Westminster update: Law Society gives update on CPTPP
Your weekly update from our public affairs team on all the latest developments and debates in Parliament and across Whitehall.
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1. Law Society international policy adviser appears before Lords Committee
On Wednesday 10 March, our international policy adviser Catherine Brims appeared before the House of Lords Sub-Committee on International Agreements as part of their inquiry into the Comprehensive and Progressive Agreement on Trans Pacific Partnership (CPTPP).
Also on the witness panel were:
- Sean McGovern, board member, London Market Group and chief executive officer, UK and Lloyd’s at AXA XL
- James Sibley, head of international affairs, Federation of Small Businesses
- Sally Jones, partner, trade strategy, EY
Lord Goldsmith QC (Labour) asked the first question on the panellists’ general assessment of the CPTPP.
Catherine spoke first, and flagged the benefits of joining CPTPP, noting it was of growing interest to members with several already providing services and operating offices there.
She noted the importance of the region economically, the ability to provide services cross-border due to digitisation of services delivery, and the unique opportunity that the UK has in being the first country to seek accession.
She acknowledged that joining CPTPP will not change legal services market access overnight; it is simply a step toward increasing market access, and others must be taken as well.
Catherine noted that the CPTPP is an opportunity to increase dialogue and cooperation. She also flagged the concerns of the Chartered Institute of Patent Attorneys about interaction with the European Patent Office, but beyond that said the only real downside of joining for solicitors is the risk of it indicating that the UK accepts current market barriers as fixed.
Lord Kerr of Kinlochard (Crossbench) asked about the services market, saying there is not much additional market access. He observed that the tenor of discussion was that there is not much scope for renegotiation or advance at the start.
Catherine drew attention to Annex 10A, saying this is one of the first free trade agreements to cover legal services specifically, and to encourage fly-in, fly-out (FIFO) arrangements. She said the CPTPP allows for innovation and for progress, even if it does not provide much at first, and helps with clarity as a single agreement and baseline when compared to several bilateral agreements.
Lord Foster of Bath (Liberal Democrat) asked about digital trade. Catherine said that data protection is of crucial importance to rights of confidentiality and legal professional privilege, which should be protected. She said that any measures that provide clarity are of use, and noted that adequacy had been granted to several CPTPP countries already.
The chair finished by asking whether it is worth the effort to join CPTPP, with all panellists agreeing it is.
2. Law Society amendments to National Security and Investment Bill debated
The National Security and Investment Bill had the second sitting of its committee stage in the House of Lords on Tuesday 9 March. Peers have tabled 11 amendments drafted by the Law Society, and we were mentioned eight times during the debate.
Lord Hodgson of Astley Abbots (Conservative) expressed his gratitude to the Law Society for its help drafting a set of amendments that sought to introduce a more suitable definition of qualifying entities and assets.
Baroness Mcintosh of Pickering (Conservative) argued in favour of these amendments noting her “support [for] the Law Society’s conclusion” that this element of the bill needed to be altered.
Lord Hodgson also spoke in support of another set of amendments drafted by the Law Society. These amendments aimed to ensure that the legislation does not cause undue difficulties for intra-group investments or corporate groups comprising separate entities.
The investment minister, Lord Grimstone, challenged the amendments by arguing that in some instances internal reorganisations could pose national security threats.
The bill will have its third and final sitting of committee stage on Tuesday 16 March.
3. Law Society concerns over Overseas Operations Bill raised by peers
On Tuesday 9 March, the Overseas Operations (Service Personnel and Veterans) Bill received its first sitting of committee stage in the House of Lords.
We briefed beforehand and the Law Society was mentioned three times in the debate, which focused on the first section of the bill, dealing with the presumption against prosecution.
Lord Robertson of Port Ellen, a previous defence secretary under the 1997 Labour government and ex-secretary-general of NATO, spoke to his amendment providing that the presumption against prosecution does not apply to war crimes, crimes against humanity, genocide or torture, which we supported in our briefing.
Referring to our criticism of the presumption alongside that of the Joint Committee on Human Rights (JCHR), and the chief prosecutor of the International Criminal Court, he quoted directly from our briefing saying the measure “creates a special category of criminal case, hitherto unrecognised in UK law”.
This particular amendment was the core of the debate, with defence minister Baroness Goldie recognising that “this part of the bill has encapsulated the major areas of anxiety and concern” while responding for the government.
She argued that the presumption will not bar the prosecution of torture, as “the severity of an alleged offence will continue to be an extremely important factor for a prosecutor in determining whether or not to prosecute”.
She did, however, say she would speak with her officials on the issues raised by peers. Lord Robertson withdrew his amendment on this basis, but indicated that he would not drop the issue throughout the further passage of the bill.
Baroness Massey of Darwen (Labour) spoke to a series of amendments that would ensure the presumption against prosecution applies only after ten years instead of five.
She was also one of the cross-party group of peers who indicated they would oppose the inclusion of the presumption in full. In her speech she quoted our written evidence to the JCHR, noting our conclusion that “the presumption against prosecution creates a ‘quasi-statute of limitation’ which is ‘unprecedented’ in the criminal law and presents a ‘significant barrier to justice’”.
4. New courts and policing legislation enters Parliament
On Tuesday 9 March, the government published the Police, Crime, Sentencing and Courts Bill, which will make a broad range of alterations to the justice system.
Changes will be made to how pre-charge bail operates, allowing police to put suspects on bail for longer periods, with the presumption against bail also being removed. The bill will make the temporary changes to remote hearings contained in the Coronavirus Act 2020 permanent, allowing remote hearings to take place after the pandemic.
The bill will also allow prisoner escort and custody service officers to oversee video remand hearings in place of police officers, removing this pressure from police officers which had led to some forces withdrawing from video remand hearings during the pandemic.
We have a number of concerns around some of the measures contained in the bill, especially around the proposed pre-charge bail regime and the impact the adoption of remote hearings could have on access to justice.
The bill will have its second reading in the House of Commons on Monday and we will be engaging with MPs and the government as it makes its way through Parliament.
5. Domestic Abuse Bill commences Lords report stage
The Domestic Abuse Bill had its first and second sittings of report stage in the House of Lords this week.
We briefed peers ahead of the debate on our key concerns and positions. There were over 60 amendments tabled with several being passed on areas including:
- bringing the relationship between a disabled person and their carer within the definition of “personally connected” for the purposes of the Act
- requiring the Domestic Abuse Commissioner to prepare and publish a report on the need for certain domestic abuse services in England no later than 12 months after the Act is passed
- creating an offence of strangulation or suffocation
- creating new requirements for local authority support
- providing new protections for children under the Children Act
- providing specialist training on matters relating to domestic abuse to magistrates and judges hearing cases in family proceedings
- including threats to disclose private photographs and films as an offence under the Act
- imposing an automatic prohibition in civil proceedings on the cross examination of witnesses in person in certain cases
Justice Minister Lord Wolfson also spoke on one of the tabled amendments to the bill around the provisions for divorce in religious marriages.
Coming up next week
Next week in the Commons, the Police, Crime, Sentencing and Courts Bill will commence its second reading on Monday 15 March.
Tuesday 16 March will see a Westminster Hall debate on the use of release under investigation by the Metropolitan Police, while justice ministers and the attorney general will be each be responding to oral questions on Tuesday 16 March and Wednesday 17 March respectively.
In the Lords, the National Security and Investment Bill and the Overseas Operations (Service Personnel and Veterans) Bill will both have their third day of committee stage on Tuesday 16 March. The Domestic Abuse Bill meanwhile will have its third day of report stage on Monday 16 March.
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