The Ministers also faced questions on Brexit, litigants in person and court reform.
The European Union (Withdrawal) Bill had its fourth and fifth days of Committee Stage in the House of Commons with the focus on devolution. The Secretary of State for Exiting the EU also faced the Committee on Wednesday regarding the sectoral analyses delivered to the Committee.
Meanwhile the House of Lords held a small debate on improving regulation, exploring a number of themes including potential independent regulation of the legal profession, regulatory oversight and the UK as a global legal centre.
Brexit will again dominate the parliamentary timetable this week with days six and seven of Committee Stage of the European Union (Withdrawal) Bill, with the eighth and final day of committee stage scheduled for next week. On Wednesday the Solicitor General will be giving evidence to the Lords Constitution Committee on the European Union (Withdrawal) Bill and on Thursday the Secretary of State for Exiting the EU, David Davis MP will face oral questions in the Commons.
On Wednesday, the Law Society will host an ‘in-conversation’ event with the Chair of the Treasury Select Committee and former Cabinet member Nicky Morgan MP and Cicero.
In the Lords, on Monday the Data Protection Bill returns to the Lords for the first day of Report Stage, with the second day of Report Stage due to take place on Wednesday. Tuesday will see a debate on human rights priorities in the light of Brexit, and on Thursday there will be a debate on the report of the Bach Commission.
This week in Parliament
Monday 11 December
- Westminster Hall debate on e-petitions relating to a referendum on the deal for the UK’s exit from the European Union
- Public Accounts Committee Oral Evidence Session on Exiting the EU
- Oral Question on whether UK citizens who wish to retain their European citizenship post-Brexit may do so (Lord Teverson)
- Oral Question on effectiveness of local welfare assistance schemes in meeting need (Baroness Lister of Burtersett)
- Data Protection Bill [HL]; Report Stage (Day 1)
Tuesday 12 December
- European Union (Withdrawal) Bill; Committee Stage (Day 6)
- Westminster Hall debate on funding for domestic violence refuges
- Sanctions and Anti-Money Laundering Bill [HL]; Committee Stage (Day 4)
- Debate on human rights priorities in the light of Brexit (Lord Cashman)
- Artificial Intelligence Committee – Oral Evidence Session
- EU Justice Sub-Committee Oral Evidence Session on Brexit with Immigration Minister Brandon Lewis
Wednesday 13 December
- European Union (Withdrawal) Bill; Committee Stage (Day 7)
- International Trade Committee Oral Evidence Session on implications of arrangements for Ireland/Northern Ireland border for wider UK trade policy
- Joint Committee on Human Rights Oral Evidence Session on freedom of speech in universities
- Constitution Committee Oral Evidence Session on the European Union (Withdrawal) Bill with the Solicitor General
- Data Protection Bill [HL]; Report Stage (Day 2)
Thursday 14 December
- Oral Questions to the Secretary of State for Exiting the EU oral questions
- Debate on the report of the Bach Commission
Friday 15 December
Last Week in Parliament
Monday 4 December
Domestic Violence Regulations
Last Monday the Ministry of Justice announced that victims of domestic violence will get more support in taking abusive former partners to court.
The current 5-year time limit on abuse evidence in the family courts will be scrapped, while the range of documents accepted as evidence of abuse will be widened to include statements from domestic violence support organisations and housing support officers.
Law Society president Joe Egan said that:
“The government’s decision will make it easier for victims to provide evidence and to qualify for legal aid.
The five year time limit causes difficulties for victims who were abused more than five years ago but have no recent documents to prove this.
The forms of evidence required have also been very restrictive. Broadening the types of evidence that can be accepted to include statements from domestic violence support organisations and housing support officers will remove many of the difficulties faced by victims.
Legal aid is a lifeline for those who have suffered abuse. It is often the only way someone can bring their case before the courts.
Today’s positive decision is the end result of work the Law Society and other organisations have been doing with the MoJ for many months.”
The changes are expected to come into effect from 8 January 2018 and the regulations have been laid before Parliament.
House of Commons
European Union (Withdrawal) Bill; Committee Stage (Day 4)
Last Monday the European Union (Withdrawal) Bill completed its fourth of eight days in Committee Stage in the Commons. The Law Society briefed a number of MPs before the Committee stage.
