In this bumper edition of the Parliamentary report you can find updates on the Law Society's access to justice campaigns and Brexit work from the last two weeks.
Our campaigns on access to justice have been central to our parliamentary work. Last week, as a result the Law Society was positively mentioned in Parliament 25 times. These mentions were across three reports of select committees and a Westminster Hall debate:
Public Accounts Committee (PAC) - We were mentioned 10 times in a report by the PAC on the 'transformation of courts and tribunals'. The Committee supported our concerns on the lack of clarity on how the reformed services will work in practice, shortcomings on the analysis of utilisation data and where legal advice fits into an online case system. The Committee asked HMCTS to identify and evaluate the impact of changes on individual's access to justice and the fairness of the justice system.
Justice Select Committee - The Law Society was mentioned 7 times in a report on failures in disclosure of evidence in criminal cases. The report argues that there is a lack of leadership which is driving the failures in disclosure. It echoed our concerns on the large increase in the volume of material while the police and prosecution authorities are facing funding cuts and recommended that the government considers what level of investment is necessary to prevent disclosure failures. The Committee agreed with us that disclosure failures in the Magistrates' Court are also important and recommended a review of disclosure in these courts. It also supported our view that often the police do not actively seek to generate evidence which could assist the suspect and treat it as for the lawyers to obtain. The Committee recommended that the College of Policing consider a revision to its code of ethics to ensure that it is clear that police have a duty to follow all lines of inquiry. Our press release can be read here.
Joint Committee on Human Rights - The Law Society was mentioned 5 times in a report by the Joint Committee on Human Rights on 'attitudes to enforcement of human rights' and legal aid. The report emphasises our concerns in relation to the exceptional case funding, increase on litigants in person and the negative rhetoric directed to the legal profession. The Committee urged the Ministry of Justice to consider these issues as part of their LASPO review, to ensure that people have access to legal advice and assistance (legally aid funded where necessary) to navigate complex legal process forms. It emphasised that the government should not seek to abuse their position to influence, intimidate or interfere in legal processes.
Westminster Hall debate - The Law Society and our arguments were mentioned 3 times during a parliamentary debate on domestic abuse and the family courts. We briefed MPs in advance and called on the government to bring forward legislation prohibit cross-examination of domestic abuse victims by their alleged perpetrator.
Furthermore, the government responded to the Justice Committee's recent report on the small claims limit for personal injury. The Ministry of Justice decided to delay the targeted implementation date of the reforms to small claims track by a year to April 2020 and said that it will be publishing a report on small claims reform 'in due course'.
On other issues, Parliament dealt last week with conflicting reactions to the Brexit White Paper and key pieces of Brexit legislation. The remaining stages of the Trade Bill took place - a Brexit measure designed to establish a framework for UK international trade, outside the EU institutions which have regulated it since 1972. MPs voted in favour of the Bill by 317 votes to 286. The Customs Bill (taxation cross border trade bill) was also considered and narrowly passed. Both bills will go to the House of Lords in September.
The Law Society cautiously welcomed the Brexit White Paper including the government's commitment to sign up to the Lugano Convention and retaining an agreement on mutual recognition of legal qualifications. On broader trade in services, we have noted the FTA starting point, but the result will depend on the other parties' views on priority areas to be included in the final result.
Parliament rose on 24 July for summer recess until 4 September.
This week in Parliament
Monday 23 July
House of Commons
- Housing, Communities and Local Government (including Topical Questions)
House of Lords
- Oral Question: Human rights abuses in Jammu and Kashmir - Lord Hussain
- Debate: Preparations and negotiations connected to the UK’s exit from the EU - Lord Callanan
Tuesday 24 July
House of Commons
- Exiting the European Union - Oral Evidence Session: The progress of the UK’s negotiations on EU withdrawal
- Exiting the European Union - Oral Evidence Session
- General Debate: Matters to be considered before the forthcoming Adjournment
Wednesday 18 July
- The House of Commons will be in recess. The House will next sit on Tuesday 04 September 2018.
Last two weeks in Parliament
Monday 09 July
House of Commons
Prime Minister’s statement on Chequers Brexit plan
Prime Minister Theresa May made a statement to the House of Commons on the agreement the Cabinet made at the Chequers Summit. Read the Prime Minister's statement in full.
Several MPs asked the Prime Minister about the services sector during the statement. Please see below for further detail on this and the rest of the session:
Services: In her statement, Mrs May said the government’s Chequers approach to Brexit provided 'flexibility on services, in which the UK is world-leading.'
