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Westminster weekly update: Government publishes Withdrawal Agreement and Political Declaration

23 November 2018

Last week the Government published the draft Withdrawal Agreement, reflecting the in-principle agreement between the UK and EU negotiating teams on the full legal text.


Last week the government published the draft Withdrawal Agreement (read the Law Society's summary here), reflecting the in-principle agreement between the UK and EU negotiating teams on the full legal text. Following a special European Council meeting this weekend, the government will then lay a final version of the agreement before Parliament.

The government also published an outline of the Political Declaration on the future relationship, setting out progress on the scope of the framework for the future relationship.

Stephen Barclay MP has also been appointed as the new Secretary of State for Exiting the EU, another solicitor in the role following Dominic Raab's resignation.

This week sees a Westminster Hall debate on the provision of legal services after the UK leaves the EU. This debate has been secured by Jonathan Djanogly MP, who co-chairs the All-Party Parliamentary Group (APPG) on Legal and Constitutional Affairs. The Law Society provides the Secretariat for this APPG.

This week there are also several Select Committee sessions in Parliament, including the Justice Committee on the work of the Lord Chief Justice, the Foreign Affairs Committee on Global Britain and India, and the Home Affairs Committee on modern slavery.

Amanda Pinto QC from the Bar Council will appear before a Committee considering the Bribery Act 2010. The Civil Liability Bill [HL] returns to the House of Lords during Ping Pong stage, while the Tenant Fees Bill also reaches Committee Stage in the House of Lords.

Later this week the Homes (Fitness for Human Habitation) Bill will receive its Second Reading in the Lords.

Last week Labour peer Lord Bach asked an oral question in the House of Lords regarding the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

Justice Oral Questions also took place in the Commons, where legal aid fees, Brexit and family court reform was discussed. In addition, the Lords EU Justice Committee also took evidence from Business Minister Sam Gyimah MP on intellectual property and the Unified Patent Court, while Home Office Minister Nick Hurd and his civil servants gave evidence on the government's Brexit preparations to the Home Affairs Committee.

This week in Parliament

Monday 19 November

House of Commons

  • Housing, Communities and Local Government Committee oral evidence session on leasehold reform

House of Lords

  • Oral question - government plans to introduce new domestic abuse legislation

Tuesday 20 November

House of Commons

  • Business, Energy and Industrial Strategy Questions
  • Justice Select Committee evidence session on the work of the Lord Chief Justice
  • Foreign Affairs Select Committee evidence session on Global Britain and India
  • Home Affairs Select Committee oral evidence session on modern slavery

House of Lords

  • Bribery Act 2010 Committee evidence session with Amanda Pinto QC, Bar Council
  • Civil Liability Bill [HL] - Consideration of Commons amendments
  • Tenant Fees Bill - Committee Stage Day 2

Wednesday 21 November

House of Commons

  • Westminster Hall debate on provision of legal services after the UK leaves the EU (Jonathan Djanogly MP)
  • Westminster Hall debate on rape myths and juries (Ann Coffey MP)
  • Exiting the EU Committee evidence session on the progress of the UK's negotiations on EU withdrawal

House of Lords

  • Orders and regulations - Draft Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018
  • Oral question: Talks with the government of Saudi Arabia on human rights in the country (Lord Hoyle)
  • Mental Capacity (Amendment) Bill [HL] Report Stage Day 1

Friday 23 November

House of Lords

  • Homes (Fitness for Human Habitation) Bill - Second Reading

Last fortnight in Parliament

Monday 5 November

House of Commons

Housing, Communities and Local Government Questions

Oral questions to the ministers at the Ministry of Housing, Communities Local Government on Monday 5 November included three questions on the subject of leasehold.

What recent steps he has taken to protect existing leaseholders from high leasehold charges (Liz McInnes MP, Lab; Liz Twist MP, Lab).

  • The Secretary of State for Housing, Communities and Local Government, James Brokenshire MP, outlined his belief that unfair leasehold practices and excessive ground rents have no place in the housing market. He noted that he was meeting developers at a roundtable to make clear that he expects greater support to be provided by the industry to existing leaseholders.

  • He also stated that he had written to the Competition and Markets Authority and the SRA to encourage them to take action over some of the practices involved.

