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Justice takes centre stage, Brexit speeches and early advice

06 March 2018

Justice takes centre stage in Parliament this week as the Lord Chancellor takes questions from MPs in the House of Commons on Tuesday, before appearing in front of the Justice Select Committee on Wednesday.

The European Union (Withdrawal) Bill will have its 4th and 5th days of Committee Stage in the House of Lords this week, following the Prime Minister's speech at Mansion House last week, which the Law Society cautiously welcomed. You can read our press release in response to the Prime Minister's speech here.Speeches on Brexit were also delivered by Labour Leader Rt Hon Jeremy Corbyn MP, International Trade Secretary Rt Hon Liam Fox MP and Cabinet Office Minister, Rt Hon David Lidington CBE MP.

The business for this week in Parliament also includes a number of select committee oral evidence sessions on the progress of negotiations for the UK's withdrawal from the European Union, and a general debate on International Women's Day will take place on Thursday in the House of Commons.

Last week we hosted a Parliamentary drop-in event on our early advice campaign. Our campaign calls on the Government to provide legal aid for early advice in housing and family cases. The event was a great success, with 25 MPs and staff in attendance. Attendees included five members of the Justice Select Committee including the chair of the committee, Bob Neill MP, the Shadow Lord Chancellor, Richard Burgon MP, the former Conservative Party leader the Rt Hon Iain Duncan Smith MP, and prominent Labour MP David Lammy. You can write to your MP in support of our campaign here.

Day 2 and 3 of the Lords Committee Stage of the European Union (Withdrawal) Bill took place last week, but the Brexit focus centred on a series of speeches by both the Government and the Opposition. The Sanctions and Anti-Money Laundering Bill began its Committee Stage in the Commons, which will continue this week. Oral evidence was also taken by the Foreign Affairs Select Committee on Global Britain, where legal services were mentioned, and the Exiting the European Union Select Committee on the progress of the UK's negotiations on EU withdrawal.

This week in Parliament

Monday 5 March

House of Commons

  • Second Reading – Data Protection Bill
  • Oral evidence session - European Scrutiny Committee on EU Withdrawal with the Rt Hon Philip Hammond, Chancellor of the Exchequer and Mark Bowman, Director General, International Finance, HM Treasury

House of Lords

  • Committee Stage (Day 4) – European Union (Withdrawal) Bill

Tuesday 6 March

House of Commons

  • Oral questions to the Secretary of State for Justice
  • Committee Stage – Sanctions and Anti-Money Laundering Bill
  • Oral evidence session – European Scrutiny Committee with EU Withdrawal with the Rt Hon David Davis MP, Secretary of State for Exiting the European Union
  • Oral evidence session – Foreign Affairs Select Committee inquiry on Human Rights

House of Lords

  • Report Stage - Secure Tenancies (Victims of Domestic Abuse) Bill
  • Committee Stage (Day 5) – European Union (Withdrawal) Bill

Wednesday 7 March

House of Commons

  • Oral evidence session – Justice Select Committee with the Lord Chancellor, the Rt Hon David Gauke MP

Thursday 8 March

House of Commons

  • General Debate – Vote 100 and International Women's Day

Last week in Parliament

Monday 26 February


Leader of the Opposition, Rt Hon Jeremy Corbyn MP speech on Brexit

Labour Leader Jeremy Corbyn MP delivered a speech on Brexit and confirmed that the Labour Party will seek to negotiate a new comprehensive UK-EU Customs Union to ensure that there are no tariffs with the EU and to avoid any need for a hard border in Northern Ireland. He caveated this by adding Labour would only stay in a Customs Union if it had a say in EU trade deals. A full summary of the speech can be found below and the speech can be found here.

The new Labour position towards a customs union would mean the UK still comes out the Customs Union of which it is currently a member and form a new relationship as set out above. Corbyn detailed that Labour would negotiate a 'new and strong' relationship with the single market that includes full tariff-free access and a guarantee of existing rights, standards and protections.

Corbyn reiterated throughout his speech that Labour will protect jobs, improve living standards and guarantee EU citizens' rights throughout the Brexit negotiations. He also focused on regional investment, just not focusing on London, including Labour's policy of a national investment bank.