Daniel Zeichner MP (Cambridge, Labour) said the Prime Minister had outlined a 'hard Brexit for services', referencing the tech sector. Mrs May said many of the issues the UK was dealing with in services were dealt with on an international, rather than European, basis.
Nigel Huddleston MP (Mid Worcestershire, Conservative) said there was unlikely to be a 'a properly functioning single European market in services' and said that taking a flexible approach to services was a sensible approach. The Prime Minister said that 'precisely because there is not that single services market in the European Union, it is right and in our interest that we take a flexible approach.'
- Asked by Anna Soubry MP (Broxtowe, Conservative) about her concerns that there had been no details of the government’s plan for services, the Prime Minister said more detail would come in its forthcoming White Paper. Mrs May added that the government wanted to maintain more flexibility in services trade, saying they wanted to be free to maintain the UK’s key position in services, especially financial services and the City of London.
Chuka Umunna MP (Streatham, Labour) asked the Prime Minister why she was ignoring the services sector, and quoted TechUK’s warnings that the Chequers plan would reduce access to EU markets, confusing for consumers and would add to complexity for business. The Prime Minister replied that the sector was a great opportunity for trade deals around the rest of the world, and that the significance of the City needed to be recognised. She added that it was important to ensure the freedom to be flexible, as well as to have regulatory co-operation.
Seema Malhotra MP (Feltham and Heston, Labour) asked about the mutual recognition of health professionals’ qualifications and ensuring they can operate on a cross-border basis. The Prime Minister said this was subject to the negotiations, but that the government wanted to ensure recognition in several areas relating to professionals and professional services.
- Exiting the EU Committee member and Pat McFadden MP (Wolverhampton South East, Labour) cited statistics about the UK’s surplus in services trade with the EU and asked why the profit-making trade aspect of the UK economy had been thrown 'under the Brexit bus.' The Prime Minister said it was the services sector that would be a significant part of the UK’s trade agreements with the rest of the world.
Chequers agreement: Mrs May argued the agreement at Chequers was a comprehensive and ambitious proposal. She stated it is a proposal that will allow the UK to take control of its laws, money, and border in a way that protects jobs, ensures the UK can strike new trade deals, and keeps the union together. The Prime Minister argued that the proposals put forward by the EU in regards to the future relationship are currently not acceptable, and rejected the suggestion that an EEA arrangement or a trade agreement that doesn’t protect the integrity of the internal UK single market was acceptable. She argued that if the EU continues to push for either of these proposals, there is a risk there could be no deal, which would have profound consequences for both sides. Mrs May also said that the agreement is consistent with the commitments made in the Conservative manifesto but recognised that what the UK was proposing is challenging for the EU to accept. However, she stressed that there needs to be compromise and the proposals the UK has put forward are balanced and bold. Mrs May argued that there has been a spirited national debate, with robust views, and she has listened to these views and the proposals agreed at Chequers are the ‘right Brexit’. She strongly re-iterated that the government was delivering on what the UK had voted for.
Summary of agreement: Mrs May said the Cabinet agreed for the need for a new model for the future relationship. She said that the frictionless free movement of goods is the only way to avoid a hard border, and that at the heart of the proposal is a UK-EU free trade area that will protect supply chains. Mrs May said that the UK would maintain a common rule book on industrial and agriculture goods, that the UK would make a sovereign choice to agree to harmonisation on EU rules where necessary to prevent a hard-border, but that this would not cover services. She stated that the UK would leave the Common Agriculture Policy and Common Fisheries Policy, and there would be a parliamentary lock on any new EU rules. The Prime Minister said that a facilitated customs arrangement would remove the need for customs checks and allow the UK to pursue an independent trade policy. She stated there would be no additional burdens for business’ in this model. She added that the government would bring forward new technology to smooth this arrangement. Mrs May added that this respects what the UK has heard from businesses.
Brexit White Paper: The Prime Minister stated that the government’s Brexit White Paper will be published on Thursday, though there are reports that it may be delayed until next week.
Tuesday 10 July
House of Commons
Justice Questions took place in the House of Commons last Wednesday. During the early exchanges, the Justice Minister Lucy Frazer MP referenced the Law Tech Panel which is chaired by the Law Society’s President. A full summary is included below. Read a transcript of the session.
Mary Robinson MP (Cheadle, Conservative) said the application of new technology has the potential to make our justice system fairer and more effective, she pointed to the adoption of video technology in court by the Tribunal and Courts Service and how this could increase speed and accessibility. Ms Robinson asked how this 'much needed' innovation was being encouraged further in the justice and legal system. Justice Minister, Lucy Frazer MP highlighted the government’s £1 billion court programme which aimes to digitalise the courts services and bring it up to date. She also said the government was ensuring the legal services sector continued to thrive globally, referencing the first meeting of the Law Tech Panel this week and how it was supported by government but led by industry.