  • He noted that the government is working with the Law Commission on enfranchisement to help bring existing leaseholds to an end.

  • Bob Blackman MP called on the government to look at retrospective legislation to address existing unfair leases.

  • John Healey MP, the Shadow Secretary of State for Housing, called for an independent inquiry, and made mention of the issue of some leaseholders not being able to choose their own conveyancer during the purchase of their lease.

What recent steps he has taken to ensure that changes to existing leaseholds are more (a) accessible and (b) affordable (Chi Onwurah MP, Lab).

  • The Parliamentary Under-Secretary of State for Housing, Communities and Local Government, Heather Wheeler MP, stated that it was right that developers who sold leaseholds with onerous terms should support those leaseholders affected, and that the government was encouraging more industry members to do so.

Fiona Bruce MP (Con) posed a topical question asking the Minister to commit to a timetable for tackling the leasehold issue.

  • Heather Wheeler MP responded by stating that the government has committed to banning the sale of new leasehold houses and restricting ground rents on future leases to peppercorn, and is consulting on these proposals.

  • She stated that the government would bring forward legislation as soon as Parliamentary time allows.

HCLG Committee oral evidence session on leasehold reform

The Housing, Communities and Local Government Select Committee held an oral evidence session on the leasehold reform inquiry (to which the Law Society submitted oral evidence).

The HCLG Committee took oral evidence in two sessions from the following witnesses:

Session 1:

  • Sir Peter Bottomley MP, All-Party Parliamentary Group on Leasehold Reform
  • Jim Fitzpatrick MP, All-Party Parliamentary Group on Leasehold Reform
  • Martin Boyd, Chair of Trustees, Leasehold Knowledge Partnership

Session 2:

  • Jo Darbyshire, National Leasehold Campaign
  • Katie Kendrick, National Leasehold Campaign
  • Shula Rich, Director, Federation of Private Residents' Associations

Among the key points covered during the evidence session were:

General

Clive Betts MP (Lab, Chair of the Committee) asked what proportion of leaseholders were unhappy with the terms of their leases.

  • Martin Boyd cited a recent survey by the Leasehold Knowledge Partnership (LKP) that suggested that 92% of leaseholders regretted their decision to buy a leasehold property, with over half feeling they were not properly informed about the terms of the lease.
  • LKP research estimates that there are 6.7 million leasehold flats and houses in England and Wales, and that at least 100,000 are affected by onerous terms that make the homes difficult to sell.

Bob Blackman MP (Con) asked what constituted an 'onerous' ground rent.

  • Martin Boyd stated that any ground rent that doubles in a period of less than 21 year, or that constitutes more than 0.01% of the value of the value of the lease at any point during the lease, should be considered onerous. He estimated that there were 12,000 10-year doubling ground rents.
  • Sir Peter Bottomley MP said that onerous rents could constitute those that doubled over a period such as 10 years, those that represent a significant amount of money, or those over which the leaseholder has very limited control.

Mary Robinson MP (Con) asked whether ground rents were a big issues on the ability for leaseholders to sell their properties.

  • Katie Kendrick stated that plenty of house sales were falling through as lenders will not offer mortgages on many leasehold properties.
  • She stated that proposals to ban leasehold in newbuilds were exacerbating the problems for sellers, as people are reluctant to buy a class of home that is essentially going extinct.
  • Jo Darbyshire noted the difficulty in defining onerous ground rent terms, as RPI can often be worse than doubling ground rents.
  • Shula Rich noted that surveyors, freeholders and valuers were not telling leaseholders the difference between a statutory lease extension and the more informal route, which was leading to leaseholders being pushed into accepting bad deals.
  • Katie Kendrick said the same situation could be seen for enfranchisement in leasehold flats.

Sufficiency of the government's proposals to reform leasehold

Liz Twist MP (Lab) and Bob Blackman MP asked witnesses whether they were satisfied with the existing proposals to address the issue of leasehold.

