This week parliament continues to hold evidence sessions on the impact of Brexit and the EU (Withdrawal) Bill, including the Secretary of State for Exiting the EU giving evidence to the EU Lords Committee on the impact of a no deal. Oral Justice Questions and Exiting the EU Questions will also take place on Tuesday and Thursday respectively.
The government has also announced that the EU (Withdrawal) Bill will return to the House of Commons on the week commencing the 14 November. Read our parliamentary briefing for the previous stage of the Bill. We will soon publish our briefing for the Committee stage debate.
Last week, the Lord Chancellor gave evidence to the Justice Select Committee on the work of his department. In this session, the Lord Chancellor confirmed that the Ministry will shortly launch its post-legislative review of LASPO. He emphasised that there are financial limits on what he can do and will be looking for ways to use finite resources to the best possible effect.
Lidington also clarified that the government still plans to publish the Civil Liability Bill but the timing will be dependent on EU legislation as this take priority. The Lord Chancellor confirmed the Ministry of Justice will increase the small claims limit for personal injury. He stated that road traffic accident claims up to £5,000 ‘are not cases where it ought normally to be necessary to have legal representation’. We expressed concern in our press statement on the session.
In an evidence session on the EU (Withdrawal) Bill, Exiting the EU ministers also confirmed that separate legislation will be needed for any transitional arrangement between the UK and EU.
This week in parliament
Monday 30 October
House of Lords
- Data Protection Bill [HL] – Committee Stage (Day 1)
Tuesday 31 October
House of Commons
House of Lords
- Financial Guidance and Claims Bill – Report Stage (Day 2)
- Oral questions on legislation to require letting agents to join a registration scheme – Baroness Hayter of Kentish Town
- EU Lords Committee – Brexit: deal or no deal. Witnesses include
- The Rt Hon. Lord Darling of Roulanish, Former Chancellor of the Exchequer
- Rt Hon David Davis MP, Secretary of State, Department for Exiting the European Union
Wednesday 1 November
House of Commons
- Justice Select Committee – pre legislative scrutiny: draft personal injury discount legislation. Witnesses include:
- Lord Keen of Elie QC, Ministry of Justice spokesperson
- Richard Cropper, Personal Financial Advisers
- Brett Dixon, President, Association of Personal Injury Lawyers
- Professor Victoria Wass
- Martin White, Institute and Faculty of Actuaries
- Huw Evans, Director General, Association of British Insurers
- Emma Hallinan, Director of Claims and Legal, Medical Protection Society
- David Johnson, The Forum of Insurance Lawyers
- Communities and Local government – Housing need and the National Planning Policy Framework. Witnesses include:
- Alok Sharma MP, Housing Minister, Department for Communities and Local government
House of Lords
- Sanctions and Anti-Money Laundering Bill [HL] - Second Reading
- Constitution Committee – EU (Withdrawal) Bill. Witnesses include:
- Lord Neuberger, former President of the Supreme Court
Thursday 2 November
House of Commons
- Exiting the EU Oral Questions
House of Lords
- EU Internal Market Sub-Committee - Brexit: competition. Witnesses include:
- Margot James MP, parliamentary Under Secretary, Department for Business, Energy and Industrial Strategy
- Chris Blairs, Deputy Director, Competition Policy, Department for Business, Energy and Industrial Strategy
- Bridget Micklem, Deputy Director, State aid policy, Department for Business, Energy and Industrial Strategy
Last week in parliament
Monday 23 October
Tuesday 24 October
Wednesday 25 October
House of Commons
Lord Chancellor gives evidence to Justice Select Committee
The Lord Chancellor and senior officials gave evidence on the work of their department to the Justice Select Committee. During the session the Lord Chancellor outlined his key priorities as:
- Strengthening and upholding the UK’s “world-class” courts and tribunals system, including making the judiciary more representative and keeping court procedures accessible and up to date with new technology. He also wants to keep legal services an important part of the UK economy, and ensure the country remains an international destination of choice for legal action.