Small Claims Limit:
Dan Carden MP (Liverpool, Walton) asked what assessment has been made of the effect of his Department's plans to raise the limit for non-road traffic accident-related personal injury claims on access to justice for people injured at work. Minister of State, Rory Stewart MP, said the decision had been made to increase the small claims limit to £2,000 and that this had happened in many European countries as well.
Dan Carden MP went on to argue that increasing the limit removed the ability of many people injured in the workplace to seek a claim. The Minister of State responded that the shift was simply to keep the limit in line with inflation, he added that the limit was about people with small claims not catastrophic life changing injuries, he claimed the government were making sure the small claim process was easy for people to access without expensive lawyers.
Gloria Del Piero MP (Ashfield, Labour), raised the Justice Committee's report on the small claims limit increases which stated the change would represent a unacceptable barrier to justice. In response, the Minister of the State argued the increase simply amounted to a change in line with the retail price index.
Virendra Sharma MP (Ealing, Southall, Labour) pointed to the government's review of the impact of legal aid cuts and asked if more funding will be made available for legal aid if it is shown to be required. Justice Secretary, David Gauke MP said in response that the purpose of the review was to assess what needed to be done. The Justice Secretary added his department was liaising with HM Treasury over the future spending review and was working with stakeholders as part of the assessment into how the legal aid system is working.
William Wragg MP (Hazel Grove, Conservative) asked theJustice Secretary if he could provide detail on what active provision his department was making for a deal not being secured with the EU. In response, Lucy Frazer MP (South East Cambridgeshire, Conservative) said the department was working to ensure if there is a no deal they are ready for that and said the department had received £17.3 million extra from the Treasury to look into this and to make sure the Department has the right plan for all Brexit scenarios.
Gerald Jones MP (Merthyr Tydfil and Rhymney, Labour) argued that Family Drug and Alcohol Courts have wide spread support from lawyers, judges and policy makers and deliver better outcome for children and families but said they faced closures due to a lack of funding. In response Lucy Frazer MP said it was disappointing the programme was being discontinued by the Tavistock and Portland Trust but the government would continue to look at what was an important service
The Counter-Terrorism and Border Security Bill
The Counter-Terrorism and Border Security Bill has had its sixth and seventh Bill Committee sessions.
At the Bill’s sixth sitting, amendments were raised on the non-suspicion part of the new powers as well as on the right to access to a lawyer. The Law Society’s evidence was referenced nine times during the session including on three occasions by the Minister of State for Security.
Meanwhile, the Law Society’s evidence was referenced on five occasions and the Law Society itself was mentioned eleven times during the Seventh Sitting.
A summary of both session is below. Read the transcripts of the first session and second session. The Bill will now go to Report Stage.
Nick Thomas- Symonds MP (Torfaen, Labour) tabled amendment 44 to the Bill. This new clause would implement the recommendations of Parliament’s Joint Committee on Human Rights and would require an officer to have reasonable grounds for suspecting an individual is or has been concerned in the commission, preparation or instigation of acts of terrorism before her or she could detain an individual for up to 6 hours under Schedule 7.
Nick Thomas-Symonds MP discussed how an examining officer may exercise the powers under schedule 3 whether or not there are grounds for suspecting that a person is or has been engaged in hostile activity. He pressed the Minister on the requirement that an officer have reasonable grounds for suspecting an individual. The Minister of State for Security, Ben Wallace MP argued the Law Society’s witness, Richard Atkinson, had said in his evidence that he had no concern about the suspicion part of the power. Mr Wallace said he thought it would be a setback for our national security and counter-terrorism work if the no-suspicion stop powers were removed.
Access to a lawyer
Gavin Newlands MP (Paisley and Renfrewshire North, SNP) moved amendment 21. This amendment would delete provisions in the Terrorism Act 2000 which restrict access to a lawyer for those detained under Schedule 7. While introducing the amendment Mr Newlands noted that Richard Atkinson had stated that the schedule was of 'great concern' to him as it fundamentally undermined what he would consider to be a cornerstone of our justice system - legal professional privilege.
- Speaking on amendment 21, Mr Thomas-Symonds also commended the evidence of Richard Atkinson in terms of seeking practical solutions to deal with the government’s concerns and still maintain the right of legal professional privilege. He also noted that Mr Atkinson suggested several ways in which the balance could be maintained.
Mr Thomas-Symonds said the committee should turn their minds to finding a practical solution that maintains legal professional privilege.