The Law Society was mentioned twice in the debate by the SNP’s Westminster leader Ian Blackford MP, who said that on Clause 11 the Law Society had “called for discussions about where common frameworks will remain and the extent of their scrutiny.”
Criticising Clause 11 as “using a sledgehammer to crack a nut,” Labour MP for Edinburgh South Ian Murray also said the Law Society had put forward alternative options of “legislating that would allow a transition on day one that would respect the devolution settlement.”
Clauses 1 to 6 and 11, as well as Schedules 1 and 3, of the legislation were agreed to without amendment.
Three amendments were put to the vote and the Government won all three. These were put forward by both Opposition and SNP MPs relating to the Bill’s provisions on retained EU law and the devolved administrations:
- Retaining EU restrictions in devolution legislation: Shadow Brexit Minister Jenny Chapman MP moved New Clause 64, which aimed to establish new procedures for the creation of UK-wide frameworks for retained EU law – where the Secretary of State would be required to lay proposals for replacing European frameworks with UK ones before both Houses of Parliament. Ms Chapman said that given the frameworks would have a significant impact on the carefully-constructed devolution settlements in the Union, they must be created in collaboration with the devolved administrations. Responding, Constitution Minister Chris Skidmore said it was not the position of the UK Government or devolved administrations to replace EU frameworks with common ones, instead he expected that leaving the EU would see more powers devolved.
- Legislative competences of the devolved administrations: Ms Chapman also moved Amendment 42, which sought to amend Clause 11 by removing any restriction relating to EU law and ensuring no further restriction relating to retained EU law could be imposed. Speaking against the Amendment, Mr Skidmore said the amendment risked undermining the certainty the Government wanted to provide to businesses and to the integrity of the United Kingdom.
- Separate approval of Clause 11 by devolved administrations: Ian Blackford said his Amendment 72 would work alongside New Clause 64 and Amendment 42 to give the UK Government until the end of the transitional period to create any UK-wide frameworks. It would give the Scottish Parliament, and assemblies in Wales and Northern Ireland a vote on approving Clause 11 of the Bill before it came into effect. Blackford claimed that the Amendment was intended to remove the “power grab” by Westminster from the Bill and protect Scotland’s devolved settlement. In reply, Mr Skidmore said, “We do not recognise the need for this amendment. The Government have already explicitly recognised the role of the Sewel convention in the Wales Act 2017 and the Scotland Act 2016.”
- Conservative East Renfrewshire MP Paul Masterson told the Commons that Clause 11 of the bill was “not fit for purpose” and needed rewriting and replacing with a new version. Although he said he didn’t “consider this moment to be the appropriate stage in the process to demand the new drafting be brought forward before the House.” Masterson and the other Scottish Conservative MPs still voted down the amendments by Labour and the SNP.
Tuesday 5 December
House of Commons
On Tuesday the Lord Chancellor and his ministerial team faced oral questions in the House of Commons on a number of topics.
- Early advice was raised numerous times during the session by members of all parties. This follows the launch of The Law Society’s campaign to restore legal aid for early advice in housing and family cases. Read our parliamentary briefing on the campaign.
Emma Hardy MP (Labour) asked what assessment the Department has made of the cost-effectiveness of legal aid for early legal help. She noted that she had recently visited Hull’s Chamber of Commerce who raised concerns regarding the provision of legal aid. They claim that it costs the court money as so many people are representing themselves, and that the current system is a false economy.
- Chair of the Justice Select Committee, Bob Neill MP (Conservative) highlighted that changes in legal aid availability on family matters had failed in its attempt to encourage more litigants to use mediation services. He called for early legal advice to be looked at again by Government in relation to family matters.
Alex Chalk MP (Conservative) highlighted access to justice concerns and supported calls for early legal advice to be considered as part of the review into LASPO.
- Shadow Secretary of State, Richard Burgon MP (Labour) noted the Law Society’s call for early advice, and requested that the Government commission independent research to inform the legal aid review regarding the cost-benefit of early advice.
- Responding to these questions, the Minister Dominic Raab MP noted that the LAPSO review is taking place and will report back in the Summer next year. He outlined that there already is a variety of early legal help and advice services including online and the telephone support, and noted that the UK was providing more legal aid per capita than any other country in the Council of Europe.
