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Russia, court closures, legal aid, access to justice

05 April 2018

Parliament is on recess for two weeks. Both the House of Commons and Lords return on 16 April.


Last week, the Law Society's chair of Employment Law Committee Max Winthrop gave evidence to the Women and Equalities Committee on its inquiry on sexual harassment in the workplace.

The Law Society was mentioned in several Westminster Hall debates last week. In a debate on legal aid and the Birmingham pub bombings our call to widen the scope of funding for representation was referenced.

In a debate on the Justice Committee's report (and Government's response) on the implications of Brexit for the justice system, our CETA report was mentioned and quoted from.

The Law Society was also mentioned by Justice Committee Chair Bob Neill MP and by Justice Minister Lucy Frazer QC MP in a debate on the promotion of legal services after Brexit.

Ms Frazer also appeared before the House of Lords EU Justice Sub-Committee as part of its inquiry on post-Brexit enforcement and dispute resolution, alongside Exiting the European Union Minister Suella Fernandes MP. 

The European Union (Withdrawal) Bill cleared Committee Stage in the House of Lords last week, and moves to its penultimate stage, Report Stage after Easter Recess.

Last week in Parliament also included several other select committee oral evidence sessions on the UK's economic relationship with the EU, on disclosure of evidence in criminal cases, and on the proposed UK-EU security treaty after Brexit.

Last week the Law Society launched a member action for members to write to their MPs and ask them to urge the government to negotiate and secure the continued rights of lawyers to practise, establish and have rights of audience in EU member states after Brexit. We also published an overview of the work we have been doing on Brexit since Article 50 was triggered in March 2017.

This week in Parliament

Parliament is on recess this week and returns on 16 April.

Last week in Parliament

Monday 26 March

House of Commons

Russia and national security – General debate

The House of Commons held a general debate on Russia and national security.

The Prime Minister began by updating the House on the situation following the Salisbury attack, including the evidence that Russia was responsible, and the actions that the Government had been taking since.

Without giving further detail, the Prime Minister also said the Government would table an amendment to the Sanctions and Anti-Money Laundering Bill "to ensure that the UK cannot be a home for those who trade illicit finance or commit human rights abuses."

Pressing her on this point, the Leader of the Opposition Jeremy Corbyn MP asked whether this amendment would be the Government's version of Labour's Magnitsky amendment to the Bill which was blocked in February.

  • Anti-Money Laundering (AML): The SNP's Westminster leader Ian Blackford MP said his party wanted action taken on both the Magnitsky amendments and tackling the use of Scottish limited partnerships (SLPs) "as a legal means to facilitate organised crime, money laundering and tax evasion." He added that they needed to correct the fact that they had made it too easy for criminals and those wishing to launder money to do so through the vehicle of SLPs, and work collectively to drive out those who want to use the UK to "shelter ill-gotten gains."
  • Labour MP and Justice Committee member Bambos Charalambous also said closing off access to dirty money was another area they wanted to hear more from the Government, specifically on the need for greater transparency and for beneficial ownership registers to be introduced for offshore companies operating in British overseas territories.
  • Russian interference: Speaking about the systematic nature of the attacks of Russia towards the West, Labour MP Madeleine Moon urged the Government "to establish an independent Russia commission to examine the role that Russia is playing in our social media and in our financial, business, political and legal spheres." 

House of Lords

EU (Withdrawal) Bill - Lords Committee Stage (Day 10)

The EU (Withdrawal) Bill held its tenth Committee Stage debate. The full debates can be read here and here.