- Responding to the proposed amendment, Mr Wallace said he agreed with Opposition Members that where an individual has been detained under those schedules and has requested to consult a solicitor, they should have the right to do so privately. He claimed in the vast majority of cases, there will be no reason to question that right. However, he added that on rare occasions, there might be a need for the examining officer or a more senior police officer to impose certain restrictions.
- The Security Minister specified that the powers are designed to be available only in specific and serious circumstances, namely where those detained seek to frustrate an examination, cause evidence to be interfered with or alert others who are in some way involved in an offence.
- In response, Mr Thomas-Symonds argued the professional code of conduct that lawyers have would prevent them in engaging in any illegal activity. He described how Richard Atkinson had said that where there is concern about an individual lawyer there is provision for the suspect to have the consultation with that lawyer delayed but to be offered the services of another lawyer in the meantime.
Mr Wallace addressed the point by saying that schedule 3 would allow use of the power only when an officer at least of the rank of commander, or assistant chief constable, has reasonable grounds for believing that allowing the examinee to exercise his or her right to consult a solicitor privately will have certain serious consequences. The Minister also made a distinction between a police station and a border security stop and the admissibility of verbal discussion as evidence in court.
Access to a lawyer
Gavin Newlands MP tabled an amendment that would delete provisions in the Bill which restrict access to a lawyer for those detained under Schedule 3 for the purpose of assessing whether they are or have been engaged in hostile activity. Mr Newlands noted that the Law Society had also raised concerns and had suggested that the proposals risk the excellent reputation across the world of the UK justice systems. He also quoted Richard Atkinson, Chair of the Law Society’s Criminal Law Committee, on how legal professional privilege is a legal cornerstone that has been in existence for hundreds of years and that is held out internationally as a gold standard.
Mr Newlands went on to say that the right to private legal advice can be maintained if the Bill adopts the idea that solicitors approved by the Law Society can provide that advice. He again used Richard Atkinson’s argument that if there are specific concerns about a lawyer, the duty lawyer or solicitor can be called to come and advise which maintains privilege and maintains the defendant’s access to advice.
The Minister of State for Security, Ben Wallace MP argued the right to have a lawyer of your choice, saying whether it is the Law Society or the state that defines the duty roster, the point is that a detained individual should have a right to choose their own lawyer. Mr Wallace added that the Law Society can produce a panel or a duty solicitors’ roster, but that does not impinge on someone detained in a police station being able to choose a lawyer independently. The Security Minister also argued that the new schedule applies to hostile state activities and they would not put in peril the strength of the justice system and the right to a lawyer and to a fair trial.
- The amendment was put to a vote by the Committee and was rejected 10 votes to 7.
Wednesday 11 July
House of Lords
Brexit and the proposed UK-EU security treaty
The House of Lords EU Home Affairs Sub Committee published its report on Brexit and the proposed UK-EU security treaty.
The Law Society’s oral and written evidence is mentioned TEN times in the final report.
Our written evidence is cited on:
- the importance of the European Arrest Warrant (EAW), Europol, and the Europol Information System (EIS);
- our support for the existing arrangements under the Justice and Home Affairs (JHA) opt-in;
- the prospect of the UK leaving EU agencies’ management structures – and becoming a third country – during the transition period;
- third country agreements, with member state agreement, which permit the sending of liaison officers to Europol and limited participation in projects under Europol;
- third country arrangements relating to extradition, specifically that the 1957 Council of Europe Convention on Extradition does not cover all 27 EU countries, and that this Convention would also create problems with Ireland and Spain.
Dr Anna Bradshaw, Member of the Law Society's EU Committee, represented us in giving oral evidence to the Committee in May. Her oral evidence is cited twice in the report, on the UK’s diminished influence on security cooperation post-Brexit, and priorities for the security treaty, specifically:
- 'The possibility exists that post Brexit there may be a change of emphasis. It is difficult to predict…but the key point is that the UK would not be in a position to influence the further direction of human rights considerations in the criminal justice cooperation sphere.'
- Dr Anna Bradshaw highlighted mutual recognition instruments that facilitated 'the recognition of confiscation orders made in other Member States. Those are incredibly useful tools.'
More generally the key findings in the report include:
- The Committee supports the government's ambition to continue security cooperation after Brexit, but there is no evidence that sufficient progress has yet been made in the negotiations. The Committee believes it is unlikely that such a treaty can be agreed in the time available.
- Operational continuity and the security of both the UK and EU would be seriously undermined were there to be an abrupt end to cooperation in March 2019. The Committee therefore welcomes the agreement of both the UK government and the EU that UK participation in those JHA measures in which the UK currently participates will continue during the transition period.
