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Spring Statement, early advice and LASPO

14 March 2018

Yesterday the Chancellor Rt Hon Phillip Hammond MP delivered the Spring Statement. 


As expected, no major tax or spending changes were made in the Statement, instead the Chancellor gave an update on the overall health of the economy, the Office for Budget Responsibility (OBR) forecasts and on progress made since the Autumn Budget 2017. However, the Chancellor did announce a number of tax-related consultations. Last week the Law Society outlined some areas for HM Treasury ahead of the Spring Statement and in preparation for the Autumn Budget.

Last week the Lord Chancellor Rt Hon David Gauke MP gave evidence to the House of Commons Justice Select Committee on the workings of the Ministry of Justice and the role of Lord Chancellor. In giving evidence, he confirmed that early advice would be looked at as part of the LASPO review but didn't want to be drawn into talking about how they would run the review. The Lord Chancellor said the summer recess deadline for the review was ambitious, and said he wanted to 'look at whether the deadline is deliverable'. He said it was likely that the deadline is likely to be extended but did not give an exact date.

The Brexit Secretary Rt Hon David Davis also faced questions on the powers of the Court of Justice of the European Union (CJEU) during the transition period as part of its inquiry into 'EU Withdrawal'. He said that during the transition period British courts will have the right to ask the CJEU for advice, but whether the courts follow this advice is up to UK courts

The EU (Withdrawal) Bill continued its passage through the House of Lords at Committee Stage and will do so again this week. The Bill remains unamended, and peers are yet to push any amendments to a vote. The Law Society will continue to brief peers throughout the passage of the Bill.

Following on from the Second Reading in the House of Commons last week, the Data Protection Bill now be debated at Committee Stage. The former Justice Minister (and now Housing Minister) Dominic Raab MP also gave evidence to the Ministry of Housing, Communities and Local Government.

This week in Parliament

Monday 12 March

House of Commons

  • Housing, Communities and Local Government Questions
  • Financial Guidance and Claims Bill [Lords] – Report stages
  • Housing, Communities and Local Government - Oral Evidence Session on MHCLG Housing Priorities: Dominic Raab MP, Minister of State for Housing and Heather Wheeler MP, Minister for Housing and Homelessness to give evidence.

House of Lords

  • Committee Stage – Day 6 – European Union (Withdrawal) Bill

Tuesday 13 March

House of Commons

  • Spring financial statement by the Chancellor of the Exchequer
  • Westminster Hall debate - Rights of victims of crime - Alex Sobel MP
  • Public Bill Committee - Data Protection Bill [Lords] Day 1
  • Business, Energy and Industrial Strategy Questions

Wednesday 14 March

House of Commons

  • General Debate – European Affairs – Day 1

House of Lords

  • Committee Stage – Day 7 – European Union (Withdrawal) Bill

Thursday 15 March

House of Commons

  • Exiting the European Union Oral Questions
  • General Debate – European Affairs – Day 1
  • Public Bill Committee - Data Protection Bill [Lords] Day 2

Spring Statement

The Chancellor of the Exchequer Philip Hammond MP presented his Spring Statement to Parliament this afternoon. The Law Society made a written submission to the Treasury before the Spring Statement and we will continue to engage with them on some of the consultations below in the run-up to the Autumn Budget later this year.

Early on in his speech Mr Hammond said the country was facing the future with unique strengths, adding "our legal system is the jurisdiction of choice for commerce" and "we host the world's most global city, and its international financial and professional services capital." He also said, "our companies are in the vanguard of the technological revolution."

As expected no major tax or spending changes were made in the Statement, instead the Chancellor gave an update on the overall health of the economy, the Office for Budget Responsibility (OBR) forecasts and on progress made since the Autumn Budget 2017. However, the Chancellor did announce a number of tax-related consultations (see below).