The other key points made:

  • Principles of Labour's Brexit policy: Corbyn set out three aims of Labour's Brexit policy:
  • 1. Whatever is negotiated must put jobs and living standards first. He added that Brexit negotiations must not leave the UK worse off.
  • 2. There is a need to bring unity, as most people regardless of leave or remain want better jobs, more investment, stronger rights and greater equality. He added there should be no 'scapegoating of migrants', no setting one generation against another and no playing off the nations across the UK. He reiterated that no one should be willing to scrap the Good Friday Agreement.
  • 3. There should be clarity around the UK having a global perspective. Labour will highlight that the UK is leaving the EU but not leaving Europe. He added that the UK should not throw up protectionist barriers and that Labour wants a close and cooperative relationship with Europe after Brexit. He concluded that Labour's overall priority is to get the best Brexit deal for jobs and living standards, investing in all regions.
  • Trade deals: Corbyn claimed that Labour does not believe deals with US and China will make up for trade with the EU. He added that these countries have weaker standards and regulations, meaning it will be a 'race to bottom' on vital protections and rights at work. When 44% of exports are to EU countries, then it is in both interests for that trade to remain tariff free. Labour is also opposed to the NHS or public services being part of trade deal with EU or transatlantic partnership as it would mean more privatisation of public services.
  • EU regulation: Corbyn said that many laws and regulations from the EU play a vital role, monitoring how we grow food and using latest scientific evidence. He used the car industry as an example as it relies on a frictionless, interwoven supply chain. Corbyn concluded that it therefore makes no sense for the UK to abandon EU agencies and tariff-free trading rules that have served the UK well, supporting our industrial sectors, protecting workers and consumers and safeguarding the environment. He added that, if that means negotiating to support individual EU agencies rather than paying more to duplicate those agencies here then that should be an option. This should not something ruled out because of 'phoney jingoistic posturing.' Corbyn added Labour especially wants to remain part of programmes like Erasmus.
  • Regional investment: Corbyn highlighted Labour's plans for a National Investment Bank to drive investment in communities, so every area has an industrial strategy based on investment in a high skill, high wage digital economy. He added that Labour would invest in a decade long programme of renewal.
  • Four great threats to humanity: Corbyn spoke about four great threats to humanity that Labour will seek to tackle. The first is the growing concentration of unaccountable wealth, second is climate change, third is unprecedented numbers of people fleeing conflict, persecution and human rights abuses and the fourth is increased international cooperation to avoid conflicts such as Iraq.

House of Lords

Committee Stage (Day 2) – European Union (Withdrawal) Bill

On Monday the House of Lords held its second Committee Stage debate on the EU (Withdrawal) Bill. The full debate can be read here and here.

The Law Society was mentioned once by Labour peer Lord Cashman, who said the debate "has illustrated to me more than any arguments that have come from a swathe of NGOs, such as the Bar Council, the Law Society, the Royal College of Nursing and others, that we cannot bring forward a change of such magnitude as this in a Bill that is supposed to retain all the EU law and then amend it afterwards." Cashman added that any change to the European Charter of Fundamental Rights should be done with full public scrutiny, engagement with civil society and through primary legislation.

In this session the Lords debated the remaining amendments relating to Clause 1 of the Bill, which repeals the European Communities Act. Peers have now concluded debate of Clause 1, and it stands unchanged as part of Bill.

The key points from the debate:

  • Charter of Fundamental Rights: Labour peer Lord Goldsmith moved Amendment 13A which would require the Government to bring forward proposals for the continued application of the EU Charter of Fundamental Rights. Goldsmith argued that the Government should bring the Charter into domestic law, as other aspects of EU law will be brought into UK domestic law post-Brexit. Goldsmith argued that the Charter does more than just codify existing rights and principles and that removing the Charter would significantly weaken the UK's human rights regime. He further argued that retaining the Charter would be the only means by which the Government could meet its objective of ensuring that Brexit would not lead to a weakening of rights. Lord Keen of Elie, the Advocate General of Scotland, responded on behalf of the Government. He argued that the substantive rights protected in the Charter will continue to be protected elsewhere in UK law post-Brexit, most notably in convention rights, in retained EU law, in the common law and via specific statutory protection. He argued that the Charter was never intended to be applied directly to member states in dealing with those matters that member states have the competence to deal with. Amendment 13A was withdrawn.
  • Counter-terrorism and security: Liberal Democrat Brexit spokesperson Baroness Ludford moved Amendment 13, which would mandate the Government to commit to continued UK participation in measures to promote internal security, police cooperation and counter terrorism. Lord Callanan stated that the Government intended to negotiate a comprehensive security arrangement with the EU post-Brexit, involving aspects such as the exchange of data and participation in Europol. Callanan further argued that there was precedent for third countries having close co-operation with the CJEU, without it having direct jurisdiction over those countries. Amendment 13 was withdrawn.