- Holding and supervising people safely within the justice system and reduce the likelihood of reoffending, given his disappointment with the current rate.
Other key points from the session included:
Access to justice - Lidington said that the government will launch its post-legislative review of LASPO in the near future. They will be publishing both the government’s own post legislative assessment of how it has worked in practice and will invite representations on what changes might be made for the future. He emphasised that there are financial limits on what he can do and will be looking for ways to use finite resources to the best possible effect.
Litigants in person - Lidington took on board comments by John Howell MP that the increase in numbers of litigants in person could mean cases that could be solved quickly take much longer. He said he was willing to look at this kind of argument that money could be saved in the long term if legal advice is given earlier as part of the LASPO review.
Employment tribunal fees - The MoJ would “take a step back” and consider its approach to fees in the light of the judgment, he said. His main takeaway from the Supreme Court’s decision on the UNISON case is that fees are a reasonable way of contributing to running costs but the government when setting fees must pay attention to access and affordability. Lidington accepts that the balance has to change, and said that the next step is thinking what the new fees should be in light of the decision. On the refund scheme for fees, the witnesses said that they are using a two-stage process, including using court records to write to people that paid fees and working with trade unions such as UNISON.
Small claims limit - Lidington confirmed that he still intends to bring in £5k small claims limit for road traffic accident claims. He argued that the higher level for RTA is because of the problem with fraudulent claims for whiplash injuries and the costs of contesting these claims or settling out of court is leading to an increase in motor insurance premiums for everyone. He said this was comparable with the reforms the government is suggesting for holiday sickness claims. Lidington argued that for these cases it is not normally necessary for a person to have legal representation as they are not so complex.
Civil Liability Bill - Asked when this would be published, Lidington said he was in “constant conversations” with business managers about opportunities for a legislative slot, but that priority has to go to EU exit legislation because of the time limit of Article 50, so other domestic bills have to be fitted in around the needs of the European legislative programme.
Court reform - Lidington argued that one of the advantages of the changes through the court digitalisation programme is that certain types of fairly simple litigation will be more accessible to individuals.
Flexible operating hours pilot - Despite criticism from the Bar, Lidington still thinks this should be piloted to test whether the criticism is valid or not. However, government is publishing an evaluation framework and methodology before starting on the pilots, so that critics and supporters can see before the start what the criteria will be that government will use to assess the outcome. Lidington is proposing to start the pilots in February next year.
GREAT campaign - Lidington defended the campaign against criticism that it was too focused on England and not on Scotland, saying that the stronger the UK sector is in terms of legal services, the more international legal business can be done within the UK, the more that will benefit Scotland as it will benefit cities across England and Wales. He also gave assurance that the Scottish legal sector will be protected in the process of UK exit from the EU.
The Law Society responded to the Lord Chancellor’s session. Read our press release.
Brexit Secretary gives evidence to the Exiting the EU Select Committee
Secretary of State for Exiting the EU, David Davis MP, gave evidence to the Exiting the EU Select Committee. The key points from the session were:
Vote on the final deal - Coverage of the session was dominated by David Davis’ comments that the UK parliament might not get to vote on the final Brexit deal until after the UK has left the EU. However it was clarified by a spokesperson that the UK is hopeful of reaching a deal by October 2018 and giving both Houses a vote on the final deal before the European parliament votes, and therefore before the UK leaves the EU.
Transitional arrangements - Davis stated that it was the government’s intention to strike a transition agreement before the end of Q1 in 2018. However, he said that Theresa May was right to tell MPs on Monday that a transition deal would not be agreed until more is known about the future trade relationship, which wouldn’t be tied up by March 2019. He was hopeful that a discussion on the implementation period would start at the first meeting of the consequent round of negotiations. When pressed if there would be a point of time when DExEU would take the decision that there is no time to make a trade deal before March 2019, would Davis agree a two year stand still that would give the UK time to finalize an FTA, Davis said that doing that would be very disadvantageous.
