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  4. Ministerial reshuffle, solicitor David Gauke MP is the new Secretary of State for Justice and Lord Chancellor, Taxation (Cross-border Trade) Bill

Ministerial reshuffle, solicitor David Gauke MP is the new Secretary of State for Justice and Lord Chancellor, Taxation (Cross-border Trade) Bill

17 January 2018

Last week the Prime Minister undertook a ministerial reshuffle. The Ministry of Justice (MoJ) confirmed David Gauke MP as the new Secretary of State for Justice and Lord Chancellor. He is the first qualified solicitor to be appointed to the post and replaces Rt Hon David Lidington MP, who was appointed as Minister for the Cabinet Office.


The appointment was one of three new appointments in the MoJ. Other confirmed ministers include former barrister Lucy Frazer QC MP, who was appointed Parliamentary Under Secretary for Justice. She will oversee a brief which covers legal aid, court reform, family and criminal justice and supporting the Secretary of State on EU exit and international business. Minister of State, Rory Stewart OBE MP, will focus on prisons and probation. He will have responsibility for the Civil Liabilities Bill in the House of Commons when it is introduced. See the full reaction to the appointment of the new Lord Chancellor.

The former Justice Minister, Dominic Raab MP, has moved to the post of Housing Minister in the newly named Ministry for Housing, Communities and Local Government. His brief will focus on activity outlined in the government’s White Paper launched in February 2017 regarding house building, and a broad call for evidence to make the house buying process quicker and simpler.

Both the House of Commons and the House of Lords returned last week following the Christmas recess.  The Taxation (Cross-border Trade) Bill received its Second Reading in the House of Commons, in which the government said the legislation will help realise its ambitions for establishing a stand-alone customs regime and ensure that VAT and excise legislation operates as required on EU exit. Labour’s ‘reasoned amendment’ to deny the Bill a Second Reading was defeated by 309 votes to 265.

The Trade Bill received its Second Reading in the House of Commons. Labour’s ‘reasoned amendment’ to deny the Bill a Second Reading was defeated by 313 votes to 281. The Bill passed without amendment and now moves to Committee Stage, which will begin today. The government said the Trade Bill provides continuity and stability by enabling the UK to implement the effects of the trading arrangements that already exist between the EU and other countries at the point when the UK leaves the EU (if ratified, including the agreements with Canada and Korea), rather than the trade agreements themselves.

This week the Lord Chancellor will formerly be sworn in at the Royal Courts of Justice (18 January) and the EU (Withdrawal) Bill will be debated at Report Stage in the House of Commons. The Sanctions and Money Laundering Bill will also be debated at Report Stage in the House of Lords for the first time.

The Law Society will brief MPs ahead of the second reading of the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill, which requires landlords to adhere to new standards to ensure residential rented accommodation is provided and maintained in a state of fitness for human habitation. The Secretary of State for Communities and Local Government, Rt Hon Sajid Javid MP, has announced the government will be supporting this Bill.

This week in Parliament

Monday 15 January 2018

Lords

  • Sanctions and Anti-Money Laundering Bill [HL] - Report Stage (day 1)

Tuesday 16 January

Commons

  • Treasury Questions
  • European Union (Withdrawal) Bill – Report Stage (day 1)
  • Justice Committee: Small claims for personal injury

Lords

  • Oral Question – Effect on women in the workplace of the UK leaving the EU - Baroness Crawley (Lab)
  • Report from the European Union Committee 'Brexit: deal or no deal' - Lord Jay of Ewelme (CB)
  • EU Justice Sub-Committee: Brexit: enforcement and dispute resolution

Wednesday 17 January

Commons

  • Ten Minute Rule Bill: Private Landlords (Registration) - Phil Wilson (Lab)
  • European Union (Withdrawal) Bill – report stage (Day 2)
  • Westminster Hall Debate: Ethics and artificial intelligence – Jo Swinson (LD)

Lords

  • Oral Question – Trade talks from April 2019 with countries having existing trade agreements registered with the EU - Lord Dykes (CB)
  • Data Protection Bill [HL] - Third Reading
  • Sanctions and Anti-Money Laundering Bill [HL] - Report Stage (day 2)

Thursday 17 January

Lords

  • Short Debate - Government assessment of the extent to which the legal system does justice to alleged victims in the commencement of prosecutions, the disclosure of evidence to defendants, and the relationship between the Crown Prosecution Service and the police authorities - Lord Morris of Aberavon (Lab)

Friday 18 January

Commons

  • Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill - Second Reading - Ms Karen Buck (Lab)

