Westminster Watch

As the new year beckons, Mark Hatcher takes a timely look back over 2017 for clues as to what might happen in the village of Westminster over the coming year

Twelve months ago Jeremy Corbyn still seemed like an unvarnished maverick, a combative outsider leading a party which seemed happier in opposition than one preparing for government. The Tories, slowly coming to terms with the outcome of the previous June’s referendum and the process of withdrawal from the EU, looked in a relatively strong position, to judge from the polls and commentariat. Despite repeatedly refusing calls for a general election, Theresa May decided to go to the country after a walk in the Welsh hills. Her call for a snap election failed spectacularly.

Although the Conservatives won more votes than Labour under Tony Blair had won in three successive general elections, the Tories’ working majority of 17 over Labour evaporated overnight on 8 June. The Conservative campaign, based very largely around the Prime Minister herself, was a disaster. Labour under Corbyn on the other hand offered hope, fairness and a better Britain. The party’s constructive ambiguity over Brexit kept remainers on side. Jezza’s unassuming, insurgent style cut through especially with younger voters, backed up by a slick social media operation that left the Tories trailing.

Although it felt like Labour had won, the reality was that the party had suffered its third successive general election defeat and was behind by 800,000 votes. However, the Conservatives were only able to form a minority government by doing a deal with the DUP to provide them with a working majority of 12. The Queen’s Speech, delivered on 18 June, was dominated by Bills to tackle Brexit.

To enable parliamentarians to have enough time to consider the Brexit legislation fully the speech was intended to covered a period of two years. It also promised a Courts Bill (a slimmed down version of the Prison and Courts Bill which had completed all its Commons stages in the previous Parliament but fell with the dissolution in May) and a Civil Liability Bill (to crack down on fraudulent whiplash claims). Liz Truss was sacked as Lord Chancellor to be replaced by the fourth non-lawyer in a row, David Lidington, formerly Minister for Europe for six years at the Foreign Office before becoming briefly Leader of the House of Commons. The Law Officers remained unscathed by the re-shuffle.

The European Union (Withdrawal) Bill has been the centrepiece of the government’s legislative programme so far and is expected shortly to begin its Lords’ stages, following detailed scrutiny on the floor of the Commons as befits a measure of major constitutional importance such as this. The Bill seeks to provide the ‘smooth and orderly’ transition hoped for by the government as the UK leaves the EU, repealing the European Communities Act 1972, converting EU law into UK law and creating a huge raft of temporary powers for Parliament to make secondary legislation.

After a terrible election campaign and a torrid time for months thereafter the Conservative backbenchers hoped that Philip Hammond’s second budget would help to unite a fractious party and provide a more optimistic narrative that could appeal to the wider public. In the event ‘spreadsheet Phil’ delivered a competent, steady-as-she-goes budget in a near impossible political situation with £3bn to prepare for all Brexit scenarios (including no deal); investment in housebuilding; abolition of stamp duty for most first-time buyers; a freeze on fuel and diesel duty as well as on booze; £1.5bn to head off cross party concerns about the introduction of Universal Credit and more money for the NHS.

The budget could never be the political game-changer that Tory MPs hoped for. The parliamentary arithmetic is such that there are no votes in Parliament for big acts of social and economic reform. There is quite simply no narrative that the Tories can construct – whether it is tackling the ‘burning injustices’ or building ‘a Britain fit for the future’ that can compete with the awesome challenge of the biggest, most complex challenge facing the government in our peacetime history, to dismantle over 40 years of Britain’s economic and security arrangements with the rest of Europe.

So where are we now? It has taken nine months to agree the terms of the divorce. The basis on which the European Commission recommended that ‘sufficient progress’ had been made on the first phase of Brexit paves the way for phase two – the future deal – and to talks on transition.

On citizens’ rights the UK has offered a much simpler and cheaper procedure. It has conceded somewhat on future family reunification and on continued (but time-limited) oversight by the Court of Justice of the EU. On the financial settlement, the divorce bill is between £35-£39bn. The UK avoids any upfront payment. We continue contributions as at present and can benefit from programmes started in the current financing period. A framework has been agreed for addressing the unique circumstances in Northern Ireland.

Of particular interest to the Bar, the report on progress for the December meeting of the European Council appears to have addressed concerns about mutual recognition of qualifications and the need to provide legal certainty and clarity on cooperation in civil and commercial matters. There is a general consensus that EU rules on conflict of laws should continue to apply to contracts before the withdrawal date and non-contractual obligations where an event causing damage occurred before the withdrawal date. There is also agreement to provide legal certainty as to the circumstances under which EU law on jurisdiction, recognition and enforcement of judgments will continue to apply and that judicial cooperation procedures should be finalised.

If a hard border in Ireland cannot be avoided through other means, there is a safety net: ‘full alignment’ with the rules of the customs union and the single market. In agreeing this the Prime Minister has effectively abandoned her mantra ‘no deal is better than a bad deal’. A soft Brexit looks increasingly more likely.

What the UK’s long-term relationship with the EU will look like is unclear, the Cabinet having avoided any discussion of this issue for many months. The most difficult challenges involved in securing an agreed vision in legal form lie ahead and the clock is ticking. The chances of concluding even a modest trade deal and getting it ratified in all EU 27 countries during a two-year timeframe after the UK leaves the EU in March 2019 look very remote. Trade agreements, especially multilateral agreements, are long and complex. Invariably they take years to negotiate. A transitional period could be more like five years and there is already pressure from business for a longer period than the two years currently envisaged as well as more clarity about how it would work in practice.

So Brexit will continue to dominate the Westminster agenda in the year ahead and doubtless for years to come. Meanwhile during the remainder of the current session, the government’s business managers will be under pressure to allocate sufficient parliamentary time for the domestic agenda, including the Ministry of Justice’s priorities for court reform and other related matters on which the ministry’s future expenditure plans have been predicated.

Over the coming year the Ministry will also need to work hard with the legal profession to realise what it sees as a ‘huge opportunity’, in the words of the Minister of State, Dominic Raab, to promote UK legal services on a global level through trade liberalisation and by promoting the UK for international dispute settlement.

The Ministry of Justice has also recently confirmed its intention, after months of dithering, to complete its review of the operation of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 by the start of the 2018 Summer Recess.

The challenges facing that department will certainly test the person appointed to fill the recently advertised post of second speechwriter to the Secretary of State for Justice, for a salary of up to £70k. The successful candidate will need to have ‘a can-do mentality and a mind-set that is big enough to understand the big strategic picture but small enough to know that attention to detail is crucial’. Any takers?

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Mark Hatcher

Mark Hatcher is Special Adviser to the Chairman of the Bar. After working at the Law Commission and in the House of Lords, he became Head of Global Public Affairs at PwC. He is a Bencher of Middle Temple, as well as being a priest. He is Reader of the Temple.