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Westminster weekly update: EU Withdrawal Bill returns to the House of Lords

20 June 2018

In Parliament, the EU Withdrawal Bill returns to the House of Lords after the amendments were voted on in the Commons last week. The EU Justice Sub-Committee will also hear evidence on Brexit and citizen’s rights, and the Courts and Tribunals Bill is scheduled to have its second reading.

Earlier this week the Law Society published new statistics on the composition of the solicitors’ profession. There are now over 180,000 solicitors of which almost 140,000 are practising certificate holders. The new data demonstrates a significant increase on diversity of our sector:

  • Gender: There are now more women than men practising as solicitors (50.1% of practising certificate holders are women). The number of women partners increased by 1.7% - however, this is still low compared to male counterparts.
  • Ethnicity: Almost 17% of practising solicitors are from BAME groups - however, ethnicity was unknown for 69% of new admissions to the profession.
  • Routes to qualification: Admissions via overseas transfers (such as through the Qualified Lawyers Transfer Scheme QLTS) represented almost one in ten admissions.

The statistics also showed diversity on business models and areas of practice:

  • Alternative Business Structures (ABSs): There are now 600 ABSs– the largest increase since licenses were first introduced in 2012.
  • In-house: In-house solicitors represent 22% of the profession. Although there was an increase compared to 2016, there is more stability on the growth of this segment.
  • Private practice: The number of solicitors working in private practice grew significantly by 2.2% in 2017 (there are now 93,155 solicitors in 2017) and the number of firms also increased to 9,488.

Last week also saw the Government released two documents relating to the framework for the UK-EU Economic partnership which covered, civil judicial co-operation and company law. The document reflects several our calls to the UK Government on civil judicial co-operation.

In Parliament, the EU Withdrawal Bill returns to the House of Lords after the amendments were voted on in the Commons last week. The EU Justice Sub-Committee will also hear evidence on Brexit and citizen’s rights, and the Courts and Tribunals Bill is scheduled to have its second reading.

An adjournment debate will take place in the Commons on the effect of court closures on access to justice in Calderdale. The Joint Human Right Committee is scrutinising the Government’s Counter Terrorism and Border Security Bill, with the Independent Reviewer of Terrorism Legislation, Max Hill QC scheduled to provided evidence. A public bill has also been constituted for the Bill.

This week in Parliament

Monday 18 June

House of Commons

  • Consideration of Lords amendments - Automated and Electric Vehicles Bill
  • Treasury Sub-Committee - Oral Evidence Session: The conduct of tax enquiries and resolution of tax disputes

House of Lords

  • Oral question: Improving performance on immigration matters in the Home Office - Lord Roberts of Llandudno
  • Legislation: European Union (Withdrawal) Bill - Consideration of Commons amendments - Baroness Evans of Bowes Park, Lord Callanan
  • European Union Committee - Oral Evidence Session: Brexit: UK-Irish relations follow-up

Tuesday 19 June

House of Commons

  • Foreign Affairs - Oral Evidence Session: The FCO’s human rights work
  • Treasury - Oral Evidence Session: Economic Crime

House of Lords

  • Liaison Committee (Lords) - Oral Evidence Session: Review of investigative and scrutiny committees
  • Communications Committee - Oral Evidence Session: The internet: to regulate or not to regulate?

Wednesday 20 June

House of Commons

  • Joint Human Rights - Oral Evidence Session: Legislative Scrutiny: Counter-Terrorism and Border Security Bill Justice - Oral Evidence Session, Disclosure of evidence in criminal cases
  • Public Bill Committee - Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill

House of Lords

  • Legislation: Courts and Tribunals (Judiciary and Functions of Staff) Bill [HL] - Second reading - Lord Keen of Elie
  • Liaison Committee (Lords) - Oral Evidence Session: Review of investigative and scrutiny committees

Thursday 21 June

House of Commons

  • Oral questions: Attorney General
  • Digital, Culture, Media and Sport (including Topical Questions)
  • Adjournment: Effect of court closures on access to justice in Calderdale

House of Lords

  • EU Justice Sub-Committee - Oral Evidence Session: Brexit: citizens' rights

Last week in Parliament

Tuesday 12 June

House of Commons

European Union (Withdrawal) Bill ‘Ping Pong’

The House of Commons held its first of two ‘ping pong’ debates on the European Union (Withdrawal) Bill in the House of Commons. The full debate can be read here.