The key points from the session are below:

  • No Deal: Lord Jay of Ewelme (Crossbencher) tabled amendment 337 to Clause 14 of the Bill (relating to the interpretation of the Bill including provisions relating to the UK's 'exit day' from the EU), which would ensure that if there is a breakdown in the negotiations leading to a no-deal Brexit, the position should be fully and properly considered by Parliament before any final decision is taken. Speaking for the Government, Lord Callanan stated that the amendments would render key provisions in the Bill inoperable, as it would prevent the Government from making the necessary statutory changes in the event of a 'no deal' outcome. Lord Callanan further asserted that the Government was confident of achieving a negotiated outcome in the Brexit negotiations.
  • UK-wide frameworks: Lord Hope of Craighead (Crossbencher) tabled amendment 314 after Clause 11 of the Bill (relating to devolution), which would create a new clause defining UK-wide frameworks and requiring the consent of devolved administrations for these to be created. Peers argued that the amendment was necessary to ensure that the devolution settlement was respected post-Brexit. Responding for the Government, Lord Duncan of Springbank stated that this was still an area of developing policy and that the Government would consult further on the substance of the amendment.   
  • Delegated Powers: Lord Tyler (Liberal Democrat) tabled Amendment 305 to Clause 11 of the Bill. The amendment would set out official procedures by which powers would be taken from the EU and transferred to the devolved administrations. Speaking to the amendment, Lord Tyler argued that it was not appropriate for the Government to use delegated powers, without due parameters being defined by Parliament. Responding for the Government, Lord Bourne of Aberystwyth stated that the Government did not agree that it necessarily follows that secondary legislation can never be used to modify devolved competence or the devolution statutes more widely, and that this should only ever be achieved through primary legislation. However, Lord Bourne committed to consider the issue further.  
  • Devolution sunset clauses: Lord Wallace of Tankerness (Liberal Democrat) tabled amendment 311 to Clause 11 of the Bill, which would ensure that the use of delegated powers by the UK Government, when related to devolution, would cease to apply within two years of the date of the UK's withdrawal from the EU. Peers argued that the provisions were necessary to stop long-term erosion of the devolution settlement post-Brexit. Speaking for the Government, Baroness Goldie said that ministers intended to ensure accountability over the use of delegated powers, including regular parliamentary reporting. 

Tuesday 27 March

House of Commons

Court closures and reform – Westminster Hall debate

There was a short debate in Westminster Hall on court closures and reform. The debate can be read here, and a short summary is included below.

The Law Society was mentioned once during the debate, regarding the impact on legal aid firms and on police resources and other organisations that use the courts.

Introducing the debate

  • Introducing the debate, Tan Dhesi MP (Slough, Labour) placed court reform and modernisation in the context of the 40 per cent budget cut in the Ministry of Justice since 2010.
  • He noted the proposal to close Banbury Magistrates' and County Court and Maidenhead Magistrates' Court, which would have a direct impact on his constituents.
  • He said that capacity should not be the only criterion used to determine court closures, and that geographical coverage and the representation of the justice system throughout the country are also important.
  • He raised concerns regarding the lack of detail in the Government's plan to use technology in the court system, to reduce the court estate and to change the role of case officers.
  • He highlighted his worry that virtual courts may significantly increase the number of unrepresented defendants, discriminate against vulnerable defendants or those who do not speak English well, and negatively affect the relationship between defence lawyers and their clients.
  • He spoke about the issue of increased travel times as the courts estate shrinks further, and noting theLaw Society's concerns, warned of additional costs for legal aid firms and the impact on police resources and on other organisations that use the courts.
  • He called for the Minister to publish the Courts Bill, and to halt court closures until the Government's 'fit for the future' consultation takes place.

Labour's response

  • Responding to the debate,Shadow Justice Minister Yasmin Qureshi MP said that it is important to fully consider the costs and benefits of the Government's proposals. She noted that the travel time standard used to determine court location was one hour in 2010, and now it has gone up to a whole day for a return trip. She said the most vulnerable will bear the costs of this.
  • She raised concerns about the slow rate at which the closed buildings are being sold.
  • She welcomed digitalisation in courts but argued that it must come after proper consultation and protect access to justice.
  • She raised concerns at the availability for legal advice in a digital system.
  • She called for the Government to publish the Courts Bill before proceeding with proposed court closures.

