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Westminster weekly update: Government loses on Withdrawal Agreement but wins confidence vote

21 January 2019

On Tuesday the government's Brexit withdrawal agreement was rejected in Parliament by a margin of 230 votes - the largest defeat ever suffered by a sitting government.


The defeat means that the government has three days to set out its proposed next steps before the prime minister makes a statement in the Chamber on Monday 21. She has indicated that she will use this time to reach out to senior parliamentarians across the House to identify a way forward.

Immediately following the withdrawal agreement division the Leader of the Opposition tabled a motion of no confidence, which was defeated on Wednesday evening by a margin of 19 votes. Without the support of the DUP, the government's confidence-and-supply partners, they would have narrowly lost the vote. The prime minister has since met with the senior leadership of the SNP, the Liberal Democrats, and Plaid Cymru, but the Leader of the Opposition has made it clear he will not negotiate with her unless she rules out the option of a no-deal Brexit, which she has not done.

The Law Society has published guidance on a no-deal Brexit scenario in four areas: providing legal services, civil judicial co-operation, family law and data protection. It was announced yesterday that the next vote on the prime minister's Brexit deal will take place on Tuesday 29 January.

Beyond Brexit, Martyn Day of Leigh Day was questioned in a session of the Defence Select Committee on Tuesday 8 January regarding the firm's role in pursuing civil claims on behalf of Iraqi civilians against members of the British armed forces. The Justice Select Committee published the government's response to its report on criminal legal aid, and announced a new inquiry into the court reform programme.

The Counter-Terrorism Bill was passed at Third Reading in the House of Lords on Tuesday, and will now return to the Commons for consideration of the Lords' amendments. The Mental Capacity (Amendment) Bill was considered by the Public Bill Committee in the House of Commons on Tuesday and Thursday - the Law Society's concerns were raised a number of times during the debate.

This week in Parliament

Monday 21 January

House of Commons

  • Statement from the prime minister on alternative Brexit proposals

Tuesday 22 January

House of Commons

  • Consideration of Lords Amendments - Counter-Terrorism and Border Security Bill
  • Business, Energy and Industrial Strategy oral evidence session on Corporate Governance, with Kelly Tolhurst MP, Minister for Small Business, Consumers and Corporate Responsibility
  • Public Bill Committee - Mental Capacity (Amendment) Bill
  • Eighth Delegated Legislation Committee - Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

House of Lords

  • EU Justice Sub-Committee oral evidence session on Brexit: Citizens Rights, with Rt Hon Sajid Javid MP, Home Secretary

Wednesday 23 January

House of Commons

  • Consideration of Lords amendments - Tenant Fees Bill
  • Justice oral evidence session, with Geoffrey Cox MP, Attorney General
  • Women and Equalities oral evidence session on the use of non-disclosure agreements in discrimination cases, with Kiran Daurka, Discrimination Law Association and Partner, Leigh Day

House of Lords

  • European Union Committee oral evidence session on scrutiny of Brexit negotiations, with Stephen Barclay MP, Secretary for Exiting the European Union
  • Orders and regulations - Money Laundering and Transfer of Funds (Information) (Amendment) (EU Exit) Regulations 2018

Thursday 24 January

House of Commons

  • Exiting the European Union oral questions
  • Public Bill Committee - Mental Capacity (Amendment) Bill

House of Lords

  • Brexit negotiations oral questions - Lord Pearson of Rannoch

Last fortnight in Parliament

Tuesday 8 January

House of Commons

Defence Select Committee oral evidence session on the statute of limitations - veterans protection

On Tuesday Martyn Day, senior partner at Leigh Day, gave evidence to the Defence Select Committee. He was questioned about Leigh Day's role in civil claims by Iraqi citizens against British armed forces members.

Read the full transcript of the Defence Select Committee oral evidence session (PDF). Below is a summary of the main points from the session.

  • Phil Wilson MP (Lab; Sedgefield) asked if investigations are pursued from too narrow a perspective. Day affirmed this, and said that in the case of the Defence Committee '[he] would certainly say that,' expressing surprise that more 'victims' were not heard.

  • In response to the Chair, Julian Lewis MP (Con; New Forest East), Day said that one of the greatest issues with the current system is that the Royal Military Police must be seen to be impartial, and that in Iraq it has failed to be transparent, independent, and detailed in its investigations.

  • Mark Francois MP asked a series of questions about Leigh Day's profits as a firm including what percentage of said profits came from legal aid, how many partners had served in the armed forces, and whether Day and the firm had signed up to the corporate covenant. Day refused to disclose the firm's profits.