The Bill returned to the Lords on Monday 18 June and will come back to the House of Commons on Wednesday. The key points were:

  • The Commons voted against a proposed Lords amendment on a meaningful vote. The Lords amendment stated that the Government must follow any direction in relation to the Brexit negotiations which has been approved by a resolution in the Commons and subject to the consideration of a motion in the Lords, in the event that the Commons does not approve the Withdrawal Agreement by 30 November 2018 or an Act of Parliament to approve the Withdrawal Agreement does not receive Royal Assent by 31 January 2019. MPs voted against the amendment by a vote of 324 to 298.

  • A compromise amendment tabled by Conservative Dominic Grieve MP to the Lords meaningful vote amendment was not moved for a vote. Grieve’s amendment would have given the Government until the end of November to negotiate a political agreement on the Withdrawal Agreement. However, if this deadline passed, the Government would then have had to put forward a motion in the Commons setting out their proposed next steps – and achieve the support of the House of Commons. In the event of no political agreement being reached on a Withdrawal Agreement by the end of 15 February 2019, Parliament would then be able to determine the next steps in the Brexit negotiations.

  • Grieve agreed to not move his amendment to a vote, and to vote against the existing Lords amendment on a meaningful vote, after Solicitor General Robert Buckland MP promised a 'structured discussion with Grieve and other pro-EU MPs on Parliaments’ role in the event of Parliament rejecting the final Withdrawal Agreement. As part of this undertaking, the Government has promised to present a compromise amendment, addressing concerns made by Grieve, when the Bill returns to the Lords. Following the Government’s undertaking to Grieve, other pro-EU Conservatives stated that they would support the Government’s position and vote against the Lords amendment.

  • The Government’s own amendment, which would replace the Lords meaningful vote amendment, passed without opposition. The Government’s amendment removes the provisions in the Lords amendment which would allow Parliament to dictate the next steps in the event of no deal or Parliament rejecting the deal, instead stating that if Parliament rejects the final Withdrawal Agreement, a Minister will make a statement laying out how the Government 'proposes to proceed' within 28 days. However, given the Government will table another meaningful vote amendment in the Lords next week, this amendment will unlikely represent the settled position on a final Parliamentary vote on the Withdrawal Agreement.

  • The Government were successful in either removing or replacing all other amendments from the Bill that the Government deemed hostile – including on the use of secondary powers and on the Irish border.

Justice Select Committee hears evidence on criminal legal aid

On 12 June the Justice Select Committee heard evidence regarding criminal legal aid from Andrew Walker QC, the Chair of the Bar Council, and Angela Rafferty QC, the Chair of the Criminal Bar Association.

This is the second session as part of the Committees work to explore developing concerns on criminal legal aid. Law Society head of justice Richard Miller gave evidence to the first session alongside Daniel Bonich, the co-Chair of the Criminal Law Solicitors Association.

The session can be read here, and a short summary is below.

  • The session took place following the result of the ballot of members of the criminal bar regarding proposals by the Government to end action that the criminal bar had undertaken in response to concerns over the Advocates’ Graduated Fees Scheme. The meeting started by confirming the results, which narrowly voted in favour of ending action and accepting the Government’s proposal.

  • Walker gave a brief history of the graduated fee schemes, and on the impact that recent cuts to fees have had on the legal professions. Walker raised concerns regarding the amount of evidence in criminal cases due to the increase in digital evidence.

  • Rafferty said that she hopes that everyone in the Bar will benefit from the proposal, but that their campaign on concerns across the criminal justice system will continue. Walker added that the proposal is a ‘patch repair’.

  • Walker called on the Government to reward advocacy and litigation properly for their work. He said that barristers and solicitors need to be remunerated properly for the everyday work that they undertake. He said that solicitors are just as concerned about the issues affecting the criminal justice system and the rule of law.

House of Lords

Civil Liability Bill Report Stage

The Civil Liability Bill had its Report Stage in the House of Lords. The Law Society briefed peers ahead of the debate. The full transcript of the debate can be found here.

A number of amendments were debated at Report Stage. The key points from the debate were:

  • There was a long debate on Amendment 18, moved by Crossbench peer Lord Woolf, which sought to remove Clause 2 from the Bill, which aims to introduce tariffs for compensation in whiplash cases. Lord Woolf argued that Clause 2 was 'an undesirable change from practice hitherto', both in terms of judicial responsibility and in the small claims court process.