The Minister's response

  • Responding to the debate, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP said that the reform programme was not about cuts and that £1 billion is being invested into the programme, and that every time a court closes and is sold off, the money goes back into the justice system.
  • She spoke about modernising justice and ensuring that the justice system works for everyone. She said the online digital court process pilot has been extremely successful.
  • Other pilots are underway on uncontested divorce and probate online. She said it is possible to make pleas for lower level offences, to respond to jury summonses and to respond to civil money claims online. She argued that these changes are making access to the justice system more efficient, quicker and easier to use.
  • She noted concerns about vulnerable people and said that they are working closely with other departments to ensure that vulnerable people are protected and are able to access justice.

Legal aid and the Birmingham pub bombings – Westminster Hall debate

There was a short debate in Westminster Hall on legal aid and the Birmingham pub bombings. The debate can be read here, and a short summary is included below.

The Law Society was mentioned once during the debate, regarding the LASPO review and the Law Society's call to widen the scope of funding for representation.

Introducing the debate

  • Introducing the debate, Richard Burden MP (Birmingham Northfield, Labour) noted the history of the case, and said that the families of the victims have had to overcome hurdle after hurdle in the pursuit of justice and to get answers.
  • He said that the debate was not about taking sides on the case, but about whether both sides should have an equal opportunity to put their case to the courts. He argued that it is in the public interest that all the arguments for and against the identification of suspects at the inquest are heard at the Court of Appeal. 
  • He criticised the Legal Aid Agency for proposing crowdfunding as a viable alternative and debated whether or not the Legal Aid Agency has discretion to award legal aid. He said that the decision to refuse legal aid for the Court of Appeal hearing does not fit with the fact that families finally won legal aid for their representation at the inquest.
  • He spoke about the LASPO review and mentioned the Law Society's call to widen the scope of funding for representation and called for situations like this to be considered as part of the review.
  • He called for public funds to be made available for the families, calling it an issue of fairness and parity.

Labour's response

  • Responding to the debate, Shadow Justice Minister Gloria de Piero MP congratulated the Birmingham MPs who have supported the families of the victims of the bombings.
  • She said that in certain cases the Legal Aid Agency may decide to waive the financial eligibility test for family members, if it can be argued that it would be unreasonable for the family to bear the full costs.
  • She raised concern regarding the Government's claim that families do not need legal aid for representation at an inquest because it is not an adversarial process, while the Government spend hundreds of thousands of pounds in public money to ensure that their side is represented at inquests. She called on the families to have the same access to the same degree of representation.
  • She called on the Minister to ask the Legal Aid Agency to review its decision.

The Minister's response

  • Responding to the debate, the Parliamentary Under-Secretary of State for Justice, Lucy Frazer QC MP noted that early legal advice for inquests is available under legal aid for those who are eligible.
  • She said that an inquest should be an inquisitorial one that focuses on establishing the facts of death. She said that participants do not always need to present legal arguments and so, in most inquest hearings, the bereaved family do not need representation to participate in the process. Most inquest hearings are conducted without the need for publicly funded representation. ​
  • However, legal aid is available for legal representation at inquests under the exceptional case funding scheme. She said that decisions are made by the Legal Aid Agency independently of Government, and that she is not privy to the details of the decision.
  • She said the Government is currently reviewing legal aid and inquests as part of its LASPO review.

House of Lords

Lords EU Justice Sub-Committee – Brexit: enforcement and dispute resolution

The Lords EU Justice Sub-Committee held an evidence session on its inquiry into Brexit: enforcement and dispute resolution. The witnesses were: Lucy Frazer QC MP, Parliamentary Under-Secretary of State, Ministry of Justice, and Suella Fernandes MP, Parliamentary Under-Secretary of State, Department for Exiting the European Union. The full session can be viewed here.