  • Johnny Mercer MP revisited Francois' questions on Leigh Day's profits, asking how much money had been made from fees and claims relating to Iraq. Day disclosed the latest figure (from late 2018), putting it at around £11 million.

Wednesday 9 January

House of Commons

Brexit developments ahead of Withdrawal Agreement vote debate

The five days of debate leading up to the meaningful vote on Theresa May's Brexit deal on 15 January 2019 began on Wednesday 9 January. Ahead the debate there were several developments.

Commons approves Grieve Amendment

  • On Wednesday morning Commons Speaker John Bercow accepted a vote on a cross-party amendment to the Brexit debate business motion, calling for an alternative plan from the government within three days if next week's vote is lost.

  • The move, which was supported by former Attorney General Dominic Grieve and other leading Conservative remainers, was designed to compel the government to present its next steps within three days rather than the 21 days, plus seven sitting days, required in legislation before MPs get the chance to vote again.

  • The vote was eventually passed by 308 votes to 297, defeating the government.

Northern Ireland Backstop

  • Ahead of the debate, the government announced several commitments in relation to the DUP's position on the Northern Ireland 'backstop'(PDF), including a Stormont 'lock' which provides a legal guarantee that no new areas of legislation can apply to Northern Ireland without first seeking the consent of the Northern Ireland Assembly.

  • The proposals include giving the Northern Ireland Assembly a 'strong role' before the backstop would come into effect, approving any new single market regulations introduced by the EU, and ensuring no divergence in rules between Northern Ireland and the rest of the UK.

Ten-minute rule bill on the European Convention on Human Rights and the armed forces

On Wednesday Leo Docherty MP (Conservative) proposed a Bill under the ten-minute rule procedure: the Armed Forces (Derogation from European Convention on Human Rights) Bill.

The Bill would require the government to derogate from the European Convention on Human Rights in its application to the conduct of members of the armed forces participating in combat operations overseas.

Read the full transcript of the debate. Introducing the Bill, Leo Docherty MP said:

  • He is introducing it to 'ensure that our armed forces are protected from legal pursuit and that the resolve and capability of our armed forces to deliver hard fighting power when needed around the world is undiminished.'

  • He argued that the legal pursuit of our soldiers and veterans is a 'particularly painful chapter in our country's history and must be urgently resolved.'

  • He highlighted the example of a constituent who had been subject to legal proceedings following service in the army in Afghanistan.

  • He noted that 'it has been the case for generations that the law of armed conflict and the Geneva conventions have governed warfare in the modern age carried out by our soldiers. That was the case up until 1998 and the unintended consequences of the Human Rights Act and the European convention on human rights, which has led to a catalogue of injustice involving hundreds of soldiers from all operational theatres.'

  • He commended the work of Johnny Mercer MP (Conservative) in tackling 'headlong the outrageous scandal of the Iraq Historic Allegations Team.'

  • He argued that 'we must bring an end to the entanglement of our armed forces in human rights law.' He said that 'our armed forces need to know that they can deploy and fight on our behalf while adhering to the Geneva conventions and the law of armed conflict.'

The Bill was successfully read for the first time and will be listed for debate at Second Reading on Friday 8 March 2019. However, it will be listed behind a large number of other Bills and is unlikely to progress further.

Thursday 10 January

House of Lords

Lords oral question on human rights in China

On Thursday there was an oral question in the House of Lords on human rights in China. Read the full session on human rights in China. A summary is provided below.

Lord Alton of Liverpool (Crossbencher) asked about violation of human rights in China, including on the arrest and disappearance of political activists and religious adherents, forced organ harvesting and restrictions on free speech. He argued that at 'the heart of the deterioration of human rights in China has been the imprisonment, interrogation and, in some cases torture of some 300 human rights lawyers and activists and their families.' He called on the government to do more to raise levels of support 'for these courageous lawyers and civil society groups, who do not want China to regress'.

In response, the Minister of State at the Foreign and Commonwealth Office, Lord Ahmad of Wimbledon (Conservative) responded by saying that the government are deeply concerned about restrictions to civil and political freedoms in China. They highlighted these concerns publicly during China's universal periodic review in November 2018. He noted that during 2018 the UK raised human rights bilaterally with China on a number of occasions. He commended the efforts of Lord Alton of Liverpool in consistently raising these issues and standing up for the different communities being targeted. He noted that Sir Geoffrey Nice is conducting a review on organ harvesting.