The following announcements were made:

  • Growth forecasts: The economy grew by 1.7% in 2017, up from the previous forecast of 1.5%, and 1.5% next year, up from the November forecast of 1.4%. Growth will be 1.4% this year, 0.1% higher than forecast, with the forecast for 2019 and 2020 unchanged at 1.3%.
  • Economic data: Manufacturing has had the longest period of expansion in 50 years. Employment has increased by 3 million since 2010, which is the equivalent of 1,000 people finding work every day. The unemployment rate is close to a 40-year low. There is also a joint record number of women in work – 15.1 million. The OBR predict there will be over 500,000 more people in work by 2022. The OBR expect inflation to fall over the next 12 months, and wages to rise faster than prices over the next five years.
  • Public finances: The UK's public finances have reached a turning point, with borrowing down and the first sustained fall in debt for 17 years. Borrowing is on course to reach 0.9% in 2022-23 and is set to be used only for long-term capital spending in 2018-19. The public debt is set to peak at 85.6% of GDP in 2017-18, then fall every year to reach 77.8% in 2022-23. Borrowing has fallen by three-quarters since 2010. In 2009-10 the UK borrowed £1 in every £4 that was spent. The OBR expect that we will borrow £1 in every £18 this year. Debt will start falling as a share of GDP next year.
  • Brexit preparations: Over £1.5 billion is allocated to departments and devolved administrations to prepare for Brexit in 2018-19. It is part of the £3 billion to be spent over two years announced at Autumn Budget 2017.
  • Progress since Autumn Budget 2017: The Government are working with 44 areas on their bids into the £4.1 billion Housing Infrastructure Fund, the Housing Growth Partnership, which provides financial support for small housebuilders, will be more than doubled to £220 million. London will receive £1.67 billion to start building a further 27,000 affordable homes by the end of 2021-22. An estimated 60,000 first-time buyers have benefitted since the Autumn Budget abolished stamp duty for first-time buyers of homes under £300,000.
  • Business rates: At Autumn Budget 2017 it was announced that business rates revaluations will take place every three years, rather than every five years, following the next revaluation. The Spring Statement 2018 announces that the next revaluation, currently due in 2022, will be brought forward to 2021. This will mean businesses can benefit from the change to three-year revaluations earlier, with the first taking place in 2024.
  • Transport: £1.7 billion was announced at Autumn Budget 2017 for improving transport in English cities. Half of this was given to Combined Authorities with mayors. The government is now inviting bids from cities across England for the remaining £840 million.
  • Improving the UK's digital connectivity: Autumn Budget 2017 launched a £190 million Challenge Fund to help roll out full-fibre to local areas – providing the fastest, most reliable broadband to more homes and businesses. The Spring Statement 2018 allocates the first wave of funding, providing over £95 million for 13 areas across the UK.
  • Inviting views on future changes to the tax system: To ensure multinational digital businesses pay a fair share of tax, the Government set out its thinking on how the tax system can change to give a fair result for digital businesses. To support upskilling and retraining, the Government are also seeking views on extending the current tax relief to support self-employed people and employees when they fund their own training. Mr Hammond also announced consultations on a series of future policies:
  • A reduction in tax on for the least polluting vans to "help the great British white van driver go green"
  • A possible tax on single use plastic
  • A new VAT collection mechanism for online sales to ensure that the VAT that consumers pay "actually reaches the Treasury"
  • How online platforms can help their users to pay the right amount of tax
  • A call for evidence "on whether the use of non-agricultural red diesel tax relief contributes to poor air quality in urban areas"
  • Inviting cities across England to bid for a share of £840m to deliver on "local transport priorities".
  • A plan to make the least productive businesses learn from the most productive
  • Measures to end late payments for firms
  • The future of cash and digital payments.

Last week in Parliament

Monday 5 March

House of Commons

Data Protection Bill Second Reading

The Data Protection Bill received its Second Reading in the House of Commons. The Law Society briefed MPs ahead of this debate. The Law Society received two mentions, including from Sir Edward Davey MP (Liberal Democrat) who read out specific examples from the Law Society's briefing on the impact of the Bill's immigration exemption.