The key points from the session are below:

  • Mutual recognition of qualifications: Frazer welcomed the Government's previous references to mutual recognition of qualifications in order to protect the legal industry.
  • Influence on EU and international law: Both witnesses argued that the UK would maintain significant influence over international legal practice, highlighting the establishment of courts in Dubai and Qatar and reiterating the importance and reputation of the UK legal profession.
  • Family law: Frazer highlighted that a seamless transition to the Hague and Lugano conventions was needed and raised the importance of civil and judicial cooperation, particularly with regards to family, insolvency, and general civil law. She recognised that these were not as extensive as the Brussels I and II regulations, and that they would be improved upon domestically in due course. 
  • Court of Justice of the EU (CJEU): The witnesses reiterated that the binding nature of CJEU judgments, including direct effect and the supremacy of EU law, would come to an end following the UK's exit from the European Union. Although the CJEU's ultimate jurisdiction post-Brexit is included in Article 162 of the Draft Withdrawal Agreement, Fernandes highlighted that this had not yet been agreed, adding this would not fit with international best practice in arbitration by biasing towards EU principles and interpretations.
  • Mechanisms for dispute resolution: It was argued by both witnesses that different sectors would require distinct mechanisms at each different stage of the UK's withdrawal. A mixture of a joint committee, with representation from the EU and UK, and different arbitration mechanisms were raised as possible solutions for different sectors. It was also highlighted that citizens' rights would be separate from this and remain under the jurisdiction of the CJEU. It had not been agreed who would provide the further layer of arbitration over the joint committee that would eventually have to be set up.
  • Indirect impact of CJEU judgements: Frazer highlighted that with regards to domestic legislation there would be scope for individual judges to account for EU law where relevant. She highlighted that reciprocal arrangements were already in place and that mutual enforcement and recognition were very important moving forward.
  • Continued membership of European agencies: Fernandes accepted that the UK may seek to remain within European agencies in key sectors and would thus, accept CJEU jurisdiction. This was particularly likely in sectors such as medicines, chemicals and aviation.
  • UK representation on the CJEU: Fernandes stated that the British judge currently sitting in the CJEU would leave in March 2019 but that the UK would remain under its jurisdiction until the end of the implementation period in December 2020. Whilst Frazer admitted representation is valuable, she argued it would not affect individual cases or result in prejudice against the UK.
  • Other:
    • Fernandes admitted it was possible the CJEU would find the Withdrawal Agreement contrary to EU law but highlighted this was unlikely.
    • Fernandes reiterated that the Government was not seeking to align with the EFTA Court.
    • Both witnesses stated that the CJEU will no longer be able to rule parliamentary legislation unlawful but that the Supreme Court would maintain this capability.

Wednesday 28 March

House of Commons

Sexual harassment in the workplace – Women and Equalities Committee session

The Chair of Employment Law Committee, Max Winthrop, gave evidence to the Women and Equalities Committee as part of their inquiry into sexual harassment in workplaces.

Winthrop spoke on the panel with Mark Mansell (Partner, Allen & Overy LLP), Tamara Ludlow (Partner, Simons Muirhead & Burton LLP), Suzanne McKie QC (Founder of Farore Law) and Gareth Brahams, Chair of the Employment Lawyers Association.

The session focused on the use and possible abuse of non-disclosure agreements (NDAs).

A short summary of the session is below:

  • Asked by Jess Phillips MP about NDAs, Winthrop said you can't require people to opt-out of rights that have yet to be crystallised. He added that provisions in the Equality Act 2010 would void the types of NDAs at the Presidents Club. Winthrop also said that he was not happy with the increasing scope of NDAs and how they were being used inappropriately in employee-employer relationships.  
  • Asked by Ms Phillips whether he supported the Equality and Human Rights Commission's (EHRC) recommendation for a statutory code of practice that sets out the steps employers need to take prevent harassment in the workplace, Winthrop said that subject to further scrutiny there's a lot to support there. Gareth Brahams added that the EHRC proposal he was most against was the proposal for the public sector to ban confidentiality provisions.
  • Asked by Tonia Antoniazzi MP whether NDAs could help facilitate sexual harassment if used repeatedly, Mr Brahams said it was a common situation where the most senior person in an organisation was found to be abusing their submission.
  • In a discussion with Committee chair Maria Miller, Suzanne McKie said there was a question whether an obligation was needed to refer onto future employers allegations of harassment, as currently the only requirement was simply not to mislead others – so references could therefore be very vague. Mr Brahams pointed out that the Senior Manager Regime supplied additional requirements on those working in financial and insurance services.
  • Tonia Antoniazzi asked what potential there was for NDAs to be used to cover up instances of sexual harassment, to which Ms McKie recommended that employers be obligated to keep data given the HR function was not always effect and Mr Brahams said there could be more positive duties on employers to prevent workplace harassment. 
  • Asked by Ms Antoniazzi whether he supported the EHRC's recommendation that the Government should legislate to nullify clauses in NDAs that prohibit disclosure of future events, Winthrop said that the Equality Act 2010 meant that you can't contract out your rights before you've got them. He added that the infamous Presidents Club NDA document was "shoved under people's noses" then taken away immediately after signature. Winthrop went on to say that before it was repealed, Section 40 of the Equality Act sent a "nice clear message to employers to engage their brains before sending their employees into harm's way."