Later in the session, Lord Dholakia (Liberal Democrat) noted research conducted by Amnesty International on executions in China and raised concerns regarding the legal recognition of human rights, the lack of independence of the judiciary, and the lack of rule of law and due process. Responding, the Minister of State at the Foreign and Commonwealth Office, Lord Ahmad of Wimbledon (Conservative) restated that the government are raising these objections both in public and in private bilateral meetings.

Friday 11 January

House of Commons

Government response to the Justice Committee's report on criminal legal aid

This morning the Justice Select Committee published the government's response to its inquiry on criminal legal aid. Read the government's response (PDF). A summary is provided below.

The Select Committee published its report (PDF) in July 2018, and the Law Society gave oral evidence to the Committee (PDF) as part of its inquiry back in May 2018.

In the government's response, it welcomes the report by the Committee and notes that criminal legal aid is a vital part of our justice system. It responds directly to the Committee's recommendations, which are summarised in the table below.

Committee recommendation Government response
We recommend that the Ministry of Justice take urgent steps to avoid this dispute [Law Society Judicial Review] having to be resolved by the courts. Whatever the outcome of the judicial review, we consider there should be a wider review of criminal legal aid. Since the Report was published, the litigation over changes made to the Litigators' Graduated Fees Scheme (LGFS) in December 2017 has concluded. The Law Society's claim was successful and, as a result, the amending regulations were quashed. The government decided not to seek permission to appeal the ruling of the Divisional Court. As a result, the LGFS has reverted to the scheme that was in place prior to the December 2017 amendment, i.e. the PPE threshold has returned to 10,000. The question of a wider review of criminal legal aid is addressed below.
To provide for ongoing collaboration with the legal profession on refinements to the AGFS, we recommend that, without any further delay, a system of annual review be built into the AGFS, overseen by a panel which incorporates representatives from the Criminal Bar and solicitor organisations, alongside government representatives. The panel's remit should include considering the inter-dependency between the AGFS and the LGFS, and the impact of changing the former on the operation of the latter.

We recommend that the output from this workstream [LASPO post-implementation review] be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.
The government agrees that a wider review of all criminal fee schemes is appropriate.
We have also previously signalled a desire to reform LGFS more fundamentally. In both LGFS and AGFS we believe that PPE as a proxy for complexity is outdated and is no longer a useful indicator of 'work done'. In part this is because digital developments in recent years can produce large volumes of data, such as computer and mobile phone hard drives, that are fundamentally different from traditional evidence. This was clearly set out in a ruling by His Honour Judge Peter Collier QC, the Honorary Recorder of Leeds, (R-v- MA) on 18 April 2018, where he said:

'…the courts need to understand the nature of digital evidence. This is not just evidence served electronically, this is a different animal, it is digital material that has come into being in any number of different ways and now exists in all manner of different places including the clouds. As such it is real evidence, not hearsay evidence, although it might possibly contain some hearsay evidence.

Then the court also needs to understand how that evidence is dealt with by practitioners. In some instances they need to obtain expert help, particularly if there is to be any challenge to the integrity of the evidence itself. For the most part the digital material will be provided in a searchable and analysable format. When it is, then the analysis that is usually carried out, particularly in order to examine context or to see if it can be viewed in a different pattern, is work that can be quickly and easily carried out with a few clicks on a computer screen.'

We now intend to launch a broad review of all criminal legal aid fee schemes, starting in January 2019. In light of the Committee's recommendations on criminal legal aid and disclosure in criminal cases, the Attorney General's review of disclosure, and broader changes across the criminal justice system, we believe it is the time to think more widely about the future of criminal legal aid. The first phase of this review will be a scoping phase to determine the scope and remit of the review. We are also mindful of broader changes across the justice sector including modernisation work being undertaken by the Home Office, policing (including Police and Crime Commissioners), the Crown Prosecution Service and Her Majesty's Courts and Tribunals Service (HMCTS). This comprehensive review of criminal legal aid fee schemes would seek to deliver a final report, including any recommendations, towards the end of the Summer in 2020. Alongside this, we would seek to share emerging findings with the professions throughout the review process. It is important to highlight that the ability to deliver against these dates would be dependent on the legal professions working with us to gather, build, provide and share qualitative and quantitative evidence, which must go far beyond the billing data we currently use.
We recommend that the government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review. As a Spending Review approaches the Ministry of Justice is working with partners such as the Attorney General's Office, the Crown Prosecution Service and the Home Office to understand how the whole criminal justice system is performing. This work is already underway and will inform the government's plans to maintain and improve the world-class justice system of England and Wales.