  • Sir Peter Bottomley MP stated that the proposals do not solve enough problems, are not accessible enough, and are not cheap enough.
  • Martin Boyd expressed disappointment that the government's proposals did not include any element of retrospection to help existing leaseholders, an excluded some elements from the scope of reform. For example, he expressed disappointment that the proposals do not look at creating a right of first refusal for tenants on the sale of the leasehold in flats.
  • He however stated that there were lots of good elements in the Law Commission's consultation, even if the way the proposals will work is still open to debate.
  • Katie Kendrick noted that the ultimate aim of the National Leasehold Campaign is to abolish leasehold and convert flats to commonhold. The Campaign supports the Law Commission's consultation, but expressed the view that the proposal for enfranchisement at 10% of the value of the lease would be unachievable for most.
  • Jo Darbyshire also spoke positively about the Law Commission's consultation, but voiced concern over the terms of reference which state that the proposals should seek to compensate freeholders for any losses. She claimed it would be impossible to make enfranchisement cheaper without incurring losses for freeholders.
  • She also supported the government's proposals but cautioned that they should not be watered down. For example, she cited the government's move to capping ground rents at £10 rather than peppercorn, which could create legal issues for leaseholders.
  • Shula Rich called for a consolidation act to simplify the law in this area.

Helen Hayes MP (Lab) asked whether the witnesses supported the government's plans to cap ground rents on new leases at £10.

  • Sir Peter Bottomley MP stated that the proposal was based on a misunderstanding of the situation, and that ground rents should be peppercorn only.
  • Martin Boyd also noted the legal implications of moving away from a peppercorn to a nominal monetary value.

Helen Hayes MP, Tanmanjeet Singh Dhesi MP (Lab) and Mary Robinson MP asked what more the government should do to address the situation for existing leaseholders.

  • Sir Peter Bottomley MP claimed that if the government were to give people a right to buy or right to enfranchise they could set out the terms in a way that avoids retrospection.
  • Jo Darbyshire claimed that the government should look at whether there were any connections between the investment companies that bought freeholds and the senior executives and management of development companies that sold them. She also called for an inquiry into the scandal and the creation of a redress scheme similar to that created for victims of the PPI scandal.
  • Shula Rich also stated that developers should not be allowed to market leasehold as a form of ownership, given that it is closer to being a tenant.
  • Katie Kendrick noted that the enfranchisement option was often too expensive for many leaseholders. She stated that she supported Justin Madders MP's Leasehold Reform private members bill, which would cap enfranchisement costs at 10 times ground rent.
  • Jo Darbyshire noted a number of issues that would not be addressed by the Law Commission's work, including the unattainable cost of enfranchisement; the need for 50% of support in a block of flats for collective enfranchisement; and the inability of leaseholders in blocks of flats in which more than 25% of the properties are commercial to enfranchise.
  • Katie Kendrick, Jo Darbyshire and Shula Rich all expressed the view that leaseholders should have the right to compensation.

Liz Twist MP (Lab) and Bob Blackman MP asked specifically what could be done to support leaseholders who cannot afford to enfranchise.

  • Sir Peter Bottomley MP stated that a simple way would be to say that all leases can be extended for a set period, allowing leaseholders to reset their ground rents to zero.
  • Martin Boyd spoke positively about the Law Commission's proposal to introduce a right to manage in estates.
  • Jo Darbyshire repeated her call for an independent inquiry and redress scheme.

Liz Twist MP asked whether leasehold should be abolished.

  • Sir Peter Bottomley MP stated that developers should use commonhold for flats, but for existing leaseholders the issue is ending the costs and abuses they face, which would not be solved by abolishing leasehold.

Role of solicitors

Kevin Hollinrake MP (Con) asked whether anyone had taken a claim against either a solicitor or a surveyor.

  • Martin Boyd stated that some had, but they subsequently become subject to NDAs meaning that little information is available. He noted that many leaseholders cannot afford to instruct a solicitor to take forward a claim.
  • Jo Darbyshire stated that she had looked into taking forward a claim, but highlighted issues with proving material loss and causation, the fact that claims are time barred at six years, and that instructing a solicitor is expensive.

Matt Western MP (Lab) asked whether the use of panel solicitors provided by developers was commonplace.

  • Katie Kendrick stated it was, and that many leaseholders were offered discounts or other perks to use these panel conveyancers.

Tuesday 6 November

House of Commons

Justice Select Committee hears from Ministry of Justice Permanent Secretary

The Justice Select Committee heard oral evidence from the Permanent Secretary of the Ministry of Justice (MoJ), Richard Heaton, who gave evidence alongside Mike Driver, the Chief Financial Officer at the Ministry of Justice.