Last week in Parliament

Monday 8 January

Government reshuffle

Ministry of Justice

  • The Rt Hon David Gauke MP has been announced as the new Lord Chancellor and Secretary of State for Justice as part of Theresa May’s reshuffle.  He is a solicitor, admitted in 1997 and worked in MacFarlanes for six years specialising in financial services.
  • Lucy Frazer MP, a former barrister, has become the Parliamentary Under Secretary of State at Ministry of Justice. Frazer’s brief will cover the following areas: court services and reform (including Bills); legal aid; legal support and fees; administrative justice and tribunals; criminal justice and family justice.
  • Rory Stewart OBE MP has been announced as the new Minister of State for Justice, with responsibility for prisons and probation.

Leaving the Ministry of Justice

  • Rt Hon David Lidington CBE MP has become the Chancellor of the Duchy of Lancaster and Cabinet Office. Whilst he does not take on the role of First Secretary of State, Mr Lidington will stand in for the Prime Minister at Prime Minister's Questions if she is unable to attend.
  • Dominic Raab MP has been appointed as the Minister for Housing at the newly named Ministry of Housing, Communities and Local Government and Sam Gyimah MP has become the Universities Minister at the Department for Education and the Minister for Higher Education at the Department for Business Energy and Industrial Strategy.

House of Commons

Taxation (Cross-border Trade) Bill Second Reading

The Taxation (Cross-border Trade) Bill received its Second Reading in the House of Commons. The Bill was previously known as, and is still commonly referred to, as the Customs Bill.

Closing the debate for the government, then International Trade Minister Mark Garnier said the Bill not only allows the government to establish a stand-alone customs regime and ensure that VAT and excise legislation operates as required on EU exit, but it also gives the UK the ability to respond to a range of outcomes to the EU negotiations.

Labour’s ‘reasoned amendment’ to deny the Bill a Second Reading was defeated by 309 votes to 265.

In the debate Mark Garnier confirmed that the Bill will have eight Committee Stage sittings in the Commons. The dates for Committee Stage sittings have not been confirmed yet.

A summary of the key issues in the debate:

  • Labour position: Shadow Treasury Minister Anneliese Dodds MP said both the Customs Bill and the Trade Bill revealed that the government were again using Brexit as an excuse to allocate themselves more powers. She added this was incredibly dangerous as decisions about trade can destroy jobs as well as create them.

Labour MPs Chris Leslie and Yvette Cooper also raised concerns that the government were failing to enable proper scrutiny and debate on decision making with the same centralising of power away from Parliament as they had observed with the EU (Withdrawal) Bill and the last two Finance Bills.

Dodds confirmed Labour will table amendments in Committee Stage to ensure the government’s decisions are subject to appropriate parliamentary scrutiny and, in particular, to ensure they are amendable resolutions when deciding the important issues such as changing customs tariffs, preferential rates for different countries and remedies for different international trade disputes.

Setting out Labour’s four core objections to the Bill, Dodds also said:

  • there must be much more parliamentary oversight of future customs and tariff regimes
  • it fails to offer businesses and manufacturers the certainty they need about the UK’s future customs regime
  • the new approaches on customs arrangements for HMRC will be a burden to them, and will cause an upheaval by a potential new customs arrangement
  • the government is proposing an untried, untested and undemocratic approach to trade remedies. The Trade Remedies Authority should be accountable to Parliament.
  • VAT: Responding to calls for an impact assessment on the effect of the VAT regime by Labour MPs Chris Leslie, Stephen Kinnock and Catherine McKinnell, Garnier said the final deal would first have to be known, and restated the Chancellor’s pledge in the Autumn Budget that the government would work to mitigate the effects of changes to the VAT regime under the Bill.

Earlier in the debate Stella Creasy MP asked about the impact of the 13th Directive and the ability of other countries to vary their own VAT requirements after Brexit, and whether the government could be confident that they could implement a system of import and export tariffs – given it will still be dependent on all EU27 countries determining their VAT relationship with the UK.

Chris Leslie also asked if it was the government’s policy to try to remain a member of the EU VAT area, to which Financial Secretary to the Treasury Mel Stride MP answered that the purpose of the Bill was to ensure that government was ready for whatever eventuality they were faced with during the negotiations. He added the Bill moved the UK away from acquisition VAT to import VAT.

  • Henry VII powers: The SNP’s Economy Spokesperson Kirsty Blackman MP said the Bill had four instances where the government was creating Henry VIII powers (the power to amend or repeal an Act of Parliament). She added that the majority of delegated authorities created in the 166-page Bill related to negative procedures, and reiterated her concern about the Bill’s lack of requirement for ministers to consult when making secondary legislation.