- The practical impact of Article 168 of the Withdrawal Agreement upon the UK’s extradition requests is unclear. The Committee therefore urges the government to ascertain the precise effect on the UK’s extradition arrangements, including on cases pending on the date of the UK’s withdrawal, and recommend that the government publish a contingency plan, addressing the effect of any disruption to the UK’s extradition arrangements.
- The Committee supports in principle the government's objective of securing a cross-cutting agreement on data protection. But this means that the sequencing of the negotiations will be vital: if future security cooperation is to be effective, the government must reach an agreement on data before agreeing a security treaty.
- The Committee also notes that in some areas security cooperation will have to change post-Brexit. For instance, some EU states, including Germany, are constitutionally barred from extraditing their own nationals to non-EU states. The government has yet to provide any evidence-based analysis of the effect of such changes.
- Security is thus not a ‘zero sum game’: we all stand to gain from agreement, and we all stand to lose if negotiations fail. Security cooperation should therefore be 'unconditional'. Neither side, however, has yet approached the negotiations in this spirit. The UK government’s ‘red lines’, and the EU’s response, appear to have narrowed the scope for agreement. This current mindset urgently needs to change.
Monday 16 July
House of Commons
Future UK trade policy
Last week International Trade Secretary Liam Fox MP gave a ministerial statement to the Commons on ‘delivering a transparent and inclusive UK trade policy.’
Dr Fox said his statement would set out the role of Parliament, the devolved Administrations, public, business and civil society, and how the government intend to engage with those groups for the UK’s future international free trade agreements (FTAs).
In his statement Dr Fox announced the creation of a new Strategic Advisory Group to advise ministers and trade negotiators on trade policy and negotiations. The Group will be made up of 14 experts drawn from different groups such as business, civil society and unions – and with an interest in trade deals and their impact on the UK (from the workplace to consumer choice and the environment). Individuals are invited to apply by 17 August 2018.
The group will be made up of representatives from: a business organisation; a regional business; an SME; a new entrant business; Scottish Welsh and Northern Irish businesses; a Think Tank; an academic organisation; consumers (2); a development organisation; a non-government organisation (NGO); a trade union.
Dr Fox said DIT were inviting expressions of interest from prospective members, based on their technical expertise.
Applicants for the group must provide evidence of:
- competence and experience in areas relevant to international trade and trade policy
- demonstrating understanding of the procedures by which the UK conducts international trade.
The key points from the statement and debate included:
Parliamentary engagement on FTAs: Dr Fox said all of the above groups would have the opportunity to engage with future FTAs and trade policy work, and to contribute from the outset of the process. He added that Parliament in particular would be provided with the ability to inform and scrutinise new FTAs in a timely and appropriate manner, through:
- A general debate, for example, in the first instance
- Statements and updates to the International Trade Committee on the progress of negotiations (including 'timely analysis at appropriate points')
- The application of the Constitutional Reform and Governance Act 2010 (CRaG) process to the FTA treaty for ratification
- The publication of an impact assessment
- Parliamentary scrutiny of the bespoke piece of primary legislation the government brings forward for each new future FTA that requires changes to legislation and where there are no existing powers.
Devolved administrations: Dr Fox said the government were conducting policy roundtables with devolved administrations and key stakeholders all over the UK to draw on their knowledge and expertise. He added that the devolved administrations would be able to inform the government’s approach to negotiations throughout the consultation period and 'with subsequent engagement throughout the entire negotiation process.' Dr Fox went on to say the government would engage more widely in Scotland, Wales and Northern Ireland, and the English regions through stakeholder meetings.
- The SNP’s Trade spokesperson Stewart Hosie MP said the devolved institutions may need to have a formal role in setting the negotiating mandate, not just to have liaison, discussion and consultation. Hosie added that he hoped the government noted the failure of the Transatlantic Trade and Investment Partnership (TTIP), due to the mass opposition on its impact on public safety, hygiene and the environment, and due to its lack of prior public consultation. He went on to recommend that the same level of scrutiny and consultation is applied to existing trade deals which are being rolled over with some amendment, as for brand new FTAs in the future.
Public engagement: Dr Fox said he would provide all MPs with the website and address details of the new formalised engagement structure for groups and individuals to inform the government’s approach to FTA negotiations. He went to say the government would host public consultations for each potential new FTA, lasting for at least 14 weeks.
Government approach: Dr Fox confirmed that, prior to entering formal negotiations, the government would publish an 'Outline Approach' and scoping assessment for each negotiation, setting out the high-level objectives and scope of that negotiation.