Other amendments were tabled and withdrawn on foreign policy, healthcare and EU research schemes.

Tuesday 27 February

House of Commons

Oral evidence session on Global Britain for the Foreign Affairs Select Committee

The Foreign Affairs Committee received oral evidence on Tuesday from the incumbent Lord Mayor of London Charles Bowman and former Lord Mayor Sir David Wootton. The session was part of the Committee's inquiry into the Government's 'Global Britain' policy.

The key points from the session included:

  • Mutual market access: Tom Tugendhat MP asked the witnesses about the effect of Brexit on the ability of British law firms to operate in and practice in EU member states such as France. Sir David replied that the Corporation was speaking to the Ministry of Justice (MoJ) and the Department for Exiting the EU (DExEU) about these issues.
  • UK legal firms in EU: Asked by Tugendhat how he saw the future for UK legal firms in Europe Sir David said it was very important that any effect on the legal services directives was "handled in a way that does not enforce structural change." Adding that the UK practice of law was now very well established in the larger EU countries' marketplaces, Sir David said that he thought the major firms currently led from London will continue to be led from London after Brexit.
  • Global legal centre: Asked by Tugendhat about the export of British justice – including English and Welsh law – into Asian countries, Sir David said he sat on the Brexit Law Committee and gave direct input on this issue into the Lord Mayor's meeting with the Chancellor of the High Court Sir Geoffrey Vos.
  • UK Government receptivity: Asked by Tugendhat, Sir David said the City of London Corporation found that the Foreign Office has gotten the key messages about legal services and was being very supportive.


Trade Secretary Rt Hon Liam Fox MP Speech on Brexit

International Trade Secretary Liam Fox MP delivered a speech on UK trade policy post-Brexit where he reaffirmed many of the Government's existing positions on trade, namely that a Customs Union with the EU post-Brexit would lead to the UK having little influence on its trade policy and that Brexit provided an opportunity to sign agreements with growing markets.

Within the speech, Fox said the UK had a range of key attributes which made it an advantageous country to operate an independent trading policy including an internationally respected legal system. Fox identified the financial services industry as a key sector to give the UK a comparative advantage in global trade negotiations and included commercial law, banking and accountancy within this.

More generally, Fox re-stated the Government's position that it intended to negotiate a comprehensive free trade agreement with the EU, including on non-tariff barriers to prevent a hard border in Northern Ireland. He directly referenced financial services as an example of an industry which would benefit from the growing middle class in many non-EU economies, such as China.

 The other points made:

  • Customs Union and post-Brexit trade: Fox noted that the 21st century would witness 90% of global growth happening outside the EU, in areas including China, the Asia-Pacific and Africa. He argued that the UK would need to have an independent trade policy to take advantage of global opportunities.
  • Services sector: Fox identified the financial services industry as a key sector to give the UK a comparative advantage in global trade negotiations. He highlighted that this includes commercial law, banking and accountancy. He said that that there would be a growing demand for the UK's services sector, from outside the EU, as the middle class grows in China, Asia-Pacific and the developing world. He also identified Fin Tech as a growing UK industry, stating that there had been massive increases in Fin Tech investment in London over recent years, which eclipsed other EU countries.
  • Digital economy and digital trade: Fox argued that digital economy and digital trade would define future economic trade and that the EU was often unable to adequately support global technological innovation. He also said that many existing trading practices do not reflect the realities of new technology, with greater flexibility needed in new trade agreements to support digital trade.
  • Trading models: Fox said that the UK would consider a range of trading models to facilitate new agreements post-Brexit. This would include mutual recognition, outcomes-based equivalence, multi-lateral deals and bilateral arrangements.
  • UK advantages: He stated that the UK had a range of key attributes which made it an advantageous country to operate an independent trading policy. This included world-class universities, an internationally respected legal system and a time-zone which allows advantageous trade with both the US and Asia.
  • Benefit of global trade:  Fox argued that globalisation and liberalising trade was of a massive global benefit to the world economy. He stated that trade was a key means to lift people out of poverty and reduce the cost of goods. Noted that an independent trade policy would provide the UK with the opportunity to project its values, including strong standards and environmental protections. 
  • Northern Ireland: Fox said that a comprehensive trade agreement with the EU was the best way of avoiding a hard border with Northern Ireland.  Stated that the Government would not accept an arrangement which would place customs and trade restrictions between Northern Ireland and the rest of the UK.
  • WTO: He stated that the UK intended to become a fully participating member of the WTO, post-Brexit and confirmed that the Government was in the process of registering its trading schedules with the WTO.

Wednesday 28 February

House of Lords

Committee Stage (Day 3) – European Union (Withdrawal) Bill

On Wednesday the House of Lords held its third Committee Stage debate on the EU (Withdrawal) Bill. The full debate can be read here and here.

Clauses 1-4 have now all been agreed without amendment in the House of Lords. These Clauses relate, respectively, to: the repeal of the European Communities Act (ECA); saving for EU-derived domestic legislation; the incorporation of direct EU legislation; relating to rights contained under section 2(1) of the ECA.

The Bill will begin its fourth Committee Stage debate on Monday, and this session is expected to begin discussion of Clause 5 and Schedule 1 (the remaining areas of the Bill relating to the retention of existing EU laws).

The key points from the debate are below:

  • Application to EU law: Speaking on behalf of the Lords Constitution Committee, Lord Pannick (Crossbencher) moved probing Amendment 15. The Amendment sought to provide clarity to ensure that Clause 2 only applied to regulations which were made under powers contained in the European Communities Act 1972, and not EU-derived domestic legislation which was enacted by normal procedures. The Government responded that it would examine the issues raised by the Constitution Committee on issues relating to transposing EU-based legislation into domestic law. Amendment 15 was withdrawn.
  • Enactment of legislation: Liberal Democrat peer Lord Wallace of Tankerness moved probing Amendment 16 on the enactment of EU-based legislation post-Brexit. He argued that the Government should provide clarity, particularly regarding passed laws that are due to be enacted after the UK has officially withdrawn from the EU. He stated this has particular relevance regarding the competence powers of the Scottish Parliament and the Welsh Assembly. The Government stated that, under the Bill, an Act of the Scottish Parliament that has only been passed and not received Royal Assent would not be categorised as EU-derived domestic legislation. Amendment 16 was withdrawn.
  • Status of EU directives: Conservative peer Baroness McIntosh of Pickering tabled Amendment 18, which ensured that directives passed by the EU, but which were not officially transposed into UK law by the time of March 2019, are fully adopted. The Government responded that that they will seek to implement those directives that require implementation by a transitional date before the UK's formal withdrawal from the EU. Amendment 18 was withdrawn.
  • Legal rights: Labour's Brexit spokesperson Baroness Hayter of Kentish Town tabled Amendment 21, which would ensure that no reduction of EU-based rights could take place, unless by primary legislation. The Government responded that it was intent on protecting EU rights and protections, but that secondary powers were important in order to transpose thousands of EU regulations and make necessary amendments to ensure that the UK can continue to have a coherent legal framework. Amendment 21 was withdrawn.

Friday 2 March


Prime Minister's speech on Brexit

Prime Minister Theresa May delivered her third major Brexit speech, closing the 'Road to Brexit' series of speeches delivered by Cabinet Members during the past two weeks.

The full speech can be viewed here.

The Prime Minister set out her vision for the future economic partnership between the UK and the EU, outlining five tests for the negotiations. She framed her speech around the idea that the EU and UK should look beyond precedents set by existing free trade agreements (FTAs) and seek to develop a deeper economic relationship.