The subject of the evidence was the Ministry of Justice Annual Report and Accounts 2017-18, and covered a wide range of topics, from prisons to employment tribunal fees.

The session can be watched here, and a brief summary of what was discussed is included below:

  • Ministry's finances and the budget - The Permanent Secretary noted that the Ministry's budget continues to be under strain, which has led to difficult decisions being made. The Ministry continue to discuss with Treasury their budget. Following questions on what areas they would like more funding for, the Chief Financial Officer noted that legal aid funding was a key area. It was also noted that the Autumn Budget included a £300m reduction in the DEL (Departmental Expenditure Limit) for the MoJ in 2019/20.

  • Brexit - The Permanent Secretary said that the money they have received from the Treasury has meant that the Department is confident that they have the capacity to deal with any issues arising from Brexit. He said going forward the department may require different skills as they may be required to negotiate with other nations. The Department continues to support its work as part of the Global Britain programme.

  • Employment tribunal fees - Following questions on whether the MoJ would look to reintroduce fees for employment tribunal claims, the Permanent Secretary said that although nothing is set in stone the MoJ believe they can create a fee system that will ensure access to justice. He said there are no immediate plans to reintroduce a fee scheme.

  • Probate fees - The Permanent Secretary confirmed that they are bringing in a new probate fees scheme, and argued that the scheme is proportionate, progressive and within their powers. The scheme will be reviewed.

  • LASPO Review - The Permanent Secretary said that he expects the LASPO Review to conclude by the end of the year in line with the expected timescales.

  • Courts maintenance - The Permanent Secretary said that the poor court maintenance is impacting on court staff morale and judicial morale.

Monday 12 November

House of Lords

Oral questions on LASPO review

Lord Bach (Labour) asked an oral question in the House of Lords regarding the post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO).

The transcript of the question can be read here, and a brief summary is included below:

  • Lord Bach (Labour) noted that he had met with Justice Minister Lucy Frazer MP alongside members of the Bach Commission. He argued that there is a broad consensus 'among senior judges, practising lawyers, parliamentarians of all colours and none and many others that Part 1 of LASPO was a serious mistake that has led to many of our fellow citizens being deprived of access to justice.'
    • Responding for the government, Lord Keen of Elie (Conservative) confirmed that the government remain committed to publishing the review by the end of the year. He noted that during the evidence-gathering phase of the review they engaged with more than 70 organisations. He said the government are conscious of the importance of access to justice.
     
  • Viscount Hailsham (Conservative) [a non-practising criminal barrister] argued that there is a 'real sense of crisis in the criminal Bar' and said that unless the government urgently and fully address the anxieties expressed by the Criminal Bar Association and others, there is a real danger that the independent criminal Bar will cease to exist.
    • Lord Keen of Elie responded by noting the government's 'highest regard' for the criminal Bar and that the government is keen to ensure that it is a sustained in a suitable way.
     
  • Lord Marks of Henley-on-Thames (Liberal Democrat) asked whether the government will be able to boost the resources for legal aid following the government's review.
    • Lord Keen of Elie responded by saying that he is not going to anticipate the outcome of the review.
     
  • Lord Howarth of Newport (Labour) argued that 'justice delayed is justice denied', and that following the Chancellor's budget statement, 'we are looking at the prospect of justice indefinitely denied, with further real-term cuts to the already ravaged budget of the Ministry of Justice', courts and legal aid.
    • Lord Keen of Elie said that we face economic challenges and said that the government had to pick up the pieces of the economy left by the last Labour government.
     
  • Baroness Deech (Crossbencher) raised concerns about the number of litigants-in-person in the family courts and the impact on court time, on the sustainability of the bar.
    • Lord Keen of Elie argued that there are challenges facing those who seek to deliver legal services in our country today. He said that the government are reviewing LASPO, but that in the context of matrimonial matters, the government have introduced a digital portal for undefended divorces which has been a success.
     