Tuesday 17 July
House of Commons
Small claims reforms
The Justice Select Committee have published their report on the small claims limit for personal injury. The Law Society submitted written evidence to this inquiry.
Read the Justice Select Committee report on the small claims limit for personal injury. As part of the report, they reproduced the flow chart which was included as part of our submission.
- The report shares our concerns about access to justice and the financial and procedural barriers that claimants may face.
- The Committee makes a number of conclusions and recommendations which mostly relate to our concerns about the impact on access to justice.
- The Committee argue that the small claims limit for personal injury should not be increased unless Ministers can explain how it will make sure that access to justice is not affected.
The Trade Bill passed its Report Stage and Third Reading in the House of Commons. Read the full debate.
MPs voted in favour of the Bill at Third Reading, by 317 votes to 286. The Bill now goes to the House of Lords where further amendments could be added or removed.
Please find below an overview of the votes.
Customs Union: New Clause 18, which would have mandated the government to seek continued membership of a Customs Union if it was unable to secure a free trade area for goods by 21st January 2019, was rejected by 307 votes to 301. The amendment would have established a backstop type arrangement for the Customs Union in the event that the UK could not negotiate a frictionless free trade area for goods, impacting the government’s ability to threaten ‘no deal’.
European medicines regulatory network: New Clause 17, which ensured that continued participation in the European medicines regulatory network was part of the UK government's negotiating objective, passed by 305 votes to 301. The vote mandates that the government take 'all necessary steps' to participate in the European medicines regulatory network as part of its negotiating objective. This could potentially have significant consequences, given that it has been reported only EU and EEA members are able to partake in such a system, given that it is essentially a single market for pharmaceuticals. This was a defeat for the government, who did not support the amendment.
Trade agreements: New Clause 3, which sought to ensure that all free trade agreements were subject to parliamentary scrutiny and consent was rejected by 314 votes to 284. New Clause 20, which would have ensured that any negotiating mandate was approved by the devolved legislatures was rejected by 316 votes to 37. Amendment 19, which required the government to publish the text of each UK free trade agreement for consultation prior to ratification, was rejected by 315 votes to 285.
Devolved administrations: New Clause 4, which related to the power of ministers in devolved authorities in international trade, was rejected by 316 votes to 248. Amendment 25,which ensured regulations could not be made without consent from devolved ministers was rejected by 318 votes to 37.
Trade Remedies Authority: Amendment 80, which would have mandated the TRA to include representatives from producers, trade unions and each of the devolved administrations in its non-executive board, was rejected by 314 votes to 295.
Wednesday 18 July
House of Commons
The House of Commons Liaison Committee held a session with Prime Minister Theresa May MP. Read the transcript of the session.
Vote on White Paper: Chair of Exiting EU Committee Hilary Benn MP asked if the government would consider placing the White Paper in front of Parliament, for a final vote of approval. The Prime Minister responded that the government would not put the Paper for a vote of parliamentary approval, but the Paper represented the government’s settled negotiating position.
Access to talent: The Prime Minister stated that the government will set out their policies for a post-Brexit immigration framework in due course. However, she stated that the UK will have an immigration system that still provide an access to talent for the EU.
CJEU: Sir William Cash MP stated to the Prime Minister that the CJEU would be the ultimate arbiter of UK law, under proposals in the White Paper, due to the fact that this would mean the UK mirroring EU law which was under the CJEU’s jurisdiction. The Prime Minister responded that that CJEU’s jurisdiction in UK would end after Brexit and that the government would not accept the CJEU as the sole arbiter in future UK-EU trade disputes.
SIs and legislative implementation: The Prime Minister stated that 40 Statutory Instruments (SIs) would have to be laid before the summer recess in order to begin the process of constructing a post-Brexit legal framework for the UK. The Prime Minister further stated that the government have already passed legislation to ensure legal continuity post-Brexit, including the Data Protection Act 2018 and the Sanctions and Anti-Money Laundering Act 2018.
FTA model: Sir Bernard Jenkin MP asked the Prime Minister if she had ruled out the option of negotiating an FTA with the EU because they will not countenance one without the backstop. The Prime Minister agreed that the EU had a single concept of what an FTA is, and that the government wanted a much wider and more ambitious overall partnership with the EU (than the Canada deal for example). She added that at the heart of this was a free trade area with the EU, but that is they did not use the term 'free trade agreement'. The Prime Minister went on to say that the two options that were on the table from the EU were:
- EEA plus free movement and a customs union, which the Prime Minister said would not reflect the vote
- An FTA that was inferior to the Canadian free trade agreement, but with effectively a border in the Irish Sea.