Tuesday 9 January

House of Commons

Trade Bill gets second reading

The Trade Bill received its Second Reading. Labour’s ‘reasoned amendment’ to deny the Bill a Second Reading was defeated by 313 votes to 281. The Bill passed without amendment and now passes to Committee Stage, which will begin on 16 January.

Opening the debate for the government, Secretary of State for International Trade Dr Liam Fox MP said the Bill contained six delegated powers allowing the government to make regulations to support their new independent trade policy. These included two powers allowing the government to amend primary legislation; relating to ensuring the continuity of EU trade agreements into a UK-only context and to HMRC’s collection of exporter information.

Dr Fox said the use of both powers would be subject to significant restrictions, and that the trade agreement continuity powers can be used to amend primary legislation only when it forms part of retained EU law.

Closing the debate for the government, International Trade Minister Greg Hands told Labour MPs that the Bill did not include powers to implement future free trade agreements negotiated with new countries. He said the Trade Bill instead provides continuity and stability by enabling the UK to implement the effects of the trading arrangements that already exist between the EU and other countries at the point when the UK leaves the EU (if ratified, including the agreements with Canada and Korea).

The other key points in the debate included:

  • Trade Bill’s purpose: Liam Fox said the Bill had four primary aims: (1) to prevent disruption to UK businesses and consumers by continuing the market access available under existing trade agreements; (2) to maintain UK businesses’ guaranteed rights to access global public procurement markets (including through the Government Procurement Agreement); (3) to create a new UK trade remedies framework overseen by an independent body, the Trade Remedies Authority; and (4) to enable HMRC to collect and share essential data on the UK’s trade flows.
  • HMRC: Independent MP Lady Sylvia Hermon said she was concerned that Clause 7 in the Bill was extremely broad and gave enormous powers to HMRC to oblige people to provide them with information. Dr Fox said the government were keen to ensure this proposal applied to information related only to those elements needed for continuity and to gain the information needed for better trade policy making. He added that HMRC was insistent the government restricted the power as much as possible, because HMRC did not want to become a huge bureaucratic organisation.
  • Scrutiny of new FTAs: Shadow International Trade Secretary Barry Gardiner MP called on Dr Fox to assure the House that the government would bring forward an amendment in Committee to ensure that new internationally binding agreements must go through a due process of proper scrutiny by Parliament, rather than being signed off by ministers without a vote through the negative procedure.

On transparency in the government’s trade discussions with the US administration, Gardiner reminded the House that Liam Fox had given the US Trade Representative assurances that all information exchanged between the UK and US officials will be kept secret until four years after the trade working group has been concluded.

Conservative MP Dominic Grieve also said the Trade Bill’s delegated powers memorandum made clear that these powers were broad enough to enable not just the implementation of EU agreements, but their substantial amendment, including the creation of new obligations. He called for the government to look, as the Bill progresses, at ways to ensure that these can be properly scrutinised given the European Scrutiny Committee and European Parliament methods would no longer exist.

Responding to Green MP Caroline Lucas, Fox also said the Government “will use separate vehicles” [to the Trade Bill] to cover new free trade agreements, and would “introduce a separate proposal” on consulting legislatures for these future agreements.

Third party receptivity to grandfathering FTAs: Responding to Conservative MP John Redwood about third countries rolling over their EU FTAs to the UK, Fox said he could confirm that “there is considerable interest in the continuation of those trading agreements with the UK.” Fox also said the government had 14 working groups with 21 countries in preparation for future negotiations in trade agreements after the UK leaves the EU.

Legal Aid for inquests and the Shoreham Air Show Crash debated

A Westminster Hall Debate took place regarding the Shoreham Air Show Crash and access to justice for the families. The Law Society briefed MPs before the debate and we were mentioned favourably twice in the debate.

Tim Loughton MP (East Worthing and Shoreham, Conservative) moved the debate, as the constituency MP for where the tragedy occurred.