The Lord Chancellor has a duty to uphold the rule of law and to ensure the provision of resources for the efficient and effective support of the courts. This is a duty that the Lord Chancellor and the government takes extremely seriously. In terms of access to justice, the government is committed to reviewing the delivery of criminal legal aid through a review of the fee schemes, as set out above. To ensure the efficient and effective support of the courts, Her Majesty's Courts and Tribunals Service is investing £1bn in modernising the courts system.
We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above. The government agrees that our review of criminal legal aid fee schemes should include consideration of the question of remuneration for dealing with unused material.
In addition, the Attorney General has conducted a 'review of the efficiency and effectiveness of disclosure in the criminal justice system' (CM 9735). The review noted that 'as a consequence of an emphasis on earlier work on disclosure, it follows that the structure of fees and timing of payments will have to be adjusted. Further data would need to be gathered to understand how best to do this'. The review also recommended 'that the Criminal Justice Board commissions a working group to lead the examination of this aspect of its conclusions and feed any relevant findings into the Ministry of Justice's review of the Advocates' Graduated Fee Scheme (AGFS) in Spring/Summer 2020, as well as the continuing work to redesign the Litigators' Graduated Fee Scheme. This should include consideration of whether changing some of the structure and timing of legal aid payments would facilitate earlier and more effective defence engagement.'

The Ministry of Justice will take part in the CJB working group to take forward the Attorney General's recommendation.

Monday 14 January

House of Lords

Debate on Withdrawal Agreement

Two linked motions, for which the debate started Thursday 10 January, both passed on Monday 14 January. The first, put forward by Lord Callanan, a minister in DExEU, passed without a division, and proposed that the House takes note of the negotiated withdrawal agreement and framework for the future relationship with the EU.

The second motion, put forward by Lords Leader of the Opposition Baroness Smith of Basildon, noted the House of Commons' legislative superiority, but stated that the House of Lords rejects a no-deal outcome to negotiations with the EU. It also regretted that the withdrawal agreement would do damage to the UK's economic prospects, internal security, and worldwide influence. This went to a vote, and was agreed, with 321 for and 153 against.

While this does not stop the Lords taking note of the agreement, as in Lord Callanan's motion, and therefore fulfils an EU (Withdrawal) Act obligation, it does ensure that the opinion of the Lords is on record.

Of note within the debate was Lord Goldsmith's (Labour) discussion of the Lugano Convention and the absence of provision regarding legal services in the withdrawal agreement. A previous Attorney General and practising barrister, he briefly stated that in his view the Lugano convention was not on its own a solution to the issues with area of enforcement and recognition of judgement. He finished his contribution by saying that 'the arrangements that there are in relation to legal services in future are far from satisfactory.'

Tuesday 15 January

House of Commons

Conclusion of the debate on the Withdrawal Agreement and the meaningful vote

The government lost its vote on the withdrawal agreement motion by 230 votes. This included 118 Conservative MPs.

Following the loss, the prime minister said that the government would give time for a no confidence tomorrow if the opposition were to call for one.

Labour Leader Jeremy Corbyn MP went on to call no confidence in the government, the vote for which took place on 16 January.

The prime minister also said that should she wins the confidence vote she would bring a new amenable motion on leaving the EU on Monday. This is in line with the amendment passed by the House of Commons and tabled by Dominic Grieve last week. The prime minister said she will engage with senior parliamentarians on the new motion over the coming days.

Mental Capacity (Amendment) Bill Committee Stage (day 1)

Mental Capacity (Amendment) Bill started its Committee Stage and it is expected that it will last four days. The Law Society has proposed several amendments to the Bill and some of these amendments were discussed during day 1 of Committee Stage. The Law Society was mentioned twice during the debate where our concerns on rights to information and the treatment of 16-17-year olds was outlined.

A number of government amendments to the Bill passed, including:

  • A requirement for an Approved Mental Capacity Professional (AMCP) to conduct the pre-authorisation review should arrangements mean that the cared-for person receives care or treatment mainly in an independent hospital.

  • An amendment that clarifies that an AMCP can conduct pre-authorisation reviews in any case, not just where an individual objects to their care and treatment.

  • An amendment which sets out a duty to provide information to the cared for person as soon as practicable. MPs were critical of the amendment as it lowers the safeguards that were introduced by a similar amendment in the House of Lords.

