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Triggering article 50 and the lord chancellor questioned on judiciary independence

12 December 2016

Alexandra Cardenas discusses the article 50 hearing and the chancellor's first fiscal announcement.

In the last full week before Christmas recess, the House of Lords will be considering the Wales Bill and the Intellectual Property (Unjustified Threats) Bill. The minister for Courts and Justice, Oliver Heald QC MP, will be giving evidence in front of the Justice Select Committee on the government's recent response to the Committee's report on Courts and Tribunal fees.

Debates on Brexit will also continue in both Houses with the secretary of state for Exiting the EU givng evidence for the first time to his department's scrutiny committee. Mr Davis has previously suggested this could be an opportunity for him to outline more detail on the government's plans for the EU negotiations.

Mark Anderson, chair of the Law Society's Intellectual Property Law Committee will be giving evidence to the Science and Technology Select Committee on managing intellectual property and technology transfer.

Last week, Labour's opposition day debate on the government's plans for Brexit led to the government committing to publishing a more detailed plan on negotiations with the EU before triggering article 50. Following the debate the House of Commons also voted to support the triggering of article 50 before 31 March 2017.

Within the justice sector, the lord chancellor was questioned by several MPs on her role of protecting the judiciary. She noted that the independence of the judiciary was a fundamental principle of the constitution and that the government remained committed to it alongside the freedom of the press. In a separate Lords debate on the rule of law, Lord Lester suggested that the government should draft written guidance on how the lord chancellor can comply with their Section 3 duty to protect judicial independence.

This week in Parliament

Monday 12 December

House of Lords

  • Oral questions on protection of consumer rights following the UK's departure from the EU

Tuesday 13 December

House of Commons

  • Adjournment debate on International Human Rights Day
  • International Trade Select Committee session - UK trade options beyond 2019 with:
    • Roderick Abbott, former deputy director-general, World Trade Organisation and European Commission directorate-general for Trade
    • Dr Federico Ortino, The Dickson Poon School of Law, King's College London
    • Peter Ungphakorn, former senior information officer, World Trade Organisation Secretariat
    • Professor Fiona Smith, School of Law, University of Warwick

House of Lords

  • Intellectual Property (Unjustified Threats) Bill [HL] - Third reading
  • EU Justice Sub-Committee - Brexit: civil justice cooperation with:
    • Professor Jonathan Harris QC, Serle Court
    • Mr Richard Lord QC, Brick Court Chambers
    • Mr Oliver Jones, Brick Court Chambers

Wednesday 14 December

House of Commons

Science and Technology Select Committee - Managing intellectual property and technology transfer with:

  • Mark Anderson, The Law Society IP Law Committee
  • Dr Daniel Nelki, science to health lead, Wellcome Trust
  • Professor Dame Ann Dowling, president, Royal Academy of Engineering
  • Professor Trevor McMillan, vice-chancellor, Keele University

Justice Select Committee - Courts and tribunals fees with:

  • Minister for Courts and Justice Sir Oliver Heald QC MP

Defence Sub-Committee - MoD support for former and serving personnel subject to judicial processes with:

  • Rt Hon Sir Michael Fallon MP, secretary of state for defence
  • Air Marshal Sir Stuart Peach GBE KCB ADC DL, chief of defence staff
  • Peter Ryan, director Judicial Engagement Policy

Exiting the European Union - The UK's negotiating objectives for its withdrawal from the EU with:

  • Rt Hon David Davis MP, secretary of state for the Department for Exiting the European Union
  • Adjournment debate on corporate governance and social responsibility
  • Westminster Hall debate on effect of exiting the EU on businesses in Wales

House of Lords

  • Wales Bill - Report stage
  • Lords debate - Updating the law on surrogacy

Thursday 15 December

House of Commons

  • Backbench business debate - Creation of a commercial financial dispute resolution platform

House of Lords

  • Lords oral questions - The government's assessment of the review by David Lammy MP of racial bias and BAME representation in the criminal justice system

Monday 5 December

Nothing to report

Tuesday 6 December


House of Commons

Justice oral questions

The Ministry of Justice Ministers answered questions from MPs on Tuesday. Although the questions mainly focused on prison reform and prison services, the contribution of the legal services sector to the UK economy, employment tribunal fees, and the independence of the judiciary were raised.

We briefed Richard Burgon MP, shadow lord chancellor, in advance and he asked a question about the implications of the small claims reform on access to justice.

The main issues were as follow:

  • Independence of the judiciary - The lord chancellor was asked by Labour and the SNP about steps taken to protect the independence of the judiciary. In her response, the lord chancellor stated that the independence of the judiciary was a fundamental principle of the constitution and that the government remained committed to it alongside the freedom of the press. In relation to the Article 50 case, she said that it was not the government's job 'to police headlines' and that it was the government's right to defend the case in court. Conservative MP Michael Fabricant noted that the Supreme Court was sitting, and said that the integrity of the Supreme Court and the justices should not be impugned. The lord chancellor agreed with him and praised the integrity of the Supreme Court.
  • Employment tribunal fees - Shadow justice secretary Richard Burgon asked if the government would scrap employment tribunal fees and begin a review into legal aid cuts. The lord chancellor said the government would be reviewing LASPO and had set out a timetable to do so. Labour MP Imran Hussain asked the government to confirm when the review of employment tribunal fees would be completed and published. Courts and justice minister Oliver Heald reiterated that those who can afford it should pay for the use of the court and that the outcome of the review would be published in due course.
  • Contribution of the legal services sector - Conservative MP Stephen Hammond asked what the government was doing to ensure that the UK remained a global leader for legal services after Brexit. Oliver Heald said that the legal services sector contributed £26 billion to the UK economy and that it would continue to play an important part in the success of post-Brexit Britain.
  • Human Rights Act - SNP MP John Nicolson asked about what recent progress had been made on the plan to replace the Human Rights Act 1998. Oliver Heald said the government would set proposals for a British bill of rights 'in due course' and consult fully. Following, Nicolson highlighted a report by the UN Committee on the Rights of Persons with Disabilities and said the government should focus on protecting rights enshrined in the Human Rights Act. Oliver Heald said the UK did not 'need lectures about its human rights record' and had a long tradition of human rights.