Promotion of legal services after Brexit – Westminster Hall debate

Justice Committee chair Bob Neill MP led a Westminster Hall debate on the promotion of legal services after the UK leaves the EU.

The Law Society were mentioned three times in the debate, twice by Mr Neill and once by Justice Minister Lucy Frazer QC MP.

He also referenced many of our key asks on mutual market access and civil justice co-operation.

A summary of the debate is below:

  • Legal sector's Brexit asks: Referencing our key priorities, Mr Neill opened the debate by saying that the UK was the jurisdiction of choice for the majority of commercial law contracts, litigation that follows from them, and commercial law arbitration. Fellow Committee member John Howell MP intervened to say commercial law contributed a large amount to the legal sector's annual income. Returning to his speech Mr Neill said that mutual recognition of judgments was one of the UK legal sector's key asks, and one of the things that "the Law Society, the Bar Council, the City of London Corporation, TheCityUK and others in the sector are looking for from the Government to maintain the position of UK legal services once we leave the EU." Mr Neill went on to say:
  • It is critical that UK court judgments can continue to be enforced in the courts of the EU27, and applies to areas like commercial law, but also maintenance payments for example.
  • It is to the EU27's benefit to have their court's judgments recognised and enforced in the UK. There would be mutual advantage to preserving that arrangement, and it is most important that it is done without any break in continuity
  • The UK should consider re-signing The Hague Convention as an independent party, and should seek a waiver from the EU to re-sign prior to Brexit so that there is no delay in ratification. Mr Neill also agreed with his Justice Committee colleague Alex Chalk that the "great prize" and "gold standard" would be replicating the provisions of the recast Brussels I regulation, while The Hague Convention was very much a fall-back provision.
  • There is a need for a system that allows the legal services sector to attract talent. Any immigration regime should make it possible for firms to easily move staff between offices in the EU 27 and the UK, and vice versa.
  • As well as recognition of qualifications, all existing UK lawyers practising EU law in the European Union should be able to continue to do so, and vice versa.
  • A comprehensive agreement and partnership with mutual recognition and access is needed so UK law firms don't face restrictive regulations, preventing them from providing services and involving about 30 different regimes.
  • The legal services sector is the critical under-pinner of the financial services sector, the biggest and most valuable part of the UK's service economy. It can't be taken for granted that people come to the UK because our banks are sound and dependable, our regulatory system is perceived internationally as sound and dependable, and our legal system is seen as being second-to-none sound and dependable. It is a place where people want to litigate, and want to have their contracts written in English law.  
  • UK legal services globally: Mr Neill went to call on the Government to build on the Ministry of Justice's "GREAT" campaign, and said he hoped it will be made clear that legal services, as a key British specialism and area of British excellence, will be a central part of the international drives the UK makes in the future. He added that the "the British Bar and the Law Society" had been fighting extremely hard to get access to the legal markets in India, as some common law jurisdictions adopting broadly similar laws to the UK, operated considerable restrictive practices for British law firms and lawyers operating there. ​ 
  • Action points for the Government: Mr Neill concludedthat there needs to be a specific taskforce for dealing with legal services, as there were so many people in British law firms are ready and willing to supplement the Government's in-house lawyers on policy advice. He also asked Ms Frazer whether efforts would be made to join-up the work of the Ministry of Justice's legal services working group and the Brexit Law Committee. The Minister said she would take this point forward.