Citizen’s rights - Davis said the fundamental aspect of negotiation is still the role of the ECJ, where the UK thinks it has a solution. He said other issues still being negotiated are those such as family rights and professional qualifications.
ECJ - Davis said that the UK wanted an alternative arrangement on ECJ jurisdiction by the end of the transition or implementation period, but acknowledged further discussions were needed with the Commission on this. When Hilary Benn (Lab) asked if ECJ jurisdiction would remain during the transition, Davis said the UK has not yet heard from the Council on this and the Council will come to a conclusion in the next months.
Final deal - When asked if the CETA agreement is what the UK government wants Davis said it was not as May wants to look for a bespoke agreement. CETA contains little on financial services and services in general. The UK is looking for tariff free access for goods and, as much as possible, free access for goods and services without non-tariff barriers.
No deal - Davis said ‘no deal’ needed to be an option throughout. On whether the government is preparing adequately for ‘no deal’ Davis said that it is. He said it was not easy to do, but it was achievable and would require a lot of work. Davis said there were various sorts of ‘no deal’ situations. One was falling back on World Trade Organisation (WTO) arrangements but having a bare bones deal on some other aspects like nuclear, aviation and data, and then there is the complete inability to agree and he said this was not very likely at all.
Existing trade agreements - Davis said the UK would seek to maintain them, and look at grandfathering. He said that according to Liam Fox some of the bigger nations are interested in doing this and Canada for example has said the UK could continue to be a part of the Comprehensive Economic and Trade Agreement (CETA) with them after Brexit. He said Japan had also signalled they would be happy to agree to this.
Financial services - Stephen Crabb (Con) asked Davis about American banks already making some decisions on contingency plans and buying office space in other European countries, and if this reflected that the transition period was a wasting asset. Davis said that if he was the CEO of a bank, he would look at the Council and the Prime Minister’s Florence speech and use these to assess the likelihood of a transition and if he was in this position he would assess the likelihood of a two-year transition as high. He said his advice to banks would be to save their money now. Davis argued there would be continuity for financial services.
Thursday 26 October
House of Commons
Exiting the EU ministers give evidence on EU (Withdrawal) Bill
Steve Baker MP (parliamentary Under Secretary of State, DExEU) and Robin Walker MP (parliamentary Under Secretary of State, DExEU) gave evidence to the Exiting the EU Select Committee on the European Union (Withdrawal) Bill on Thursday. The key points were:
Legislating for transitional arrangements - Baker said the government is planning separate legislation on the transitional arrangement the UK will have when it leaves the EU. He confirmed that the EU (Withdrawal) Bill currently making its way through parliament would not include transition, telling the committee that a separate law will be brought forward outlining the details of this period.
Committee Stage of EU (Withdrawal) Bill - Baker confirmed committee stage will begin on 14 November and last for a minimum of eight days. Baker said the Bill must pass. If it fails to do so, “there would be holes in the statute book. The result would be that the statute book would not function as intended."
‘No deal’ scenario planning - Baker refused to confirm whether or not the Prime Minister had read the documents that map out the implication of a no deal scenario, only noting that she is well informed. He added that a “group of experts” had read the documents.
Statutory instruments - Baker estimated that between 800-1,000 statutory instruments will need to pass for exit day. Baker said he expects a majority of the statutory instruments to merit only the negative procedure, as they are technical changes.
Citizens’ rights - Walker thinks it unlikely that citizens’ rights will be dealt with under the powers of the EU (Withdrawal) Bill.
Data protection - Walker said the government wants to ensure that the data protection arrangements are put on a firmer footing, but it is not something the government can legislate for at this stage.
Friday 27 October
Lords ministerial reshuffle
A small government reshuffle took place on Friday. Of interest to the profession, the following Lords ministerial changes took place:
- Lord (Martin) Callanan has been announced as Minister of State for Exiting the EU. He replaces Baroness Anelay who resigned for health issues.
- Lord Henley has been appointed as parliamentary Under Secretary for the Business, Energy and Industrial Strategy. He is a barrister and is likely to have responsibility for professional and business services.
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