The UK legal system after Brexit
Damien Moore MP (Conservative) and Robert Jenrick MP asked what steps the government is taking to ensure that the UK legal system operates effectively after the UK leaves the EU, and what steps would be taken when ECJ rulings were reversed. In reply, Minister Dominic Raab MP said that the UK Supreme Court would have the final say on British law and that Parliament would be able to choose which aspects of EU law it maintained.
Robert Jenrick MP (Conservative) highlighted a report from TheCityUK which had raised concerns in the financial services sector about the continuing enforceability of contracts after Brexit. Justice Minister Dominic Raab MP responded noting that the Government had made clear it is publication that it wished to see the continued recognition of both business contracts and family law.
Barry Sheerman MP (Labour) highlighted concerns of the legal sector regarding the impact of leaving the EU. Responding, Justice Minister Dominic RaabMP said he had been meeting with many people in the legal profession on the issue.
Sir Edward Davey MP (Liberal Democrat) asked whether the European Convention on Human Rights (ECHR) would continue to have jurisdiction over the UK post-Brexit. Responding, Justice Minister Dominic RaabMP said there were no plans to withdraw from the ECHR.
Martin Vickers MP (Conservative) expressed his view that the UK’s legal system would continue to be effective after Brexit. Responding, Justice Minister Dominic RaabMP agreed and said trade liberalisation arising from Brexit offered an opportunity to promote UK legal services and encourage other nations to see the UK as a hub for dispute resolution.
- SNP Justice and Home Affairs Spokesperson Joanna Cherry MP asked if the European Communities Act 1972 could only be repealed at the end of any implementation period. Responding, Justice Minister Dominic RaabMP said the Government would not pre-judge the final deal in the EU Withdrawal Bill. Following this, Ms Cherry asked if the Government would remain inside the European Aviation Safety Agency (EASA) and therefore remain under the jurisdiction of the European Court of Justice. In reply, Dominic RaabMP said Ms Cherry said she should not use media reports to try and pre-judge the outcome of the deal.
Amanda Milling MP (Conservative) asked what steps the Lord Chancellor is taking to improve the court experience for victims and witnesses, particularly around domestic violence victims. The Minister Dominic RaabMP said that £1bn was being invested to make courts more sensitive to witnesses and accessible to citizens and that they have rolled out pre-recorded testimony facilities in places and that they had announced legislation in the Queens Speech on this issue.
Jim Shannon MP (DUP) asked about support available for adult and child rape victims. The Minister Dominic RaabMP outlined that there had been £7m allocated to rape support centres and £68m to Police and Crime Commissioners.
David Morris MP (Conservative) requested attention toward improving communications in the sector and help for people to understand court ‘jargon’. The Lord Chancellor, David Lidington MP said that the court modernisation must ensure that laypeople can easily understand the process.
Tom Tugendhat MP (Conservative) asked if the Government had assessed how the online process would spare those from going through the Small Claims Court. The Lord Chancellor, David Lidington MP said the online pilots had been used by 3,000 people and believes that this had provided easy, digital access to the court system.
- Jim McMahon MP (Labour) asked why there was no data collected on non-attendance to court centres as a result of local closures or centre mergers. The Lord Chancellor, David Lidington MP said that there was a public consultation before the closure of any court centre.
Angela Smith MP (Labour), Liz Saville-Roberts MP (Plaid Cymru) and Peter Kyle MP (Labour) all asked when the government will bring legislation to tackle domestic violence issues to the house. Minister Dominic Raab MP responded each time citing that it will be introduced “shortly”.
Litigants in Person
Afzal Khan MP (Labour) asked about the rise in the number of litigants in person, and called for the government to restore legal aid in the family courts. The Minister, Dominic RaabMP responded by pointing to the support available to litigants in person and noting that the reforms to legal aid were being reviewed.
- Shadow Justice Minister Gloria de Piero MP (Labour) asked if the Government would allow domestic violence victims to claim support under the new regulations announced this week retrospectively. The regulations come into effect in January. The Minister Dominic RaabMP noted that new support would help domestic violence victims in family cases but did not make an assurance on the specific issue.
Exceptional Case Funding Scheme
Tim Loughton MP (Conservative) asked about whether the Government had any plans to review the Exceptional Case Funding (ECF) scheme for coroners’ inquests involving multiple deaths to ensure that close family members have legal representation, and asked why Legal Aid Agency had refused funding to those affected by the tragedy at the Shoreham Air Show in his constituency. The Minister Dominic Raab MP said that the guidance on ECF would be updated by the end of the year.