  • CETA: Mr Neill said later in the debate that a CETA-type deal "simply is no good" and that "for legal services, a CETA-type deal is no deal" and "would be just as bad as the cliff edge."
  • Government response: Responding for the Government, Lucy Frazer said the legal sector's success was down to outstanding professionals, a well-established system of law and a first-class judiciary, whose expertise and impartiality is recognised throughout the world. She went on to say:
  • She hoped that in the withdrawal agreement the Government would soon reach an agreement on the protection of and mutual recognition of judgments, and on separation for cases that are pending and currently before the courts.
  • Both The Hague Convention and the Brussels Regulation are important, and we hope to secure the Hague Convention as a minimum. It is right to ensure that there will be no gap before we rejoin that convention, and we are pressing to secure that.
  • As part of the withdrawal agreement the Government have "agreed that any lawyers within the scope of the citizens' rights agreement who have become part of the host profession in the member state should remain recognised and able to practise. Last week… [the Government] agreed the terms of the implementation period, in which we will have the same rules as now. Therefore, rules on market access will continue, including on the provision of services and establishments for lawyers."
  • The UK has the opportunity to develop free trade agreements (FTAs) with third countries, which may cover legal services. But despite the fact protectionism already exists in other countries, and although few FTAs currently cover legal services, the Government hope and are ambitious to change that in the future.
  • LawTech, technology, and innovation in legal services are key to ensuring that the UK retains its world-leading status. The Government, building on success in the FinTech sector, are ensuring that new and innovative legal technologies are embraced and supported. The Government are also committed to ensuring that the UK becomes a world leader in smart contracts.
  • The Government are proactively spreading the message through its "GREAT" campaign about why English law, and the legal offering in the UK, is so strong.
  • They are also working with partners to target the countries that matter to the UK. Next month they will deliver an English law summit in Kazakhstan, "alongside the Law Society and the Bar Council in England and Wales." Legal services features prominently in the regular programme of bilateral ministerial meetings they organise, including last year with ministers from Singapore, India, Australia and China.
  • Concluding the debate, Ms Frazer said the Government's overall message was "the UK is, and will continue to be, one of the pre-eminent legal centres in the world. We will continue to be a leading player, and [are] determined to ensure that English law remains the law of choice, and that the UK continues to be the jurisdiction of choice."

House of Lords

Committee Stage (Day 11) – European Union (Withdrawal) Bill

The EU (Withdrawal) Bill held its eleventh and final Committee Stage debate. The full debates can be read here and here.

The Bill concluded its Committee stage debates in the House of Lords unamended and will begin the first of six days in Report Stage on 18th April.

It faces the prospect of increased parliamentary opposition at its Report Stage, should the Government decline to table amendments to the Bill. The Government does not have a majority in the House of Lords and peers used the opportunity of the Committee Stage debates to register issues with the legislation and give the Government the opportunity to return at Report Stage with suitable amendments. However, if the Government do not amend the Bill in areas where peers view improvement necessary, peers may push their own amendments to a vote.

Areas which peers have expressed discontent with the Bill as currently drafted include: the use of delegated powers to transpose retained EU law into UK legislation; the lack of input for peers in the role of Sifting Committees on Statutory Instruments (SIs); and preserving the devolution settlement post-Brexit.