The key points from the speech included:

  • Trade in services: May said that certain aspects of trade in services are intrinsically linked to the single market, and therefore market access in these areas would need to be different. She added that new barriers should only be allowed to be introduced where absolutely necessary, and that the UK didn't want to discriminate against EU service providers based in the UK (just as they wouldn't want the EU to discriminate against UK service providers).
  • Market access: The Prime Minister said the Government wanted to limit the number of barriers potentially preventing UK firms from setting up in the EU and vice versa, and to "agree an appropriate labour mobility framework that enables UK businesses and self-employed professionals to travel to the EU to provide services to clients in person and that allows UK businesses to provide services to the EU over the phone or the internet (and vice versa)."
  • Mutual recognition of qualifications: May said given that UK qualifications are already recognised across the EU and vice versa – it would make sense to continue to recognise each other's qualifications in the future.
  • Civil judicial co-operation: The Prime Minister noted that law was one of the areas where UK and EU economies are closely linked.She went on to say the Government wanted an agreement to cover civil judicial cooperation, "where the EU has already shown that it can reach agreement with non-member states, such as through the Lugano Convention," but that they also wanted a broader agreement that reflects the UK's unique starting point.
  • Financial services: May said the UK's goal is to establish an ability to access each other's markets based on maintaining the same regulatory outcomes, with a mechanism for determining proportionate consequences where they are not maintained. She added that given the highly regulated nature of financial services and shared desire to manage financial stability there needs to be a collaborative, objective framework which is mutually agreed and permanent. May confirmed that Chancellor Philip Hammond will set out next week how financial services "can and should be part of deep and comprehensive agreement."
  • Company law and intellectual property: The Prime Minister added the agreement "will also need to cover company law and intellectual property, to provide further legal certainty and coherence."
  • Regulatory standards and agencies: May said UK and EU regulatory standards will remain substantially similar in future. She added that "it is pragmatic common sense" to work together, saying the UK is willing to pay for and obey rules of some EU agencies. She will seek associate membership of European Medicines Agency, Chemicals Agency and Aviation Safety Agency. If negotiated, associate membership can provide UK's expertise and will commit UK challenges through UK courts rather than ECJ.
  • Trading relationship: The Prime Minister said there were five foundations that must underpin the future trading relationship:
    • A reciprocal binding relationship to be fair and binding – the current level of integration and geographical proximity means a reciprocal relationship is key.
    • An arbitration mechanism completely independent and common to current FTAs – so any disagreement can be resolved fully.
    • An ongoing dialogue with EU to consult regularly.
    • Arrangement for data protection as the free flow of data is critical for both sides in a trading relationship. She added she does not want just an adequacy relationship, so UK businesses are properly represented under EU's one stop shop regulations.
    • To maintain links between our people.
  • Withdrawal Agreement: May noted that the Withdrawal Agreement will soon be draft legal text, hinting that she did not accept what was included in the EU's draft text published this week. She added that the UK's commitment to the joint report was decided in December, not what is currently drafted. She detailed that the issue of an implementation period remains outstanding but can be resolved.
  • Customs: To achieve frictionless borders and avoid a hard border on the island of Ireland, May said we need a customs agreement. She said the EU has formed a customs union with other countries, but those arrangements (if applied to the UK) would mean the EU could set the UK's external tariffs and prevent our exports. She set out two potential options for customs:
    • A partnership arrangement between the UK and EU. At the border, the UK would mirror tariffs and all goods entering the EU will pay EU duties, removing custom processes.
    • A highly streamlined EU to implement a range of methods to minimise friction. Requirements for moving goods will be minimal and allow goods to travel through EU without paying EU duties and vice versa and reduce costs by maximising use of information and also recognising Northern Ireland's border. She concluded that the fundamental principle is that trade on EU-UK border results in no hard border in Northern Ireland. The UK's commitment is that UK regulatory standards will remain as high as the EU's.
  • Northern Ireland: May said she has put the Belfast Agreement at the heart of the UK's approach, yet leaving the EU presents challenges to this. She added it is unacceptable to break up the UK's own Common Market by creating a customs and regulatory border down the Irish Sea. She added she will not let leaving the EU set back the historic progress made in Northern Ireland nor damage the integrity of the Union.

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