  • Lord Faulks (Conservative) raised concerns about third-party funding and investment in litigation, arguing that 'it distorts the whole business of litigation.' He asked whether this is to be considered as part of the LASPO review.
    • Lord Keen of Elie responded by saying that 'third-party funding has now become well established and makes a contribution to the delivery of legal services in this country, but it is a matter that is the subject of consideration as we go forward.'
     

Tuesday 13 November

House of Commons

Justice Oral Questions

Justice oral questions took place in the House of Commons. The full transcript can be read here, and a summary is included below:

Access to legal aid

  • Ruth Cadbury MP (Labour) asked about trends in the number of people able to access legal aid and noted that expenditure on early legal aid advice saves money in the future for government. Responding, Justice Minister Lucy Frazer QC MP said that the government spends £1.6 billion on legal aid and is reviewing the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). She said as part of the LASPO review they are look at matters relating to the downstream impacts of the lack of legal help at an early stage.

  • Alex Chalk MP (Conservative) commended the work of Citizens Advice bureaux across the country. Justice Minister Lucy Frazer QC MP joined him in praising their work.

  • Thangam Debbonaire MP (Labour) urged the government to provide asylum seekers with the highest-quality legal advice through legal aid at the earliest stage. Responding, Justice Minister Lucy Frazer QC MP said that the government spends about £100 million on early advice every year. She said legal aid is available for asylum work.

  • Chris Green MP (Conservative) spoke about the LASPO review and asked whether the Labour Party had made representations. Responding, Justice Minister Lucy Frazer QC MP said that they had not.

  • Stuart C. McDonald MP (SNP) asked whether the government would restore legal aid in England and Wales for family reunion for refugees' cases. Responding, Justice Minister Lucy Frazer QC MP said that it is an important issue and that the government is currently reviewing legal aid.

  • Shadow Lord Chancellor Richard Burgon MP criticised the 'shameful situation' of cuts to legal advice for sick and disabled people in welfare cases. He said that legal advice for welfare benefits cases has been cut by 99%. Responding, Justice Minister Lucy Frazer QC MP said that the government spends £100 million on early legal help, and that the government is reviewing legal aid.

Criminal legal aid fees

  • Rachael Maskell MP (Labour/Co-operative) asked about changes to criminal legal aid fees for barristers and called for an early review of the new advocates' graduated fees scheme (AGFS). Responding, Justice Minister Lucy Frazer QC MP said that the government has just closed a consultation on increasing fees in the AGFS. She says she takes seriously the concerns of the Bar and has recently met with leaders of the Bar Council and the Criminal Bar Association.

Brexit

  • Marion Fellows MP (SNP), Martyn Day MP (SNP) and Gavin Newlands MP (SNP) asked about the effect of Brexit on the justice system and the European Arrest Warrant. Responding, Justice Minister Lucy Frazer QC MP said that the government has set out its ambitions for Brexit and justice and that they want the closest possible co-operation in criminal, civil and family justice matters. She said it is in the interests of the UK and the EU to ensure that we have as good as possible a mutual arrangement in relation to these matters.

  • Hannah Bardell MP (SNP) spoke about the need for Scotland's separate legal and judicial system to be taken into account in the Brexit negotiations. She called for a guarantee that Scotland's independence would be protected post-Brexit. Responding, Justice Minister Lucy Frazer QC MP said that they have worked closely with the Scottish government on these points.

  • Victoria Prentis MP (Conservative) asked what steps the government is taking to ensure that our legal system continues to be respected throughout the world post-Brexit. Responding, Justice Minister Lucy Frazer QC MP said that the Ministry of Justice are supporting, through the Legal Services are GREAT campaign, the continued work and co-operation of legal services abroad. She noted that they have recently been to Kazakhstan and to Nigeria.

  • Matt Warman MP (Conservative) asked about no deal preparations for the justice system. Responding, Justice Minister Lucy Frazer QC MP said that they are ensuring that preparations are in place, including publishing two technical notices, putting together statutory instruments to pass in case of a no deal Brexit, and they have received funding from the treasury for no deal preparations.

  • Sir Edward Davey MP (Liberal Democrat) asked about warnings that in leaving the EU the UK will lose our leadership role in Europol and Eurojust. Responding, Justice Minister Lucy Frazer QC MP said that the sharing of data in these areas is important not just to us but the EU. The Home Office are leading the work in these matters.