  • In response, Lords Ministry of Justice Spokesperson Lord Keen of Elie said that the removal of Clauses 2 and 3 from the Bill 'would in effect tear the bottom out of it'. Such a move would also 'frustrate' the Conservatives’ 'manifesto commitment to reduce the cost of insurance for ordinary motorists by cracking down on exaggerated and fraudulent whiplash claims'. The amendment was pushed to a vote and was rejected narrowly.

  • Government Whip Baroness Vere of Norbiton spoke to Amendments 1 and 4 which concerned the full definition of a ‘whiplash injury' within the Bill.

  • She said that the Government had carefully considered the views of the Delegated Powers and Regulatory Committee and had reached the conclusion that such a definition should 'be defined in full in the Bill rather than in regulations'. The Law Society had argued that this should be the case.

  • Baroness Vere of Norbiton also detailed what the Government’s proposed full definition was and said that, aside from providing 'clarity and certainty for both claimants and defendants', it would allow for action to be taken in addressing the 'continuing high number of whiplash claims which so impact on the cost of insurance premiums for ordinary motorists.'

  • She argued it was 'essential that the full definition can be adapted so it can respond to future medical developments or changes in the behaviour of the claims market'. In view of this, she highlighted how Amendment 4 would allow for this through permitting the Lord Chancellor 'to amend, by regulations', the definition of a whiplash injury, but only after consulting with relevant bodies, including the Law Society.

The Bill will continue at Third Reading in the House of Lords on 27 June.

Wednesday 13 June

House of Commons

Robert Khan at the House of Lords Liaison Committee

Law Society Executive Director of External Affairs Robert Khan gave evidence to the House of Lords Liaison Committee as part of their review of House of Lords investigative and scrutiny committees. Khan spoke on a panel alongside Michael Clancy of the Law Society of Scotland.

During the session:

  • Khan argued that new technology, Brexit and the political climate all provide reasons why reviewing Lords Committees are a priority. Clancy agreed, and said that since the last review of Lords Committees over 20 years ago, the world has changed. Both cited the effect of new technology across society and the impact that has had on scrutiny.

  • Khan and Clancy both called for greater use of pre- and post-legislative scrutiny as a way of ensuring that legislation is drafted well, unintended consequences are considered and avoided, and that lessons can be learnt about the effect of legislation. Khan raised the Legal Aid, Sentencing and Punishment of Offenders Act as an example of legislation where post-legislative scrutiny by Lords would be welcome.

  • Khan said that the purpose of Lords Committees was to provide robust scrutiny of government legislation and policy, and to explore cross-cutting issues such as technology and artificial intelligence. He noted the significant experience and expertise which members of the House of Lords possesses.

  • Clancy argued that the tone of Lords and Commons Committees are different, and that the Lords can play a different role in scrutinising the Government. He said that Brexit will change the work of the UK and the House of Lords and that we need to be prepared for all eventualities, and in that he included how Lords and Parliament could scrutinise the Government.

  • Khan spoke about the EU Select Committee, and that in the short term after Brexit there may be a need for even more scrutiny of EU matters and called for EU Select Committee to remain in position. He spoke about the transfer of regulations from the EU to the UK and the role that the Lords could play in assessing whether it is needed or whether any changes are required and noted Lord Pannick’s concern on ‘zombie law’.

  • Khan and Clancy both agreed that members and chairs of Lords Committees should be elected by Lords.

  • Khan welcomed the idea of a Legislative Standards Committee to improve legislative standards and said that committees such as the Lords Delegated Powers Committee and the Joint Committee on Human Rights provides some of the functions already. Khan argued that the House of Lords has a role in upholding high standards in legislation.

  • Clancy spoke about devolution and the work of, in particular, the Scottish Parliament. Khan spoke about the work of regional mayors and local government and the scrutiny that takes place there and encouraged Lords Committees to go out of the ’Westminster bubble’ and speak directly to organisations as part of their inquiry. He provided an example that the view of the effect of Brexit on legal services could be different for firms in the City to the views of firms in the North of England.

  • Khan and Clancy both spoke about ways to make the Committees more accessible for the public, including changing the language associated with them. Clancy argued that there is a difference between those being scrutinised and challenged such as ministers, to those invited to participate and provide different views, such as how they had been invited to this session.

European Union (Withdrawal) Bill ‘ping pong’ (Day 2)

The House of Commons held its second day of ‘ping pong’ debates on the European Union (Withdrawal) Bill in the House of Commons. The full debates can be read here.