House of Lords

Counter-Terrorism and Border Security Bill Third Reading

The Counter-Terrorism and Border Security Bill was passed by the House of Lords at Third Reading. The Bill will now return to the House of Commons for consideration of the amendments passed in the House of Lords.

There were no interventions during the debate on the issue of legal professional privilege following the passing of amendments at Report Stage, supported by the Law Society, to remove provisions from the Bill that would have allowed officials to listen in to confidential legal consultations between solicitors and their clients. These amendments will need to be agreed by the House of Commons before the Bill becomes law; however given that these amendments were introduced by the government with the support of the main opposition parties it is likely that the Commons will agree to these amendments.

Services of Lawyers and Lawyer's Practice (Revocation etc.) (EU Exit) Regulations 2019

The House of Lords debated a statutory instrument which aimed to revoke a series of directives relevant to lawyers due to the lack of reciprocity in a no deal scenario. It also allows those that have qualified into an English and Welsh profession to retain their qualification and rights as well as providing a transition period to allow registered European lawyers up to 31 December 2020. The Law Society were mentioned four times in the debate.

Justice Minister Lord Keen notes that there are lawyers from many jurisdictions who practise under their foreign lawyer qualification in the United Kingdom. He noted that London is an international legal centre and that this instrument will have no impact at all on those foreign lawyers. It will align the rights of European lawyers with other non-EU lawyers.

Shadow Justice Spokesperson Lord Beecham thanked the Law Society for our briefing and stated our view that the statutory instrument was accepted. However, both Lord Thomas of Gresford (Liberal Democrat) and Lord Beecham (Labour) raised concerns about the loss of UK lawyer rights including rights to provide legal advice in the EU, the right to requalify in hose member states and rights of audience. He quoted our concerns about the impact of a no deal Brexit and moving to World Trade Organisation Rules.

In response the Minister said that professional legal qualifications were raised at a very early stage in the negotiations with the EU. He noted that the EU were not willing to take this forward in the Withdrawal Agreement but it would be discussed in any agreement with the EU.

Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

The House of Lords also detailed a statutory instrument relating to the EU Legal Aid Directive 2003. The Minister noted that the current reciprocal arrangements under this directive would end if the UK leaves the EU without a deal. The SI seeks to mandate that legal aid provision—for matters within the scope of the EU Legal Aid Directive but not otherwise within the scope of legal aid—is not made to individuals domiciled or habitually resident in an EU member state on a unilateral basis where there is no longer reciprocity from the EU member state. The Law Society was mentioned twice in the debate on this instrument.

During the debate Lord Keen confirmed that the UK aims to become a signatory to the relevant Hague Conventions (2005 and 2007) which we are members of through our EU membership. He also noted that the Ministry of Justice have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that.

Wednesday 16 January

House of Commons

Motion of No Confidence in Her Majesty's Government

The government won the confidence motion by 325 to 306 votes meaning all Conservative MPs, the DUP and one Independent MP voted for them. Without the ten votes of the DUP MPs, the government would have lost the vote.

Whilst this keeps the government and prime minister safe, there is no barrier to another confidence motion being called in the coming days or weeks.

Following the statement, the prime minister began talks with leaders of opposition parties in Downing Street. She made a statement outside Number 10 later last night where she said she had already met with the leaders of the Liberal Democrats, SNP, Green Party and Plaid Cymru. She said her door was open to discussions with Labour Leader Jeremy Corbyn MP but he has stated he will not meet until the prime minister takes no deal off the table. She plans to meet with other senior parliamentarians over the next few days.

As outlined on Thursday, the prime minister will bring a new amendable motion on leaving the EU on Monday.

Thursday 17 January

House of Commons

Mental Capacity (Amendment) Bill Committee Stage (day 2)

The Mental Capacity (Amendment) Bill continued its scrutiny in the House of Commons. The Law Society's concerns about the limited situations in which a cared for person has access to an approved mental capacity professional were raised during the committee discussion. A number of the Law Society's proposed amendments on 16-17-year olds were tabled and discussed during day 2 of Committee Stage.

A government amendment to ensure that a person with a connection to a care home cannot conduct the assessments needed for an authorisation or the pre-authorisation review passed in day 2.

The government also committed to looking at how the new Liberty Protection Safeguards would work with someone with fluctuating conditions and consider amendments to ensure they are better protected.

Question or comments? Contact the Public Affairs team at parliamentary@lawsociety.org.uk or 020 7320 5858.

Tags: Theresa May | Westminster weekly update | Brexit

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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