  • SNP Justice spokesperson Joanna Cherry MP asked about assurances that the government would not undermine Scotland's independence. She referred to a case to be heard in the Supreme Court on the revocability of Article 50. Responding, Justice Minister Lucy Frazer QC MP said that she is working with the Scottish government and that the government are committed both to the union and to respecting the distinct Scottish legal system.

Family court reform

  • Sir Desmond Swayne MP (Conservative) asked about progress of family court reform and whether if clearer advice was available on the family court process then fewer people would decide to litigate. Responding, Justice Minister Lucy Frazer QC MP said that the government is making the family courts less antagonistic and the process more straightforward. She noted the progress making clearer the divorce and child arrangement applications process. She said that the government are committed to giving 'the family court the power to prohibit abusers from cross-examining their victims.' She has been speaking with the president of the family division, as well as with other organisations regarding clearer advice.

  • Stephanie Peacock MP (Labour) asked when the government will bring forward legislation to ban perpetrators from cross-examining victims of domestic abuse in family courts. Responding, Justice Minister Lucy Frazer QC MP said that it will be introduced as soon as legislation and the parliamentary timetable allow.

  • Andrew Selous MP (Conservative) and Jim Shannon MP (DUP) asked about the consultation on divorce law reform and strengthening families, and on fathers' rights. Responding, Justice Minister Lucy Frazer QC MP said that the Ministry of Justice is committed to the institution of marriage and recognise the value that it brings. The consultation on divorce law is about making the process easier. She said that all parents' rights are important, both the mother and father.

  • Shadow Minister Gloria de Piero MP (Labour) noted concerns about the experiences of victims of domestic abuse, and called on the government to change the law to stop those who attempt to murder their spouse reaping any financial benefit. Responding, Justice Minister Lucy Frazer QC MP said that domestic violence is a huge issue which the government is taking steps to help address.

  • Nic Dakin MP (Labour) asked about the effect of closures of family and magistrates courts, particularly closures in his constituency of Scunthorpe. Responding, Justice Minister Lucy Frazer QC MP said that there is public consultation whenever a court is closed. She said that in 2016/17 courts and tribunals were using less than half their capacity, and that sales of courts would be reinvested into our courts service.

  • Shadow Minister Yasmin Qureshi MP (Labour) asked about cuts to court staff and the impact of those cuts. Responding, Justice Minister Lucy Frazer QC MP said that the government is investing £1 billion in reforming and modernising the courts and tribunals system.

Access to justice: persons with disabilities

  • Debbie Abrahams MP (Labour) asked about the Ministry of Justice's compliance with article 13 of the UN convention on the rights of persons with disabilities on access to justice. Responding, Lord Chancellor David Gauke MP said that the government remain fully committed to the convention and the government assess the UK's implementation of the convention as part of it's reporting service to the UN. To improve access to justice for people with disabilities, he noted that the government is investing £1 billion in reforming and modernising the Courts and Tribunals Service.

Topical questions

  • Domestic abuse - Karen Lee MP (Labour) asked about a case in which a constituent is suffering economic domestic abuse from an ex-partner but cannot afford legal representation or access legal aid. Responding, Lord Chancellor David Gauke MP said that the government is currently looking at this as part of the LASPO review.

  • Departmental budget - Shadow Lord Chancellor Richard Burgon MP asked about the £300 million cut to the Ministry of Justice budget included in the Autumn Budget. Responding, Lord Chancellor David Gauke MP said that that reduction was agreed in the 2015 spending review. The Budget included an extra £52 million for the Ministry of Justice.

  • Criminal justice - Karl Turner MP (Labour) asked about cuts across the criminal justice system. Responding, Justice Minister Lucy Frazer QC MP said that the Ministry of Justice is investing across our justice system, including in the AGFS.

  • Probate - Tim Loughton MP (Conservative) asked about the recently announced changes to probate fees, saying that 'the fees for an estate worth £499,999 have risen from £215 to £750, and those for an estate worth £500,000—just £1 more —will rise to £2,500 for not a jot more work on behalf of the government'. Responding, Justice Minister Lucy Frazer QC MP said that charging fees is an essential part of funding an effective and modern Courts and Tribunals service. She said that they have listened to the concern closely, and that the new system will lift 25,000 estates out of paying probate.
  • House of Lords

    EU Justice Sub-Committee: Intellectual Property and the Unified Patent Court

    During a session of the EU Justice Sub-Committee on 'Intellectual Property and the Unified Patent Court', peers heard from:

    • Sam Gyimah MP, Higher Education Minister
    • Adam Williams, Director of International Policy, Intellectual Property Office.