  • The immigration exemption - Scottish National Party, Liberal Democrat and Labour MPs issued concern about the Bill's provisions on the UK's derogation from the GDPR for the purposes of effective immigration control. Brendan O'Hara (SNP) said 'we will definitely seek to 'challenge paragraph 4 of part 1 of schedule 2' (i.e. the exemption) which he says is effectively an immigration exemption that permits the Government to collect and hold data without subject knowledge. He went on to say that under this exemption, 'the Government will remove any obligation they have under data protection law to inform an individual that their data has been transferred to the Home Office for immigration control purposes.'
  • In response to points made by these MPs, the Digital Minister from the DCMS Margot James MP said Government are not seeking a blanket exemption, but something that can be applied only when complying with a certain right would be likely to prejudice the maintenance of effective immigration control. She went on to say that every request to exercise a right under the GDPR would still have to be considered on its individual merits, and the rights of appeal required by the GDPR remain in place. The Labour Party and the SNP have since tabled a joint amendment relating to this issue specifically.
  • Brexit - Shadow DCMS Secretary Tom Watson MP (Lab) confirmed the party will be seeking more information from the Government 'than was forthcoming in the Bill's passage in the House of Lords' as to how we will allow continuous data flows once Britain is no longer a member of the EU and, in the EU's terms, a "third country".

The Bill is currently being debated at Committee Stage in the House of Commons.

House of Lords

EU (Withdrawal) Bill – Committee Stage day 4

The EU (Withdrawal) Bill had its fourth day of Committee Stage debate in the House of Lords. The Bill progresses unamended, after all amendments discussed were withdrawn

The key points on the debate were:

  • Family law: Baroness Sherlock (Lab) tabled a new clause on the maintenance of rights in the area of family law post-Brexit, and spoke to a number of other related amendments tabled in her name alongside this. The amendments were probing amendments on the problems facing international family law post-Brexit. Responding on behalf of the Government, Lord Keen said that as part of the UK/EU future partnership, the Government wants to agree a clear set of coherent common rules about: which country's court will hear a case in the event of a dispute (choice of jurisdiction); which country's law will apply (choice of law); and a mutual recognition and enforcement of judgments across borders. He stressed that reciprocity is key and that the current rules on which the UK hopes to model a new agreement provide a legal route to resolving what are often difficult and intractable problems. The UK will be taking steps to engage with the council on The Hague Conventions so that it can become an individual signatory on the convention, and are mindful of a potential three-month time lapse in the process of negotiation. Lord Keen also ensured the House that the Government is intent on negotiating on the Brussels conventions, adding that Brussels IIa is an improvement on the Hague conventions and that there may be further negotiation and conclusion over this after Brexit. The Government wants to take into consideration developments in the law so that there is reasonable alignment and the basis for reciprocity.
  • Supremacy of EU law: Lord Pannick (Crossbench), Baroness Taylor (Lab), Lord Norton (Con), and Lord Beith (Lib Dem) – all members of the Lords Constitution Committee – moved their amendments to Clause 5 that would remove references to the principle of supremacy and ensure that all retained EU law is treated as primary legislation, enacted on exit day, following recommendations made in that Committee's report on the Bill. Responding on behalf of the Government, Lord Keen (Advocate General for Scotland) argued that the Bill as currently drafted strikes the right balance between ending the supremacy of EU law and maintaining coherence and continuity in the way the statute book functions, and that it is unclear how these amendments would work in practice, with a 'one-size-fits-all' approach inappropriate in this area.
  • Francovich principle: In response to an amendment moved by Lord Davies (Lab), Lord Keen acknowledged that the right in domestic law to damages in accordance with the rule in Francovich is removed as at exit date, and that while there is a proviso in the Bill in respect of claims for Francovich damages which have been raised prior to exit date, there is a potential lacuna that there may be accrued rights as at exit day where no claim has been made. He said that the Government is open to addressing this issue, and will be determining its position in time for report stage, however he would not commit to the Government bringing forward an amendment at this stage.

Tuesday 6 March

House of Commons

Justice Oral Questions

The Justice Ministers took oral questions in the House of Commons. The key points discussed were:

Brexit

  • SNP Justice and Home Affairs Spokesperson Joanna Cherry MP (SNP) asked whether the EU (Withdrawal) Bill should include continuity clauses to allow British law to keep pace with European law and what was being done to ensure that the rights of the European Charter of Fundamental Rights would continue to apply for all British citizens. Responding, The Lord Chancellor, the Rt Hon David Gauke MP said that Parliament should decide whether or not to adopt future European law and said that the UK already had adequate legal protections for citizens' rights.
  • Jeremy Lefroy MP (Con) noted that Brexit will cause additional pressure on legal services and asked what additional resources have been allocated to the Ministry of Justice. The Lord Chancellor, the Rt Hon David Gauke MP, noted that the Treasury have provided an extra £3bn for Government departments, and that they are in discussion with the Treasury on what allocation will be made to the Justice System.
  • Stephen Hammond MP (Con) asked about the impact of Brexit on the export of professional and legal services. He asked about arrangements for the mutual recognition of standards and qualifications. The Lord Chancellor, the Rt Hon David Gauke MP, acknowledged that the recognition of qualifications is important for UK nationals. He noted that mutual recognition of professional qualifications will continue into the next phase of negotiations.
  • Drew Hendry MP (SNP) discussed the Scottish government's EU Continuity Bill. He called for Clause 6 of the EU Withdrawal Bill to allow UK courts to consider the judgments of the European Court of Justice. Responding, The Lord Chancellor, the Rt Hon David Gauke MP said the decisions of the ECJ would continue to effect Britain after Brexit, and suggested the UK may need to look to ECJ decisions after Brexit. However, he emphasised that the UK Parliament would remain sovereign and be able to ignore decisions if it so chose.

Early Advice

  • Kerry McCarthy MP (Lab) asked about whether the Government has considered the cost effectiveness of restoring early legal advice, and cited figures from the Citizens Advice Bureau which proved that for every £1 spent on early advice on housing, the state would save £2. Justice Minister, Lucy Frazer QC MP, said that Kerry McCarthy MP was right to highlight the importance of early legal advice, and that the Ministry of Justice spent £100m on early advice for civil cases in the last year. She noted the telephone hotline which can provide early legal advice, and the availability of legal aid for early advice in some areas. She noted that the issue will be considered in the upcoming review of LASPO.

LASPO

  • Eleanor Smith MP (Lab) asked whether legal aid provision for unaccompanied children will be considered as part of the LASPO review. Justice Minister, Lucy Frazer QC MP, said that all changes made under LASPO will be considered by the review.
  • Stuart McDonald MP (SNP) asked whether instead of an inhouse review of LASPO, why the Government will consider following the Scottish Government's example and have an independent review which has delivered greater scope and lower costs. Justice Minister, Lucy Frazer QC MP, responded by noting that as part of the review they will be inviting independent experts to give evidence.

Court closures

  • In response to questions on court closures, The Lord Chancellor, the Rt Hon David Gauke MP explained that maintaining access to justice is a key priority, and that where court closures are considered the impact on access to justice is also assessed. Courts are only closed after full consultation and careful consideration. He argued that online courts will make access to courts easier.
  • Ruth George MP (Lab) raised a concern on behalf of her constituents, who will now be required to travel 40 miles to attend the nearest court in Chesterfield. In response, The Lord Chancellor, the Rt Hon David Gauke MP, noted that courts are only utilised at 58% of their capacity across the country, and that there is a need to be more efficient.
  • Helen Hayes MP (Lab) highlighted her concern that following the closure of Lambeth Court, repossession cases are now to be heard at Clerkenwell Court, which she claimed has a history of inefficiency and delays. The Lord Chancellor, the Rt Hon David Gauke MP, argued that modernisation of courts is needed.
  • Philip Hollobone MP (Con), asked what signal closures of magistrates courts sends to Magistrates, and whether he will consider the age limit where magistrates have to retire at the age of 70. The Lord Chancellor, the Rt Hon David Gauke MP, confirmed that he has received representations on this issue, but that it is consistent with what happens across the judiciary.
  • Shadow Minister Yasmin Qureshi MP (Lab), noted that the Government has closed courts and cut staffing in recent years. She called on the Government to commit to not closing any courts until the forthcoming Courts Bill is considered by Parliament. The Lord Chancellor, the Rt Hon David Gauke MP, noted that the Bill will be brought forward in the near future, but wouldn't make any commitments and said that the Government needs to continue to look at the courts to ensure efficiency.
  • Bridget Phillipson MP (Lab) asked about Sunderland's court estate, where despite £2m being spent on preparations for a new centre for justice, because of delays to that project more money is to be spent on urgent repairs to the City's magistrates' courts. Justice Minister, Lucy Frazer QC MP, said that she has recently sent the MP a timetable of when decisions will be made on this and that she is happy to meet to discuss the issue further.
  • Daniel Zeichner MP (Lab) asked why the Government is rushing towards virtual courts before the Courts Bill is considered in Parliament. The Lord Chancellor, the Rt Hon David Gauke MP said that it is the Government's priority to ensure that the court estate is used efficiently and to ensure access to justice.