  • MPs voted against a House of Lords amendment which would require the Government to adopt, as a negotiating objective with the EU, continued participation in the European Economic Area (EEA) post-Brexit by 327 to 126.

  • MPs voted against an amendment tabled by the Labour leadership, to the Lords EEA amendment, by 322 to 240. The Labour amendment was a compromise amendment, instead seeking to force ministers to negotiate a new deal that would give 'full access to the internal market of the European Union, underpinned by shared institutions and regulations, with no new impediments to trade and common rights, standards and protections as a minimum'.

  • MPs also voted against a House of Lords amendment which would require the Government to lay before Parliament the steps it has taken to negotiate the UK’s participation in a customs union with the EU, by 325 to 298.

  • However, MPs agreed to Government amendments which would replace the existing Lords amendment, instead requiring ministers to lay before Parliament steps it will take to negotiate a ‘customs arrangement’ with the EU, as part of the final Brexit deal. The Government’s amendments were agreed without division.

  • The Government were successful in either removing or replacing all other Lords amendments from the Bill that the Government deemed hostile – including on the Charter of Fundamental Rights and on refugee family unity.

Justice Select Committee continues disclosure inquiry

The Justice Select Committee continued its inquiry into the disclosure of evidence in criminal cases. Law Society president Joe Egan gave evidence to this inquiry in May.

On 13 June, the Committee heard evidence separately from the Rt Hon Nick Hurd MP, the Minister for Policing and the Fire Service, and the Rt Hon Jeremy Wright QC MP, the Attorney General. The transcript of these sessions can be found here, and a short summary is included below.

During the first session with Minister for Policing and the Fire Service:

  • Hurd said that he had detected a change in approach from the police leadership regarding disclosure. He supported the call for key performance indicators and called for scrutiny to ensure that changes were happening across the whole disclosure system.

  • Hurd noted that training was being improved for new officers and that it was recognised as a failing. It was revealed that only 6,000 officers out of 123,000 had received the new discourse training, and concerns were raised that the training was not mandatory.

  • Hurd said that Police and Crime Commissioners were vital to the progress of the national improvement plan, and that his personal primary role in improving disclosure was around resourcing, scrutiny, accountability and new legislation.

  • Concerns were raised regarding failures to provide full schedules for disclosure, and Hurd said that the police often don’t see schedules as fundamental to justice but rather see it as a bureaucratic barrier.

During the second session with the Attorney General:

  • Wright acknowledged that issues around disclosure were long-standing. He said that the issues of culture and around the volume of material are the main problems which need to be dealt with.

  • He emphasised that progress was being made and that the National Improvement Plan was a positive.

  • Wright revealed that disclosure failings were not properly represented in Crown Prosecution Service (CPS) data, and that he had presented the CPS with recommendations to improve the visibility of the extent of the issue.

  • Wright said that the UK was behind the curve in how it deals with digital evidence and that additional investment may be needed.

This session follows a meeting of the Committee on 5 June where evidence was heard from Nick Ephgrave, Chief Constable, National Police Chiefs’ Council, and Mike Cunningham, the Chief Executive of the College of Policing, followed by Alison Saunders, the Director of Public Prosecutions, at the Crown Prosecution Service.

Thursday 14 June

House of Commons

Exiting the EU Oral Questions

Exiting the EU Oral Questions took place last Thursday in the Commons. Issues raised in the session included:

  • Charter of Fundamental Rights: The SNP’s Justice and Home Affairs spokesperson Joanna Cherry QC MP asked what steps the Government were taking to prevent the weakening of human rights protections following the loss of the EU Charter of Fundamental Rights. Brexit Minister Steve Baker MP said the Charter was only one element of the UK’s human rights architecture, and that most of the rights protected in the Charter are also protected in domestic law by common law, the Human Rights Act 1998 or other domestic legislation.

  • Trade in services: Asked by Labour MP Pat McFadden to confirm if it is Government policy to ensure there were no new impediments to trade for the UK’s world-leading service industries, such as financial services, education and the creative industries. DExEU Minister Suella Braverman MP said recent statistics showed an increase in confidence in various sectors like retail, services, manufacturing and construction. Ms Braverman added that the Government were committed to reducing barriers to trade to enable businesses, exporters, manufacturers and the service sector to thrive outside the European Union.