Pushed further by Sir Bernard on a ‘Canada plus-plus-plus’ FTA, the Prime Minister said the EU’s proposal on the FTA model would split Northern Ireland off from Great Britain. She declined to give a direct answer to his question about whether the government was specifically preparing 'for an invisible frontier in Northern Ireland' as part of its no-deal planning.
No Deal Outcome: The Prime Minister stated that the Treasury has set aside a sum of £3 billion in preparatory work, to assist Departments in their preparations for all outcomes in the Brexit negotiations including a no deal outcome. The Prime Minister further stated that in August and September the government would be releasing technical notifications setting out preparations that businesses and other organisations will have to undertake in the event of a no deal.
Hard border: Benn asked if a no deal Brexit would force the erection of a hard border in Northern Ireland. The Prime Minister responded that in the event of a no deal scenario, the government would look at the individual circumstances relating to the Irish border and make a separate judgment. However, the Prime Minister further reiterated that UK would not accept an agreement that divided the UK in the Irish Sea and that a no deal would be better than a bad deal.
Backstop: Benn asked if the government’s proposed common rulebook would apply in event of a backstop arrangement being enforced. The Prime Minister responded that the government’s proposals on a UK-EU free trade area and a Facilitated Customs Partnership would ensure a frictionless border. However, she also stated that negotiations about an Irish backstop are ongoing and details will be made clearer in the eventual Withdrawal Agreement.
Domestic abuse victims and the family courts
On Wednesday, there was a debate in Westminster Hall regarding domestic abuse victims and the family courts, led by Jess Phillips MP (Labour, Birmingham Yardley).
We briefed MPs ahead of the debate and were mentioned 3 times. A brief summary of the debate is included below.
- Jess Phillips MP opened the debate by thanking those who have been fighting for an improved family court system for victims of domestic abuse for ‘a very long time’, and thanked those who had sent briefings, including Women’s Aid and the Law Society.
- She noted that all organisation called for the prohibition of alleged perpetrators being able to cross-examine victims in the family court and joined their call. She quoted the outgoing head of the family division of the High Court, James Munby, who has called for the practice to end.
- She spoke about the impact on individuals having to face their perpetrators in court, and criticised cuts to legal aid. She highlighted numerous concerning complaints about the Children and Family Court Advisory and Support Service (CAFCASS).
- She urged the minister to act to bring an end to the ability for alleged perpetrators to cross-examine their victims.
Responding to the debate, Justice Minister Lucy Frazer QC MP noted the devastating effects that domestic abuse has on victims and welcomed the contributions to the debate.
- She said that the government have received more than 3,000 responses to the public consultation on domestic abuse and that they are now analysing them ahead of a government response in the autumn. This response will include a Domestic Abuse Bill.
- On the cross-examining of domestic abuse victims by their perpetrators, she said that the government remain committed to introducing this legislation as soon as parliamentary time allows.
- Also in the debate, Shadow Minister for Justice, Gloria de Piero MP (Labour, Ashfield) criticised the removal of legal aid for family law cases under LASPO. She said that the number of domestic violence victims representing themselves in the family courts had increased by 147 per cent since LASPOs introduction. She joined the calls for protection of domestic abuse victims and urged the government to bring forward a stand-alone victims’ law.
John Howell MP (Conservative, Henley) highlighted the Istanbul Convention which sets minimum standards for how domestic abuse and violence towards women and girls are treated, in order to protect victims. Although the UK has signed the Istanbul convention, it has not yet fully ratified it because we still need a legal means of bringing elements of it into our legislation.
Angela Smith MP (Labour, Penistone and Stocksbridge) also highlighted complaints regarding CAFCASS, and asked about the scope of the forthcoming Domestic Abuse Bill. She said that two legislative opportunities had been missed, and the government cannot afford to delay any longer.
Paul Scully MP (Conservative, Sutton and Cheam) and Jim Shannon MP (DUP, Strangford) encouraged the introduction of the Domestic Abuse Bill.
Thursday 19 July
House of Commons
Exiting EU Oral Questions
Exiting EU Oral Questions took place in the Commons.
The highlights from the session included:
- Asked by Barry Sheerman MP (Huddersfield, Labour) what the government were doing to ensure that UK manufacturing and services continued to have access to EU markets, Secretary of State for Exiting the European Union Dominic Raab MP said the UK was seeking to minimise new barriers to trade on services, to enable UK firms to establish in the EU and continue mutual recognition of professional qualifications.