The key points from the session are below:

  • CJEU: Lord Goldsmith (Labour) spoke to his amendment 358 to Clause 19 of the Bill, which would ensure that provisions for retained EU law and the role of the European Court of Justice (CJEU) only ends after transitional arrangements conclude. Speaking to his amendment, Lord Goldsmith stated that the amendment would provide legal clarity for the UK given the CJEU will continue to give references or preliminary rulings for UK courts before the end of the transition period. Speaking for the Government, Lord Keen of Elie responded that the purpose of the Bill is to ensure that there is a functioning UK statute book regardless of the outcome of negotiations, but conceded that the Government intended for a strictly time-limited role for the CJEU in a transition period.
  • Devolution: Lord Wigley (Plaid Cymru) spoke to his amendment 358A to Clause 19 of the Bill, which would require the Government to account for the replacing of current EU funding for Wales. Lord Wigley argued that the amendment was necessary to ensure that Wales did not detrimentally suffer as a result of the UK's withdrawal from the EU, due to the significant amount of EU funding that Wales currently receives. Responding for the Government, Lord Bourne of Aberystwyth stated that the Government intended for the UK participate in 2014 to 2020 EU funding programmes until their closure and will consult further on post-Brexit funding arrangements.
  • EU Citizenship: Lord Wigley (Plaid Cymru) spoke to his amendment 358B to Clause 19 of the Bill, which would require the Government to adopt as a negotiating objective continued EU citizenship for UK citizens. Speaking to the amendment, Lord Wigley argued that associate EU citizenship is a model that the UK could adopt and pursue, to allow UK citizens the ability to continue to enjoy the rights and freedoms they currently do. Speaking for the Government, Lord Keen stated that pursuant to Article 20 of the EU, EU citizenship is an addition to the citizenship of a member state.

Thursday 29 March

House of Commons

Brexit implications for justice system – Westminster Hall debate

Justice Committee chair Bob Neill MP led another Westminster Hall debate on the Justice Committee's report on the implications of Brexit for the justice system, and the Government's response to the report.

The Law Society were mentioned once in the debate by Labour MP Bambos Charalambous, who referenced our conclusion that a CETA-style agreement "is essentially a 'no deal' outcome for the legal services sector...[and] would lead to a lack of legal certainty which would affect business confidence and have a negative wider impact on the UK economy". He also echoed our key arguments on the importance of continuing mutual market access and rights of audience.

Opening the debate and discussing the Government's response to his Committee's report, Neill said his objective was to press the Government on the need for more urgency, and to be more precise and specific about exactly how it would deal with Brexit issues affecting the justice system. He added that the Committee were concerned that the Government's response was "long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable."

Neill also referenced many of our key arguments on Brexit, including the economic position of legal services and the jurisdiction being a global legal centre.

Summary of the debate:

  • Impact on judiciary and operation of the courts: Neill said the Government needed urgently to find a means where the judiciary's practical views and experience were genuinely fed in to those negotiating, for example, on the future relationship with the European Court of Justice (CJEU) and on dealing with retained law. He added that the Committee needed clarity on the Government's position on the CJEU and retained law.

On the CJEU, Neill said the UK needed to be realistic that dispute resolution processes would required for continuing some partnership arrangements. He added that the desire to displace any role for the CJEU would create difficulties for the Government, but that there were some limited areas, such as interpreting specific matters of financial services and data regulation, where there might be sense in making a pragmatic compromise rather than setting up ad hoc arbitral mechanisms such as tribunals.

Conservative MP Victoria Prentis asked what work had been carried out to examine the success of joint committees established as part of free trade agreements, such as in the EEA and NAFTA agreements.

Yasmin Qureshi said Labour's view was that "a shared court-like body to oversee disputes and enforce rights and protection" was needed, and that it was important that there is an independent court to oversee the new UK-EU agreement. She declined to give a direct answer to Neill's question of whether Labour ruled out participating in the EFTA Court.

Neill also said there was real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill, refencing the comments of the President of the Supreme Court that the clause's drafting was "very unhelpful" to UK judges. Conservative MP Alex Chalk agreed that judges did not want to be dragged into the political arena and that they deserved the protection of knowing exactly what they are required to interpret.