Wednesday 6 December
House of Commons
European Union (Withdrawal) Bill; Committee Stage (Day 5)
On Wednesday, the European Union (Withdrawal) Bill completed its fifth of eight days in Committee Stage in the Commons. The Law Society briefed a number of MPs before the Committee stage.
During the day’s debate, Clauses 10 and 12, as well as Schedules 2 and 4, were agreed to without amendment. Ministers also saw off several attempts to amend the Bill.
The amendments debated on day 5 primarily focused around the role of the devolved administrations in the withdrawal process and following our exit from the European Union.
Amendment 167, moved SNP International Affairs and Europe Spokesperson Stephen Gethins, was intended to amend Schedule 2 to confer a power on Scottish and Welsh ministers to make regulations to fix problems in retained EU law arising from withdrawal. This power would be the same as available to UK Government ministers under Clause 7. This amendment was defeated.
Shadow Brexit Minister Jenny Chapman moved New Clause 80, which was intended to ensure that any financial settlement as part of leaving the EU reflected obligations incurred by the UK during its membership of the EU, was transparent, and was approved by Parliament. This clause was defeated.
New Clause 70, moved by Independent MP Lady Sylvia Hermon, was intended to preserve the principles of the Good Friday Agreement in the EU Withdrawal Bill. The Government could not accept the clause on the grounds that the Bill could not be used to amend either the Belfast Agreement or the Northern Ireland Act 1998 and the clause was withdrawn after debate.
Exiting the European Union Select Committee Oral Evidence Session – with Secretary of State for Exiting the European Union, David Davis MP
The Secretary of State for Exiting the European Union, David Davis MP gave evidence to the Exiting the EU Select Committee on Wednesday regarding the Brexit sectoral analyses that the Department for Exiting the European Union (DExEU) supplied to the Committee. Following the Secretary of State’s session, Philip Rycroft, the Permanent Secretary at DExEU, also gave evidence to the Committee.
Key points from the session include:
Nature of impact assessments and sectoral analyses
David Davis MP confirmed that there were no formal impact assessments carried out by his Department. Instead they have compiled a series of sectoral analyses looking at the size of industries and what they consist of, as well as their involvement with European markets. These analyses are not a forecast of the impact of leaving the EU. He said the Department will do assessments to quantify the effect of different outcomes, and will assess the effect of outcomes on sectors such as financial services. He added that these will be negotiation sensitive and the Department will not publish them.
Difference between impact assessment and sector analysis
David Davis MP said throughout that impact assessments and sector analyses mean different things, and doing a sectoral analysis does not constitute an economic prediction. Several members of the Committee asked if the documents provided to the Committee were the same as the analyses given to the Cabinet. Philip Rycroft said he was confident that the Committee had all the substantive information, and the quality of it matches like for like to the starting point. Philip Rycroft said there is a formal definition of an impact assessment, as those inform the decisions taken in Parliament about legislation and regulations.
Financial services assessments
Richard Graham MP asked how an assessment could be done on the financial services sector. David Davis MP said it could be quite difficult as there is a range of potential outcomes and possible responses by the industry. The actions he said will determine the impact assessment, and the actions may alter depending on whether there will be an implementation period. He argued an impact assessment is a continuous process to help policymakers understand the consequences of actions and this can change.
David Davis MP admitted that the Department have not done a formal quantitative assessment of leaving the Customs Union, but rather they have made a judgment on qualitative issues.
Philip Rycroft said that the reports reflected where the economic interests of the devolved administrations lie, and that there has been extensive dialogue with colleagues from the devolved administrations to understand the devolved interests.
EU sector analysis
David Davis MP also said the EU were not completing a similar exercise on as large a scale, but the Commission would have consulted with individual countries.
- Asked about information regarding the impacts of Brexit on jobs and tax revenues David Davis MP said that if there are complications in exports there will be impacts on industries regionally. One aspect not dealt with in the analyses he said is the impact on tax revenue bases. The tax revenue base from the City of London he said is large and needs to be protected and this can only be done when one knows about the future deal and whether there is mutual recognition for example.