- Asked by Liberal Democrat Brexit spokesperson Tom Brake MP (Carshalton and Wallington, Liberal Democrat) about the government’s support for the services industry, DExEU Minister Robin Walker MP said the White Paper set out a comprehensive vision for the UK-EU partnership, adding that the services proposals included 'guaranteeing that suppliers and investors can operate across a broad number of sectors, enabling firms to establish cross-border services, ensuring that professionals continue to get their qualifications recognised, and establishing a new economic and regulatory partnership for financial services.'
- Asked by Sandy Martin MP (Ipswich, Labour) how long it will take to negotiate a similarly open market in services with other parts of the world, Walker said the White Paper sets out a number of proposals for the services sector on how we can maintain those benefits. Walker added that the UK had been growing its services trade with the rest of the world relative to services trade with the EU (70% growth versus 40% growth over the past decade).
Pat McFadden MP (Wolverhampton South East, Labour) cited the White Paper’s acknowledgements that there will be less market access for UK businesses to European markets after Brexit compared with at present, asking whether the government had assessed the impact of this lower level of market access on the volume of trade or on jobs. Robin Walker responded that the 'advantages that make the services sector world leading are created here in the UK', adding that the government 'will make sure that the services sector has the right arrangements to continue to do business within Europe and to continue to have qualifications recognised but, of course, we are leaving the single market and there will be changes as a result.'
Impact on services:
Tom Brake asked about the government’s assessment of the impact of the Chequers agreement and no deal on the services sector – and specifically how the profitability, job creation potential and ability to export to the EU would be affected by either option. Robin Walker said that the UK had a world-leading services sector, and repeated the fact that it was exporting both to the EU and the rest of the world very successfully. He added that 'the single market in services was never completed.'
- Asked by Karin Smyth MP (Bristol South, Labour) what assessment he had made of the merits of negotiating an Association Agreement, Dominic Raab said given the future UK-EU relationship was likely to consist of several separate agreements covering economic, security and cross-cutting co-operation, it was possible that these arrangements could take the form of such an agreement. Pressed further by Smyth on how this would offer a 'privileged relationship' between the EU and the signatory and create binding, enforcement bodies, Raab commented that an Association Agreement was a flexible legal form, but did require binding treaty arrangements nonetheless. Raab added that the White Paper set out detailed proposals for balanced arbitration panels, on which the UK and the EU could appoint arbitrators so 'disputes can be resolved with good faith, trust and confidence on both sides.'
‘No deal’ advice to City:
- Asked by Labour Shadow Brexit spokesperson Matthew Pennycook MP (Greenwich and Woolwich, Labour) what specific advice the Department for Exiting the EU (DExEU) was giving to the financial services sector on how to prepare for a ‘no deal’ EU departure without a deal, Raab said the Department would be stepping up some ‘no deal’ preparations and that some of this would be publicly visible in the near future. He added that the Department had been preparing for some time and would be setting out the details of this shortly.
In a later topical answer, Raab said the government would release a series of technical notices over the summer to set out what UK businesses and citizens in several sectors would need to do in a no deal scenario, and would make public more of their preparations.
Economic and social rights:
- Challenged by Virendra Sharma MP (Ealing, Southall, Labour) about historical comments allegedly made by Dominic Raab about not believing in economic and social rights, DExEU Minister (and former barrister) Suella Braverman MP said the Secretary of State had a proven track record 'not only as a Justice Minister but as a lawyer, and any attempt to undermine his credentials and commitment to the rule of law, civil liberties and now delivering a successful Brexit is fundamentally misguided.'
Intellectual property rights:
Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow, SNP) asked what steps DExEU is taking to ensure that intellectual property rights (IPR) in the creative sector are maintained. Robin Walker said UK-owned trademarks and design rights in the EU27 would be unaffected by Brexit, adding that the government had agreed to protect all existing EU trademarks, community-registered designs and unregistered designs in the UK through the Brexit process. Walker went on to say that in place of those EU-level rights, 1.5 million new UK trademarks and registered designs will be granted automatically and for free.
European Arrest Warrant:
Diana Johnson MP (Kingston upon Hull North, Labour) asked for an update on the government’s position on having the same protections after Brexit, that the UK currently had to arrest and detain criminals. Robin Walker said the White Paper made clear that the UK was seeking the same levels of protection in the section on the security partnership, and said that the government were engaging the EU on how these issues could be arranged between the EU and UK so that existing protections were maintained.
- Foreign Affairs Select Committee chair Tom Tugendhat MP (Tonbridge and Malling, Conservative) asked about the government’s position on protecting human rights on the continent, referencing the erosion of the rule of law in parts of eastern Europe. Suella Braverman said the UK had a long and proud tradition, predating our membership of the EU, to protecting civil liberties, upholding human rights and enhancing the position of the individual, whether through the rule of law or through the UK’s commitment to the ECHR
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