    A summary of the session is below:

    Implications of Brexit

    Standing in as Chair for the session, Liberal Democrat peer Baroness Ludford asked the witnesses how they thought that Brexit would impact upon the intellectual property (IP) landscape.

    In reply, Mr Gyimah described the 'dynamic' nature of IP in the UK irrespective of Brexit and the way in which technology was changing it.

    He argued that leaving the EU could present some opportunities for flexibility regarding IP, but that the exact nature of this would depend on the nature of the final deal that was agreed with Brussels.

    Labour peer Lord Anderson of Swansea pressed Mr Gyimah for examples of things the UK would be able to do regarding intellectual property outside of the EU which it could not do at present, prompting the Minister to say that current arrangements were advantageous and he would like to 'lock in' those existing benefits.

    Mr Williams suggested that 'small tweaks' - but not 'wholesale change' - could be made to the existing IP system to allow greater international harmonisation with states outside of Europe.

    Askes by the Chair specifically what the impact of no longer being part of the European framework could be, Mr Williams acknowledged that 'elements of the European IP system that will no longer, legally, work' post-Brexit, adding that the government was looking to minimise the effects on businesses.

    Continuing, he expressed confidence that the patent system should not change dramatically but conceded that there could be greater disruption to the trademark and copywrite systems, particularly in the event of 'no deal'. Some areas of copyright law required cooperation and permission from the EU, he added.

    IP rights

    Crossbench peer Lord Cromwell sought more information on how SMEs in particular could be affected, if they relied on intellectual property currently protected under EU law.

    Answering, Minister Gyimah explained that the government would ensure that all existing EU trademarks continued to be protected by providing an equivalent, 'cloned' UK trademark so that rights could continue.

    Mr Williams conceded that there could be a gap for businesses who had trademark registration pending in the EU which would not be granted before exit date.

    FTAs

    Labour peer Lord Cashman asked about the potential long-term consequences of signing future free trade agreements, and the impact that these could have for remaining within the framework of the European Patent Convention (EPC).

    Replying, Mr Gyimah stressed that the UK would not be leaving the EPC, and noted that there were already third parties who were party to the Convention.

    Unified Patent Court

    Lord Kinnoull sought an update on negotiations relating to the Unified Patent Court and unitary patent system, to which Mr Gyimah said there was 'scope to negotiate' the UK's continued access to the Unified Patent Court Agreement (UPCA).

    Continuing, he acknowledged that there would be legal difficulties to overcome in order for the UK, as a third country, to remain in the system because the Court was 'not an EU institution'.

    Mr Williams highlighted the benefits of the UK's continued participation for the EU27, and called for 'sensible' talks to achieve this.

    Labour peer Lord Judd asked whether the UPC would be moved out of London. In answer, Mr Williams said that his understanding was that the Court would not be able to stay in the UK.

    Lord Cromwell argued that the UK would move from being a member of the UPC to being 'a lobbyist', prompting Mr Gyimah to say that the focus should be on maintaining influence in the longer term as there would inevitably be a short-term loss of ability to set the agenda across a number of areas. The British government had 'a lot of significant cards', he stressed.

    European Court of Justice (CJEU)

    When asked by Lord Anderson whether the government was reconciled to the fact that maintaining European patents would require reference to the rulings of the CJEU, Minister Gyimah agreed that the EPC was bound by EU law and could refer matters to the European Court.

    He did not believe, however, that UK courts would be bound by CJEU rulings or European legislation.

    Pushed for more details by the Chair, Mr Williams clarified that the CJEU was not the 'final arbiter' of European patents.

    Intellectual Property Office (IPO)

    Baroness Ludford noted that the government had not committed to remaining part of the EU IPO, despite key stakeholders arguing that this would be beneficial for British businesses, prompting Mr Williams to say that commitments could not be given as the Office was a matter of negotiation.