  • He raised concerns at the ‘extraordinary decision by the Legal Aid Agency not to extend funding from the exceptional cases fund to the families of the victims at the coroner’s inquest.’ He reported his disappointment at the decision from the Ministry of Justice that ‘the Legal Aid Agency made its decision properly, that the application and subsequent appeal were considered in line with relevant guidance and that Ministers cannot intervene.’ He commented that as it stands at the official coroner’s inquest there will be 19 interested parties involved, and only the families of the victims will not have legal representation.
  • He noted that the Law Society has supported this application and strongly believes that bereaved families should have access to legal representation where possible,’ then quoted directly from our briefing that:
    • ‘The current definition of exceptional case funding does not provide an adequate “safety net” for inquests. Applications for exceptional funding are highly complex and time consuming, requiring applicants to have an understanding of human rights law, and in the case of inquests, be able to show that there is an Article 2 (right of life) issue or a wider “public interest”.’
  • He called on the government to look at the Law Society’s recommendations about what the review of LASPO should change.
  • He paid tribute to Stewarts Law who have been representing the families pro bono and who made the application for legal funding and said that it ‘defies logic that, in this exceptional case, the families have not qualified for exceptional case funding.’ He described the ‘inequality of arms as inequitable and could undermine the inquest’s ability to serve the public interest through a failure to protect rights under article 2 of the [European Court of Human Rights], with the families in effect being left to represent themselves with one hand tied behind their backs.’

Minister’s response

Responding to the debate, the Parliamentary Under-Secretary of State for Justice, Dr Phillip Lee MP, praised the work of Tim Loughton MP on this issue. He described the incident as an appalling tragedy.

  • He noted that “the inquest itself is meant to be an inquisitorial process. It should not be an adversarial court proceeding. Participants are not required to present legal arguments, and they can ask coroners to question witnesses on their behalf. Inquests are about fact finding. They seek to establish the truth. Most inquest hearings are conducted without the need for publicly funded representation. That must be right to ensure they are as accessible as possible to both the bereaved and the wider public.”
  • He then commented that “early legal advice may sometimes be needed and helpful. That is why we have protected early legal advice to support the bereaved in preparing inquests, ensuring that it remains within the scope of legal aid. It may also be that publicly-funded representation at the inquest hearing itself is necessary in certain exceptional circumstances, and if that is the case it should be provided.”
  • He outlined that 62% of all applications for exceptional case funding were granted, and reiterated that Ministers cannot, and nor should they be able to, intervene in individual cases. He mentioned the wider review of LASPO and that they will look at legal aid provision for inquests as part of that.

Other interventions

In the debate, there were also three supportive interventions to Tim Loughton MP.

  • Neighbouring MP Peter Kyle (Hove, Labour) thanked and praised Tim Loughton MP for the way he has pursued this issue and worked with colleagues. He said that the families of the victims need support from government.
  • Neighbouring MP Huw Merriman (Bexhill and Battle, Conservative) also praised the work of Tim Loughton MP and argued that as the families will be the only ones at the inquest without representation, it is even more imperative that the families get legal aid to ensure there is balance.
  • Ellie Reeves MP (Lewisham West and Penge, Labour) argued that the government should always provide legal aid where the state is funding one or more of the other parties.

Wednesday 10 January

Nothing relevant

Thursday 11 January

House of Commons

International Trade Oral Questions

The highlights from the session included:

  • Regulatory alignment with the EU: Asked for his assessment of potentially maintaining full regulatory alignment between the EU and UK, Secretary of State for International Trade Dr Liam Fox MP said the government’s objectives included maximising overall trading opportunities, seeking a deep and special partnership with the EU, but at the same time looking to forge new and ambitious trade relationships with other countries under a new independent trade policy.
  • He added in response to another question that “alignment is about pursuing the same objectives; it is not the same as requiring regulatory harmonisation.”

Pressed by Labour MP Afzal Khan, Dr Fox added that the government did not anticipate any change in EU trade agreements after they were rolled over to the UK, noting that they intended “it to be the same as it is to date, to provide continuity for business.”

  • Australia and New Zealand: Asked by Conservative MP Michael Fabricant, Dr Fox reiterated that Australia and New Zealand are “two of our top three priorities” for FTAs, adding that the government were looking at all options to achieve trade liberalisation.
  • Trans-Pacific Partnership: Dr Fox declined to set out a definite policy on the UK joining the Trans-Pacific Partnership (TPP) after Brexit, when asked by SNP MP Martyn Day.

Pressed further by Shadow International Trade Secretary Barry Gardiner MP on regulatory alignment to the TPP, Dr Fox said he favoured trade liberalisation - whether it is bilateral, plurilateral or multilateral.

  • US-UK trade talks: Asked by Conservative MP Sir Geoffrey Clifton-Brown, Dr Fox said the UK government had four working groups with the US on continuity, short-term outcomes, the potential scoping of a future free-trade agreement, and working with the US at the World Trade Organisation – adding he was content they were making progress on all fronts.

Friday 12 January

Nothing relevant

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

Tags: Westminster weekly update

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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