  • Customs: Responding to questions from Labour MPs on Cabinet discussions on the future customs arrangements, Brexit Minister Robin Walker MP said the Prime Minister had been clear they were working towards a customs solution that keeps trade with the EU as frictionless as possible, avoids a hard border in Ireland, and establishes an independent trade policy. Walker added the two working groups in Cabinet were meeting regularly to examine both of the options on customs, and that the Government would give a statement to Parliament by the end of October on the steps taken to negotiate a customs arrangement with the EU.

  • Backstop: Labour’s Shadow Brexit Minister Matthew Pennycook MP asked about the Government’s position on accepting a customs backstop with no time limit. Walker said the Prime Minister had been clear that the backstop arrangements would be time-limited.

  • Regulatory alignment: Following up, Pennycook asked if the Government would be making the case for full regulatory alignment on goods in future discussions with the EU given a solution to the Irish border requires this. Walker said the joint report made clear that the UK and EU were talking about alignment in the areas necessary for the functioning of the border and ensuring that there is no hard border. Walker added that did not mean full regulatory alignment across all areas, but specific areas relating to agriculture and industrial goods that could otherwise result in tax at the border.

  • Negotiations: Asked by Conservative MPs for an update on recent progress made in negotiations, Secretary of State David Davis MP said:

- The UK had reached agreement on over three quarters of the legal text of the withdrawal agreement, locking down full chapters on citizens’ rights, the implementation period and the financial settlement.
- Technical talks were continuing and focusing on negotiating the right future relationship – with detailed discussions on future economic and future security partnerships.
- He had met recently with Michel Barnier, discussing the ‘Northern Ireland protocol,’ product standards and market access.

  • Parliament’s role in process: Asked by Labour’s Shadow Brexit Secretary Sir Keir Starmer QC MP on the extent of Parliament’s involvement in the negotiations this autumn, Davis said any proposals in the EU (Withdrawal) Bill had to meet three criteria: first, that the referendum result wasn’t overturned; secondly, that the ongoing negotiation with the European Union wasn’t undermined; and thirdly, that the constitutional structure that has served this country well for hundreds of years does not change, under which the Government negotiates and Parliament passes its view at the end of the process.

- Asked by Conservative MP Matt Warman if a national parliament had ever successfully negotiated in the place of the executive, Davis said the Government could not accept amendments that allow Parliament to instruct the Government on what steps it should take in international negotiation because it would be constitutionally unprecedented.

  • EEA: Asked by Conservative MP Steve Double asked if he would resist calls for the UK to join the EEA and continue freedom of movement, Davis said he would and that both the Labour and Conservative parties said clearly they would not accept the four freedoms of the single market. Davis added that the Government’s proposals were designed to deliver the best access to the European market, consistent with taking back control of laws and borders.

  • No deal preparations: Steve Baker told the Commons that the Exiting the EU Department continued to implement plans for all scenarios, adding that some delivery has already become evident. Pressed further by former DExEU Minister David Jones MP, Baker said the Department would continue to engage with business to reduce uncertainty and that their preparations for no deal – an unwanted contingency – would be increasingly visible to the country over the coming weeks and months.

  • Europol and EAW: Labour MP David Hanson asked whether the UK would still be members of Europol and the European Arrest Warrant (EAW) this time next year. Steve Baker declined to answer, instead saying the Government would be bringing forward and publishing our plans for the future relationship in due course.

  • International business engagement: Asked by Conservative MP Peter Aldous what DExEU were doing to ensure the Government engaged with the international business community during the Brexit process, Suella Braverman said her ministerial team had made 27 trips to EU member states this year, and were being supported by the business engagement of UK embassies.

House of Lords

Debate on immigration and the hostile environment

On Thursday the House of Lords held a debate on the impact of the Government’s 'hostile environment' approach towards illegal immigration on those with residency and employment rights.

The full transcript can be found here. A summary is included below:

  • Baroness Hamwee (Liberal Democrat) raised the issue of a blanket ban on asylum seekers accessing education. Baroness Hamwee said she has been told by solicitors that they are still seeing asylum seekers being restricted from studying. This was despite assurance she had been given by the Home Office. In response, the Home Office Minister of State, Baroness Williams Of Trafford said the Home Office is performing a check to ensure that no one is having study restrictions placed on them inappropriately.

  • Lord Taverne (Liberal Democrat) highlighted the high burden of proof that lay on immigrants to prove their innocence, while highlighting that they are unable to access legal aid. He called the fact that immigrants could not access legal a great betrayal of the UK’s traditional respect for justice and the rule of law.

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