Court experience

  • Tony Lloyd MP (Lab) asked about the delays in cases coming before courts, and in particular for those who have suffered from sex offences. Responding, Justice Minister, Lucy Frazer QC MP, said that overall the time taken for cases to come before courts is improving, but recognised that there is a particular challenge on sex offences where it is taking longer. She said that the Government is bringing in measures on evidence, but recognised the need to improve in this area, and that the upcoming Courts Bill will speed up access to justice.
  • Alan Mak MP (Con) asked about what steps the Government is taking to improve the court experience for victims and witnesses. He argued that the video hearing system will improve access to justice and efficiency. Justice Minister, Dr Phillip Lee MP, agreed, and confirmed that the upcoming Victims Strategy, which will be published this summer, will consider issues in this area.
  • Patrick Grady MP (SNP) asked what conversations the Ministry of Justice are having with Scotland about the way they deal with victims of domestic violence. Justice Minister, Dr Phillip Lee MP, said there is still a lot to learn, and said that they will be looking closely at the steps taken in Scotland.
  • Sir Ed Davey MP (Liberal Democrat) asked about Government plans to legislate on the cross-examination of victims of domestic violence. Justice Minister, Dr Phillip Lee MP, said that they will bringing forward the Bill later this year.
  • Shadow Minister Gloria de Piero MP (Labour) asked about the court experience of women, ahead of International Women's Day. She noted that the vast majority of judges are male. She called on the Government to publish a strategy to improve the number of women judges and reach equal numbers of male and female judges. Responding, Justice Minister, Dr Phillip Lee MP, agreed that this is an area where change would be welcome, but did not commit to publishing a strategy or a timeline for reaching equal numbers.

Grenfell Inquiry

  • Shadow Lord Chancellor Richard Burgon MP (Lab) asked about the Grenfell Inquiry and argued that the survivors and the families of the victims need to have trust in the process. He asked whether the Government would consider calls to establish a broad inquiry panel. The Lord Chancellor, the Rt Hon David Gauke MP said that the Inquiry is making progress, and that he wanted to support it rather than undermine it.

Employment tribunal fees

  • Justin Madders MP (Lab) asked about recent figures which show only 6% of employment tribunal fees have been repaid despite them being declared unlawful last year in the Supreme Court judgment. Justice Minister, Lucy Frazer QC MP, said that they are working hard to ensure that everybody entitled to a refund is able to get one, and that they have worked with organisations including the Law Society to establish how best to do this.

Sanctions and Anti-Money Laundering Bill Committee Stage

The Sanctions and Anti-Money Laundering Bill was debated at Committee Stage in the House of Commons. The Law Society submitted written evidence to the Public Bill Committee considering the Bill.

The next stage of the Bill is Report Stage. The date for Report Stage has yet to be announced.

