respondent has little influence over the decision to litigate.
- The government rejected the Law Society's recommendation, taken on by the Justice Select Committee, to introduce a regular rerating of remission thresholds as the MoJ keeps fees under regular review.
- The government also rejected the recommendation to automatically exempt basic rate taxpayers from paying court or tribunal fees.
Bob Neill MP, chair of the Justice Select Committee, has noted his disappointment in the government's response stating that they feel it was 'offensively perfunctory' and shows 'little evidence of attention paid to the committee's detailed evidence and analysis.' He noted that he will be raising this issue in parliament.
Read our statement
House of Lords
Policing and Crime Bill
The Policing and Crime Bill is at committee stage where further amendments are being considered. The full transcript is here.
Intellectual Property (Unjustified Threats) Bill
Thursday 10 November
Lord Chancellor speech on diversity
In a speech to the Spark21 conference, the lord chancellor made a speech on the impact of women in the law and the need to improve diversity within the legal profession, particularly within the judiciary. She noted it wasn't a case of 'diversity for diversity's sake' but 'talent for talent's sake.'
She said she wanted to tackle both the practical barriers and a mind-set that can prevent talented women and ethnic minorities breaking through to take silk, reach the senior levels of law firms and most of all to become part of the judiciary. She specifically noted her positive meetings with the Bar Council, Magic Circle, the Silver Circle and the Law Society on this issue.
Within the speech she said that the independence of our judiciary was vital, as demonstrated by the events of this week (article 50 Judgment).
She specifically announced four steps to improve diversity:
- A top 100 talent competition - in the next Recorder competition, expected to launch in February 2017, the Judicial Appointments Commission will appoint judges from the top 100 talent, without a requirement to have experience in any particular type of law, regardless of where they live.
- Opening up the High Court - to make it easier to go straight into the High Court, the next recruitment campaign will for be open to 'direct-entry candidates' to the High Court to encourage academics, in-house counsel or Magic Circle solicitors who spend more time in boardrooms than courtrooms.
- Quicker progress for Deputy High Court judges - a new fast-track process for Deputy High Court judges to apply for full High Court office as soon as they are ready.
- Potential - judicial applications assessment of merit needs to include an assessment of potential and support will be offered for those who have not worked in a courtroom.
Friday 11 November
Nothing to report.