Thursday 7 December
House of Lords
A debate on ensuring regulation is balanced, cost-effective, easy to understand and properly enforced (Baroness Neville-Rolfe)
On Thursday Baroness Neville-Rolfe (Con) led a wide-ranging debate on regulation in the House of Lords, aimed at ensuring the Government ‘plans to ensure that regulation is balanced, cost-effective, easy to understand and properly enforced’. The regulation of legal services featured in the debate.
Independent regulation of the legal profession
Lord Whitty (Lab) called for there to be an independent system of regulation not ‘wedded to the professional bodies’ and said it was his hope that regulatory processes after transferring European regulations into UK law meet better regulation objectives.
Baroness Altmann (Con) said independent regulation of legal services is important to make sure markets for essential services work fairly. She noted that the legal services profession is calling for regulation to be independent of the profession, in order to address possible conflicts of interest and the perception of such conflicts. She highlighted the CMA’s study of legal services and asked the Minister when the consultation on regulatory independence will be published. The Government did not respond to this direct request during the debate.
Baroness Deech (CB) said in legal services there are too many bodies ‘jostling’ to be the main regulator, as defined under the Legal Services Act 2007, including the Legal Services Consumer Panel and the Competition and Market Authority. She said considerable costs are being generated as a result, including those from bodies supported by government grants, including the Legal Services Board, which she said ‘over-enforces and places burdens on lawyers which are passed on to their clients’. She went on to say that legal services regulation is ‘overregulated, duplicated, interfering and sometimes without regard to the good practices of the professions—under the umbrella of the Legal Services Board’.
Baroness Deech said the Legal Services Board’s position that it will aim for the complete separation of the representative bodies and the regulatory arms because the professions cannot be seen to police themselves was a ‘good principle’. She called for reform of the Advertising Standards Authority in this regard.
- In response to Baroness Deech, the Minister Lord Henley he noted that trust in the legal sector is increasing and said he suspected the rise in trust in the law may be as a result of the Legal services board.
Baroness Donaghy (Lab) highlighted that the Regulatory Policy Committee had expressed concern at the standards of impact assessments and the ‘general disregard’ for regulatory impacts on wider society. She questioned the Government’s ‘de minimis’ approach and question whether this was a deliberate act of the Government in light of Brexit and questioned whether the government will still have the opportunity to scrutinise future regulatory changes.
- In response, Government spokesperson Lord Henley said that current proposals are designed to increase scrutiny by bringing ‘significant deregulation measures into scope’ and rules are being changed to allow a more appropriate approach to be applied to assessment – as recommended by a recent Public Accounts Committee Report.
Global Legal Centre and Brexit
Baroness Deech noted that the legal profession is standing up to promote its past and future strengths and successes, with London as the choice of venue for litigation. She said the Government’s Brexit strategy needs a ‘profession whose standards and integrity are beyond doubt and which is not seen as dominated by government’. However, she said Eastern European colleagues remarked that the UK legal services sector appeared to be dominated by government regulation since the Legal Services Act and called for accountability only to be made to Parliament, not Government.
Friday 8 December
Deal reached on phase 1 of Brexit talks
Theresa May and Jean-Claude Juncker confirmed an agreement on the main principles of Brexit withdrawal on Friday, paving the way for trade discussions. The Joint Report needs to be officially adopted by EU27 leaders at the Council Summit on 15 December, a procedure which is now expected to be a formality. The European Parliament will also provide its opinion in a non-binding resolution on Wednesday 13 December. You can access the Joint Report and the Joint Technical Note on Citizens Rights.
Ireland: A deal on withdrawal terms was very close on Monday but eventually fell through with the DUP’s refusal to endorse wording which promised regulatory alignment between Ireland and Northern Ireland.
The new compromise on the Irish border is the same in principle but allows for more flexibility, giving time to the UK to find alternatives. If the EU and UK do not find a specific solution for Ireland, the default position is that “in the absence of agreed solutions, the UK will maintain full alignment with those rules of the Internal Market and the EU Customs Union which, now or in the future, support North-South cooperation, the all island economy and the protection of the 1998 Agreement (Good Friday Agreement)”.
This means that the current estimated 142 cross-Border bodies or programmes would remain in place.