  • Henry VIII powers: Speaking in favour of amendment 39, Labour's Foreign Affairs Minister Helen Goodman MP said clauses 47 and 48 in the Bill gave Ministers the power to change this legislation and other pieces of legislation in perpetuity before the regulations under the clauses have been made. She added that the debates on Henry VIII powers were being debated repeatedly because the Government had inserted it into Bill so many times and that they needed persuading that it is excessive. Ms Goodman went on to say Minister should have put into primary legislation the overall structure for making regulations on both sanctions and anti-money laundering. Responding for the Government, Foreign Office Minister Sir Alan Duncan MP said the amendment would remove the appropriate and necessary power to make certain consequential modifications to existing primary and secondary legislation through ​regulations made in the Bill. He added that such power is not unusual and that it did not confer the power to make any changes to legislation independent of the sanctions and money-laundering power. Ms Goodman's amendment was defeated by 10 votes to 8.
  • Parliamentary committee to scrutinise regulations: Helen Goodman pushed new clause 7 to a vote, which would require a specialised House of Commons Committee to approve all statutory instruments laid under the affirmative procedure under the Bill - the Committee would also scrutinise the Government's reviews of sanctions regulations. The new clause was defeated by 10 votes to 8.
  • Failure to prevent money laundering: Shadow Treasury Minister Anneliese Dodds MP also tabled new clause 9, which would make it an offence if a relevant body failed to put in place adequate procedures to prevent a person associated with it from carrying out a money laundering facilitation offence. This money laundering facilitation offence would include concealing, disguising, converting, transferring or removing criminal property under the Proceeds of Crime Act 2002. In response, John Glen MP said the Government did not believe it was appropriate for the new clause to require all companies, regardless of whether they are incorporated, to have procedures to prevent persons connected to them from laundering money. He added this would risk making non-regulated firms liable for the actions of their regulated professional advisers, and would blur where responsibility should lie for anti-money laundering (AML) compliance. The new clause was defeated by 10 votes to 8.
  • Registration of companies: anti-money laundering checks: Ms Dodds spoke in favour of new clause 10, which would amend the Companies Act 2006 to ensure that the Registrar of Companies does not register a company under that Act unless the required anti-money laundering checks have taken place. John Glen MP said the clause would pre-empt the review process that the Financial Action Task Force (FATF) is conducting on the UK's AML regime. He also said it would require all incorporations to be made through a UK body regulated for AML purposes. This would prevent people from applying directly to Companies House to register and set up their own business and would increase the cost of setting up businesses by requiring the services of a professional agent that is also regulated for AML purposes. The new clause was defeated by 9 votes to 8.
  • Trust or company service providers: Ms Dodds also spoke in favour of new clause 14, which would ensure that Trust or company service providers that don't conduct business in the UK may not incorporate UK companies without oversight from a UK supervisor. John Glen MP said the most effective means of combating international money laundering is cross-border co-operation, including through the global FATF process, to drive up the standards of overseas supervision and enforcement. This was the reason why the Government had imposed a duty on each UK anti-money laundering supervisor to take such steps as they consider appropriate to co-operate with overseas authorities. The new clause was defeated by 9 votes to 8.
  • Money laundering: standards and designations: Ms Dodds moved new clause 16, which would ensure that FATF standards on AML, terrorist financing and other threats to the integrity of the financial system can be easily implemented in the UK. The clause would also help identify or revoke a designation of a high-risk country, taking account of best international practice, including EU sanctions regimes. John Glen said the new clause would limit the ability of the UK to place future changes to the AML system on a sound legal basis, and would prevent the UK's AML regime from going further in areas they would want to. The new clause was defeated by 9 votes to 8.

Brexit Secretary questioned by the European Scrutiny Committee

The European Scrutiny Committee questioned Brexit Secretary David Davis MP as part of its inquiry into 'EU Withdrawal'.