    Then asked whether the role of the ECJ in the EU IPO was a point of contention, Mr Williams said that this 'causes issues' because there was a more direct effect for the Court.

    Wednesday 14 November

    Government publishes draft Withdrawal Agreement and Political Declaration

    The government published the draft Withdrawal Agreement, reflecting the in principle agreement between the UK and EU negotiating teams on the full legal text.

    Following a special European Council meeting on 25 November, the government will then lay a final version of the agreement before Parliament.

    The government also published an outline of the Political Declaration on the future relationship, setting out progress on the scope of the framework for the future relationship.

    Read our summary of the Withdrawal Agreement.

    House of Commons

    Home Affairs Committee session: Government preparations for Brexit

    During a session of the Home Affairs Committee on 'government preparations for Brexit', MPs heard from:

    • The Rt Hon Nick Hurd MP, Minister of State for Policing, Home Office
    • Rebecca Ellis, European Directorate, Home Office
    • Scott McPherson, Director General, Crime, Policing and Fire Group, Home Office

    Europol and joint investigations

    Labour MP Alex Norris asked, in relation to Europol, what would happen to the ongoing joint investigations in the event of a No-Deal.

    Ms Ellis replied by stating that there was no 'in principle' bar preventing the UK to continue its involvement in joint investigations in the event of a no deal, but highlighted that such impact would depend very much on the nature of the no deal.

    Mr Hurd went on to state that as far as negotiations went relating to Brexit, there was close alignment between the UK and EU. However, he outlined that there were 'positive signals' from the EU related to the security aspect of Brexit negotiations.

    Brexit negotiations

    The Chair asked if the Commission had drafted a contingency plan proposal regarding the UK's future in Europol in the event of no deal.

    In reply, Ms Ellis explained that a proposal regarding that issue could only come from the European Commission, which would then require a sign of from the European Council.

    She went on to state that the government had not asked, and had 'no live conversations' with the European Commission regarding any proposals they may have in place regarding Europol and extradition treaties. Mr Hurd added that there were conversations with member states on such issues.

    Security treaty

    The Chair asked if there was a separate track aimed at a separate security treaty.

    Mr Hurd said 'in practical terms' the discussions around security cooperation were 'inextricably linked' with other discussions regarding Brexit - 'nothing is agreed until everything is agreed'.

    Ms Ellis added that the form of the agreement would impact the time it would take to pass, and the extent to which that would be either as a standalone treaty or part of a wider set of treaties would again have different impacts on the length of time it would take to pass.

    Extradition

    The Chair asked what legal way the Home Office would have to extradite people from Northern Ireland to the Republic of Ireland as the 1957 Convention on that issue had been revoked by Ireland.

    Ms Ellis said that she was confident that the UK would continue to be able to have that aspect of extradition. She added that there were a number of discussion with all member states regarding contingency planning, particularly with a focus on extradition, but did not want to go into detail.

    The Chair asked for more clarity about how far discussions had been with individual member states regarding any legislation which covered extradition.

    Mr Hurd said the range of conversations they had regarding no deal preparations were 'patchy' because both parties were focusing on making progress on the current deal under negotiation.

    No deal security arrangements

    Independent MP John Woodcock expressed concern that the panel could not outline which countries would require legislative change to implement an extradition system with the UK.

    Mr Hurd outlined that that at the end of March 2019 the UK would be at the 'baseline' he had outlined earlier in the Committee if there was a no deal scenario.

    The Chair asked, if there was no deal, would the country be less safe.

    Mr Hurd reiterated his previous comment that such a scenario would effectively make the UK fall back to provisions from around 2004, which were less effective, resulting in a loss of security capability which would have to then be approved on by 'intense' bilateral work.

    He added that in such a scenario would also see an increase in organised crime such as human trafficking, which would be unfortunate considering that it would coincide with a reduction in the UK's security capability.

    Read the full debate.

    Friday 16 November

    Government reshuffle

    Stephen Barclay MP has been appointed Secretary of State for Exiting the EU following the resignation of Dominic Raab MP. Stephen Barclay is a solicitor.

    Kwasi Kwarteng MP has been appointed Parliamentary Under Secretary at the Department for Exiting the EU following the resignation of Suella Braverman MP.

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

Tags: 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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