- During phase II negotiations the onus will be on the UK to bring forward alternatives to the existing status quo including the EU Customs Union and Single Market. It should be noted that the term “full alignment” goes further than seeking an equivalent status and implies the adoption of EU rules.
- Additionally it is important to note the two sides have agreed to continue negotiations on Ireland in a distinct strand (”specific chapter”) of the next phase of the Brexit talks and to look at issues such as the transit of goods to and from Ireland through the UK after Britain leaves the EU.
Citizens’ Rights and Financial Settlement: The EU and the UK agreed that in the “application or interpretation” of EU citizens’ rights, “UK courts shall therefore have due regard to relevant decisions” of the European Court of Justice (ECJ) after the UK leaves the EU. The UK will also “establish a mechanism”, limited to 8 years, through which UK courts and tribunals will be able to refer specific questions to the ECJ. The UK further agreed to settle its financial liabilities and will be able to do so in annual payments rather than a lump sum.
Phase II negotiating guidelines: These will be presented and voted on (unanimously) at the Council meeting on 15 December. The draft guidelines, which have been drawn up by Michel Barnier in dialogue with Member States, have been sent to all leaders. Once adopted, Michel Barnier will draft more detailed negotiation directives which will form the mandate for further negotiations. They are expected to be adopted at the General Affairs Council meeting on 27 February 2018.
Stages of Phase II:
Transition period negotiation
: The UK have asked for a two year transition during which they will remain part of the Customs Union and Single Market. It is an EU condition that the UK will respect the whole of EU law including new laws, budgetary conditions/contributions, judiciary oversight. Within the transition period, the UK will no longer have any representation in the EU institutions. It is the view of the EU and Donald Tusk that this is the only reasonable solution and it should be agreed as soon as possible. These talks will start immediately.
Future trading relationship
: President Tusk noted that there are a number of ideas which need more clarity, such as how the UK sees its relationship after it leaves the Single Market and EU Customs Union. An early priority for the EU will be to maintain a close partnership on security and defence, for which the EU will issue additional guidelines next year.
Timeline: Under the Article 50 procedure the EU and the UK now have less than one year remaining to negotiate the final Withdrawal Agreement. The Agreement will address the terms of withdrawal agreed today, as well as provisions regarding a transition period and the main principles of a new relationship. The Withdrawal Agreement will have to be agreed in time for the Council Summit on 19 October 2018, in order to provide both sides with sufficient time to ratify the treaty.
Michael Gove and Theresa Villiers welcomed the progress that has been made. Gove described it as a “significant personal, political achievement” for May and said that any EU sceptic would have been happy had they been presented with this deal two years ago. Villiers said that she could ““certainly live with” this deal, even though there are some compromises she would rather were not there, for instance on the ECJ. However, she added that if we are going to leave on orderly terms with a good relationship, “I’m afraid compromise is inevitable.” The progress has also been welcomed by Remainers in the Conservative Party such as Anna Soubry who said the deal gets a “warm welcome from me”.
- DUP leader Arlene Foster said that as “a consequence of the engagement between the Government and our team, substantial positive progress has been made on improving the text of Monday's original draft paper.” She welcomed assurances that any alignment will be on a UK-wide basis, “ensuring that there would be no barriers to trade between Northern Ireland and our most important market in the rest of the UK.” However, she added there is still a “major debate” to be had about the nature of any regulatory alignment with the EU that may be required post-Brexit and that the DUP will “work with like-minded colleagues in the House of Commons to ensure there is “no backsliding on promises made about the integrity of the Union”.
- Shadow Brexit Secretary Keir Starmer said it was “encouraging” that ‘sufficient progress’ has now been agreed. Priority now must be to agree transitional arrangements “on the same basic terms as we have now”, meaning we stay in the Customs Union and Single Market for a “time-limited period”. He added on the Andrew Marr Show yesterday that the PM’s agreement meant that the UK would stay in very close alignment with the Single Market and Customs Union after Brexit, in terms of applying the same regulations and standards.
- Scottish First Minister Nicola Sturgeon said the move to phase two of talks is “good”, but the “devil is in the detail and things now get really tough”. She reiterated her position that staying in the Customs Union and Single Market is the “only sensible option” and that “any special arrangements for NI must be available to other UK nations.”
- However not everyone was impressed with what has been agreed. Nigel Farage said that the deal means we can “now move on to the next stage of humiliation.”
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