  • Transition: Davis said current prospects for agreement on transition by 23 March 2018 are good. Contention points that remain are issues around a joint committee, the arbitration decision-making mechanism, and the issue of citizens' rights during the implementation period.
  • Dispute resolution mechanism: Asked if it is the case that the more a trade agreement is based on EU laws, the more likely it is that the European Court of Justice (ECJ) will be involved in a dispute resolution mechanism. Davis noted that in EU negotiations, when they refer to principles of EU law, the ECJ takes monopoly on decisions. Davis argued FTAs the EU agreed with Canada and South Korea involved independent arbitration mechanisms, with appointees from both sides as well as an independent one. He said there will not be a Court of Justice of the European Union (CJEU) arbitration mechanism but wants to take some elements from the CETA model – Canada 'plus plus plus'.
  • ECJ: Davis was firmly questioned around the powers of the ECJ during the transition period. The Minister explained that during this time British courts will have the right to ask the ECJ for advice, but whether the courts follow this advice is up to British courts. Davis explained that during the transition period British courts will have the right to ask the ECJ for advice, and where there is no precedent they will ask for advice, but whether they take the advice is up to British courts. Asked if EU law should be given precedence over pre-exit UK primary law, Davis explained that the EU (Withdrawal) Bill seeks to replicate the current circumstances, which gives precedence to EU law over existing law. This will continue to apply for any law passed before departure from the EU but not thereafter.
  • Meaningful vote: The Minister was questioned on what would happen if Parliament votes the Withdrawal Agreement down. Davis pushed back explaining he had already answered these questions. Davis said the vote will not overrule the referendum result.
  • No deal planning: The Minister explained is not possible to stand it down no deal planning until the UK and EU have reached agreement. He added that although it is improbable that the deal will come apart once agreed, Government must be ready for all outcomes as a matter of good practice.
  • EU nationals: Davis explained that ensuring EU national rights won't be repealed by future Parliaments will be part of the Withdrawal Agreement. Davis explained the Withdrawal and Implementation Bill will be drafted in a way so that this area cannot be overtaken by implied rule, but can only be repealed explicitly if Parliament chose to do so. Davis highlighted that the British Government has not historically repudiated treaties in a cavalier manner and therefore it is unlikely future Parliaments will do this to 3 million people. Davis also explained there is a moral duty on the UK and the EU to ensure that the citizens do not have reasonable expectations whipped away because of the vote.
  • Ireland: Davis explained that there is already a border and different tax/excise regimes on the island of Ireland that use methods like electronic notification to avoid checks. He said the Government are trying to prevent any other handicaps such as tariffs or mutual standards. The Minister reiterated that for all intents and purposes the border is invisible and they are seeking to maintain this.
  • Future of UK trade: Asked how the Prime Minister's binding commitments would be consistent with an independent trade policy Davis highlighted that the UK cannot be cheaper than China or have more resources than Brazil. The UK's aim is therefore the aim is equality, intellectual content, and sales and services. The Government aims to create global standards. The Minister was clear that this is the direction of travel, and this will not constrain the UK and its future decisions.
  • Migration: Asked whether Government had ruled out diluting migration restrictions as part of future trade deals with other countries, Davis explained that trade deals that often cover services have related free movement arrangements, and there are various models of arrangements and it is possible that this would happen. He said the Government would want to negotiate mutual professional qualifications recognition with the EU.

House of Lords

EU (Withdrawal) Bill – Committee Stage day 5

The EU (Withdrawal) Bill had its fifth day of Committee Stage debate in the House of Lords. The Bill remains unamended, and peers are yet to force any amendments to a vote. The main points were:

  • Clause 6: Discussion around clause 6 of the Bill was limited, with the focus of that stage on the debate on several new clauses related to EU environmental protections post-Brexit and equality and discrimination protections in domestic law. The Government did however indicate that they were willing to listen to Peers' concerns in relation to ensuring appropriate, effective and clear guidance for when courts should have regard to post-exit ECJ judgments.
  • Limiting Henry VIII powers: A number of peers from across the House supported various groups of amendments to clause 7, all that sought to limit the Henry VIII powers afforded in the Bill through different mechanisms. This included a group of amendments that would limit powers so that Ministers can only use these when 'necessary' rather than when they consider it 'appropriate'. Responding on behalf of the Government, Lord Callanan said that the Government is approaching this issue in a spirit of collaboration, and is receptive to the arguments made in the Constitution Committee's report and is confident that a mutually agreeable position will be found. He added that the Government would like to discuss the issue further with peers following the debate, with an eye to coming back to this issue on Report.  Callanan did however stress that the Government cannot significantly restrict the scope of powers afforded in Clause 7, as these need to be broad, and that the test of 'necessity' is too high a bar to meet. The amendments were all withdrawn.
  • Limiting discretion to create new deficiencies: The Labour Party moved an amendment that would remove from Ministers the discretion to extend the definition of what constitutes a deficiency in retained law – a discretion that was added into the Bill by a Government amendment passed in the Commons. Baroness Goldie defended the addition of this, saying that there is a need for a power to provide for additional kinds of deficiency if they are later identified, and arguing that Peers should not remove this after it was passed in the Commons without a division. The amendment was subsequently withdrawn.
  • Limiting powers to create public authorities: During discussion of the above amendment, the Government also indicated that they would be open to discussions about limited the power afforded in Clause 7 to create new public bodies. This topic was also raised in response to an amendment moved by Lord Newby (Lib Dem), which would ensure that public bodies are created via primary legislation. The Government reiterated that while it would not accept these amendments, it would work to find a resolution to this matter and will revisit it on report. The amendments were withdrawn.