  • Criminal justice and judicial co-operation: Supporting the Prime Minister's intention of securing an ongoing agreement for sharing in police, judicial and security co-operation, Neill reiterated that the UK needed to be realistic. He said the data arrangements would need to be aligned if the UK was to benefit from things like the European criminal records information exchange system, the work of Europol and the information exchange critical to the pursuit of terrorism and organised crime. This would mean following the EU27's data regulation and any subsequent jurisprudence that touches on this.

Continuing on criminal legislation and criminal law, Labour MP David Hanson asked the Government specifically "how, when and what progress" had been made on its aspiration to co-operate with the EU for criminal matters, and what discussions there had been, when they would publish their views and when agreement would be reached on the new arrangements for the legal framework on security, law enforcement and criminal justice between the UK and EU.

Yasmin Qureshi said that co-operation through case-by-case contacts or bilateral agreements could be more cumbersome after Brexit, and posed several questions to the Government including:

  • Whether it would secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European Arrest Warrant (EAW)
  • What assessment it had made of the impact on victims if there were no EAW in place after Brexit, and whether there would be a gap in effective extradition agreements
  • What plans it had to replace or fill the gaps left by leaving Europol, Eurojust and the European Public Prosecutor
  • Civil and family justice co-operation: Neill said a firm arrangement for the mutual recognition and enforcement of judgments was needed, particularly for the commercial litigation sector and for those who have ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries.

Yasmin Qureshi asked the Government if they shared her party's concern that cross-border divorce and child custody disputes could become much more difficult unless the UK secured effective judicial co-operation arrangements with the EU after Brexit.

  • Mutual market access: Referencing the economic contribution of the sector, Labour's Justice spokesperson Yasmin Qureshi asked which measures the Government was taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by EU27 law firms to use Brexit to win clients from UK competitors.
  • Government response: Responding for the Government, Lucy Frazer QC MP answered the Committee's point that the Government should prioritise and separately negotiate EU-UK co-operation on criminal justice by quoting from the Prime Minister's Munich speech that the UK was "unconditionally committed to maintaining" Europe's security now and after our withdrawal from the EU because "our first duty" as a nation is "to protect our citizens."

On commercial law, Ms Frazer reassured the Committee that the Government was incorporating the Rome I and Rome II regulations into domestic law through the EU (Withdrawal) Bill. She said the Government hoped to ensure mutual recognition and enforcement in the withdrawal agreement for cases already started before Brexit. She reminded the Committee that their recommendations and the Government's ambitions were the same on:

  • maintaining the UK as a first-class commercial law centre
  • protecting choice of law, and mutual recognition and enforcement
  • replicating the recast Brussels I Regulation and remain a party to the Lugano Convention and The Hague Convention.

On competition from other jurisdictions and the Paris court, Ms Frazer said that the UK is expanding its judicial offering and seeing courts being established in Dubai, Qatar and Kazakhstan.

On Clause 6 of the EU (Withdrawal) Bill, Ms Frazer quoted from Lord Keen, who said clearly that the Government have heard the views expressed by peers in the Lords, and that the Government will return to that point.

On security partnerships, Ms Frazer said the Government wanted an ambitious deal and that there were many examples of international agreements between Europol and other third countries, such as the US.

International Trade Questions

International Trade Questions took place in the House of Commons.

The key points in the session were:

  • Future FTAs: Asked by Liberal Democrat MP Christine Jardine what steps the Government would take to facilitate parliamentary scrutiny of future trade agreements (FTAs), Trade Minister Greg Hands MP said the Government were currently designing the UK's future FTA policy and no decisions had been taken given stakeholder consultation was continuing. Responding to points raised by other Opposition MPs, Greg Hands assured the House that Ministers engaged frequently with the devolved administrations on what future trade policy might look like, and that they and Parliament would work closely with the Government to ensure their voices were heard on future trade deals.
  • Preparations for future FTAs: Asked by two Conservative MPs what assessment they had made of the potential economic benefits of securing trade agreements with non-EU countries after Brexit, Hands said the Department for International Trade (DIT) has established 14 trade working groups and high-level dialogues with key trade partners beyond the EU to explore the best ways of progressing our trade and investment relationships.

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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