Wednesday 7 December


House of Commons

Business groups and trade unions give evidence to Exiting the EU Select Committee

  • The Exiting the European Union Select Committee held an evidence session on the UK's negotiating objectives from withdrawal from the EU. In this week's session they took evidence from: Carolyn Fairbairn, director-general, Confederation of British Industry; Frances O'Grady, general secretary, British Trades Union Congress; John Longworth, co-chair of leave means leave and former director general of the British Chambers of Commerce.
  • Carolyn Fairbairn told the Committee that alternatives could be found to the passporting regime for financial services companies, but that there would be some effects on the sector's competitiveness if access was lost.
  • She also said that financial services firms were talking optimistically about negotiating new deals on services with non-EU countries, and that swift and decisive negotiations with the EU are essential once the UK triggers Brexit.
  • Businesses want government to 'get on with it - but also get it right,' Fairbairn.
  • CBI members have indicated they would like at least 9 to 12 months' lead time for trade preparations and contingency measures to be put in place before any new laws are applied.

Opposition day debate - The government's plan for Brexit

Labour used their opposition day debate this week table a motion calling on the government to publish a plan for leaving the EU before article 50 is triggered. Labour's motion is vaguely worded, and gives the government flexibility in defining what publishing a 'plan' actually means in practice.

Following rumours that up to 40 Conservative MPs would rebel, the government tabled an amendment to the motion which commits to publishing the government's 'plan for leaving the EU before article 50 is invoked' and effectively forces Labour MPs to accept that article 50 will be triggered by the end of March. The motion passed in the amended form.

Shadow Brexit secretary, Sir Keir Starmer QC MP's key points were:

  • Starmer opened by saying that the government wants to prevent parliament from having a say on article 50, and that is what the Supreme Court case is about. He said that this motion would be important if the government wins its appeal, as it would be their only opportunity to scrutinise government.
  • Starmer also said that, given MEPs will get a vote at the end of the process, then UK MPs should also have a vote at the end of the process. Davis said the government has already said 'the Constitutional Reform Act procedures will apply' - in other words indicating that MPs will get a vote. Clarifying this later in the debate Davis said it is 'inconceivable' that MPs would not get a vote, but that this would be a vote on the deal; it would not allow MPs to vote against leaving.
  • On the substance of a plan, Starmer said he accepted that it should not undermine negotiations, but he said the contrary - having two years with no information on a plan at all - was not acceptable. He said the minimum requirements for the plan would be:
    1. Enough detail to end uncertainty over the issues including: paying for access to the single market, membership of the customs union and transitional arrangements.
    2. Providing enough detail for parliamentary bodies like the Exiting the EU Select Committee to scrutinise the deal.
    3. Enough detail for the Office for Budget Responsibility to carry out its scrutiny properly.
    4. There should be enough detail in the plan to assure the devolved governments that their concerns are being addressed.
    5. The plan must have enough detail to build a genuine consensus, and not just be aimed at 'the 52 per cent' who voted to leave, or 'the 48 per cent' who voted to remain, but the '100 per cent.'

Brexit Secretary, David Davis MP's key points were:

  • Davis moved the amendment for the government, saying that his mandate was to leave the European Union. He said this would be the most complex negotiation in modern times, and some confidentiality needs to be kept, and there was a need for agility and speed, as well as the ability to adjust. He added that the EU itself recognises this in its negotiations.
  • Davis highlighted his numerous appearances in front of parliament and committees, as well as providing debates in parliament, as examples of his intention to be transparent.
  • He added that free movement cannot continue as it is, but that employment rights will not be eroded, enshrining EU laws into UK law through the Great Repeal Bill. He said 'no law will be changed without the explicit approval of parliament'.
  • He said the UK wants the freest possible deal in trade, but that there are a range of ways to achieving this.
  • Davis said there will be continued cooperation on security with the European Union after the UK leaves.

House of Lords

Lords oral questions - Public understanding of the role of the judiciary

  • Lord Beith (Lib Dem) tabled an oral question on promoting public understanding of the rule of law and the independence of the judiciary.
  • Lord Beecham (Lab) called the government's response to attacks on High Court and Supreme Court judges 'feeble' and 'dismaying'. However a number of peers praised Ministry of Justice Lords Spokesperson Lord Keen's vigorous defence of judicial independence.
  • Viscount Hailsham (Con) asked whether Lord Henley would encourage the lord chancellor to be a little more robust in her defence of the judiciary in future.
  • The Lord Bishop of Leeds (Crossbench) pointed out that public legal education on the role of the judiciary needed to be carried out more widely than just in the classroom, as newspapers played a significant role in shaping people's views.
  • Lord Brown of Eaton-under-Heywood (Crossbench) pointed out that it was more important to note that the attacks undermined the justice system, as individual judges tended to have 'pretty thick skins'.
  • Lord Lester (Lib Dem) asked the government to draft written guidance on how the lord chancellor can comply with their Section 3 duty to protect judicial independence. Responding for the government, Lord Henley said he would pass on the comments.

Thursday 8 December

Nothing to report

Friday 9 December

Nothing to report

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