Wednesday 7 March

House of Commons

Justice Select Committee question the Lord Chancellor on the work of the Ministry of Justice

The Lord Chancellor Rt Hon. David Gauke MP was questioned by the House of Commons Justice Select Committee on the work of the Ministry of Justice (MoJ). Please find a summary of the main points from the session below.

  • Engagement with the legal profession: The Lord Chancellor said he had met with the Bar Council and the Law Society. He said he hoped to have a 'good and constructive relationship'. He noted Brexit was high on the agenda for both organisations.
  • The post of Lord Chancellor: The Chair Bob Neill MP (Con) welcomed the fact there is a solicitor as Lord Chancellor but questioned the turnover of the Secretary of State for MoJ and questioned whether it was a post used for MPs to help progress on their career. Alex Chalk MP (Con) also echoed these concerns and called it a 'destination job' and a 'stepping stone job', as highlighted by the Law Society Gazette. The Lord Chancellor said he did not recognise this and considered the position to be a promotion.
  • Measures of success over the next 12 months: On the HMCTS court reform programme, the Lord Chancellor said he believed technology has a big role to play in the modernisation. He said he hoped that he would have a good reputation on upholding the rule of law.
  • Brexit: After being questioned on a sector deal for the legal services after Brexit, the Lord Chancellor said it would be difficult to achieve. He said there are economic discussions to be had on getting a free trade agreement which accounted for legal services. He added that on security parts of an agreement are intrinsically linked to wider security arrangements with the EU and it would therefore be more difficult to reach a specific legal services deal. He said the MoJ has a strong voice at Cabinet level and feed into the Cabinet Committee on Brexit Strategy and Negotiations.
  • Intellectual Property (IP): On company law and IP law, Neill questioned whether it was still the Government's intention to complete ratification of the United Patent Court Agreement before the European Council on 23 March. In response, the Lord Chancellor said he would check after session and feedback to the Committee.
  • Legal aid: Linking the erosion of access to justice and the respect for legal services around the world, Alex Chalk MP (Con) questioned whether the Lord Chancellor agreed access to justice is a fundamental pillar on which our society is built. Recognising that the question was also implicitly about legal aid, the Lord Chancellor responded by saying the Government needed to make difficult decisions on legal aid and noted they had spent £1.6 billion on legal aid in the past year.
  • Managing the LASPO review: Alex Chalk MP queried the structure of the LASPO review, saying that it was worrying that the MoJ was only seeking views from external stakeholders and not producing original research, saying that a lack of research was one of the primary reasons the current legislation is failing. In response, the Lord Chancellor said the process was 'reasonable' and would be rigorous.
  • Early advice and LASPO: The Lord Chancellor confirmed that early advice would be looked at as part of the LASPO review but didn't want to be drawn into talking about how they would run the review. In asking the question, Bambos Charalambous (Lab) said he attended a legal aid APPG meeting this morning where he heard from Lord Lowe and the former Attorney General Dominic Grieve MP (Con), who were both supportive of early advice.
  • Timing of the LASPO review: The Lord Chancellor said the summer recess deadline for the review was ambitious, and said he wanted to 'look at whether the deadline is deliverable'. He said it was likely that the deadline is likely to be extended but did not give an exact indication.
  • Access to justice as a public good: Bob Neill noted that said access to justice cannot be regarded as purely a private matter between the parties to litigation. He said it's public good and not a transactional matter. The Lord Chancellor said he understood this point, but said he was conscious that there may be ways in which we could achieve access to justice in ways we didn't used to. Responding to a separate question, the Lord Chancellor said the MoJ had a long-term plan, Justice 2030, which looks forward at the ways in which technology can help us deliver an effective justice system. He denied that the MoJ was simply reacting to poor independent reports.
  • Court closures: The Lord Chancellor said courts are operating at less than their capacity and said at a time when public resources were scarce Government would need to make some tough decisions on court closure. The Lord Chancellor said they would be able to accommodate changes as a result of court closures and the MoJ has taken steps to understand what the closures would be.
  • Digital courts: Responding to questions on MoJ research, which suggested digital courts are expensive to set up and run, the Lord Chancellor said he recognised that these courts could undermine justice for people who could limit justice (e.g. digital literacy and language barriers) but noted the MoJ had run pilots to help improve access and test the technology.

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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