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Chris White: Time is getting extremely tight to pass all the required withdrawal legislation

Chris White was Special Adviser to Patrick McLoughlin, when the latter served as Chief Whip, as well as to Andrew Lansley and William Hague when each served as Leader of the House. He is now Managing Director of Newington Communications.

The clock is ticking. We’re running out of runway.  Whatever metaphor you wish to use, Parliament has an awful lot of legislating to do before 29th March if it wishes to complete the passage of the seven Brexit Bills, along with a large amount of secondary legislation.

Today, the Prime Minister will update the Commons, setting out the Government’s progress in negotiating with the EU following the passage of the two advisory amendments last month.  They instructed, though not mandated, the Government to seek to both remove the backstop (Brady) and avoid a No Deal scenario (Spelman/Dromey).

Since then, the negotiations have been less than productive, revealed in striking language in the Prime Minister’s letter to the Leader of the Opposition over the weekend.  In it, she stated that she was still seeking alternative arrangements to the backstop without specifying in detail what they were, and that negotiating a free trade deal as a third party outside of the Single Market was a “negotiating challenge”, which is somewhat of an understatement.

A month on from the meaningful vote on 15th January, whilst significant column inches are dedicated to the possibility of the Malthouse Compromise we are no closer to knowing if the EU is prepared to alter the existing deal.  Parliament is running out of time before 29th March, either to pass a Bill implementing an agreed deal, or to pass legislation ensuring the UK is ready for a No Deal Brexit.

The scale of the challenge

On 31st January, the Leader of the Commons quite rightly cancelled the February half-term recess, yet also scheduled a range of business in the Commons that, whilst important, didn’t progress No Deal legislation in any way.  This risk-averse programming is almost certainly down to the fact that, with negotiations ongoing with the EU, the Government doesn’t wish to give any opportunities in the House to amend legislation to include unhelpful and challenging amendments.  For example, there have been strong hints that amendments could be tabled to the Trade Bill in the Lords that would seek to keep the UK in a Customs Union.

If this is the case, and with reports suggesting that the next ‘meaningful vote’ is in around three weeks, in the week commencing 25th February, we may not see any more progress in the Commons on much needed No Deal legislation until a deal is reached that the House can agree on.

In terms of readiness, a number of No Deal preparation Bills have already received Royal Assent, including the Customs Act, the Nuclear Safeguards Act, the Road Haulage Act and the Sanctions Act.  However much more needs to be done. For a start, winning the meaningful vote is only the first step – the Government must then pass a European Union Withdrawal Agreement Implementation (EU WAIB) prior to 29th March to give legal effect to the Withdrawal Agreement.  However the Government must not put all its eggs in one basket, and in order to provide security in the event of No Deal should pass a further six Bills, and additional secondary legislation.

These Bills range from allowing the UK to enter into trade deals, creating a domestic agriculture and fisheries market, maintaining our healthcare agreements, giving powers to implement financial services regulations, to bringing EU citizens under UK law.

The current state of play is as follows:

Westlake Legal Group Chris-White-Brexit-Bills-Final Chris White: Time is getting extremely tight to pass all the required withdrawal legislation Withdrawal Agreement Trade Bill law immigration House of Lords House of Commons (general) Highlights healthcare Fisheries Farming EU Comment Brexit

As you can see from the above table, agriculture, fisheries, and immigration are well behind schedule and will need considerable work to pass before 29th March.  Equally, Trade has its own issues as outlined above.

The Government also has to pass around 600-700 statutory instruments, or secondary legislation, before 29th March to be ready, in addition to the above Bills.  The timetable for their consideration has increased in recent weeks and the Government might just be on track, but around 200 still have to be considered in the next few weeks. Certainly the SI committees are working overtime, and have significant reading ahead of them.  The Times’s Esther Webber reported one SI from BEIS was “636 pages long, weighs 2.54 kilos and covers 11 matters that would be expected to go in separate documents.”

Will the UK be ready in time?

There are 45 days left until 29th March, and Parliament will sit for 26 of them (not counting sitting Fridays), unless it chooses to add more sitting days to the calendar or change the business on Fridays from Private Members’ Bills to Government business.  If the deadline of 29th March remains in place, it is unlikely that the Government will be able to pass both the EU WAIB and the six remaining No Deal preparation Bills.

This will mean uncomfortable decisions about which Bills it has to prioritise, and whether workarounds can be found through alternative means.  The Trade Bill is probably the highest priority for the Government aside from the EU WAIB, but failing to set up domestic agriculture and fisheries markets prior to exit day, for example, will cause severe concerns and uncertainty in those sectors.  If Government, Parliament and the EU reach consensus about an amended deal, or agree to the existing deal, then it’s likely that there will need to be a short extension to Article 50 as passing the EU WAIB inside a month, whilst technically possible, would be extremely challenging.  However, the Government must continue to progress with the No Deal Bills over the next few weeks, or the UK faces running out of runway before 29th March.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

The European Court of Human Rights has set a problematic precedent on religious freedom

The recent ruling by the European Court of Human Rights (henceforth ‘the Court’), upholding Austria’s decision to charge somebody for insulting Islam, poses an interesting quandary to its regular critics.

On the one hand, it has upheld what a great many liberals and conservatives alike consider to be an absurdly restrictive judgement. It may not (quite, yet) have imposed an Europe-wide blasphemy law, as sometimes suggested, but it has upheld Austria’s.

But on the other, those whose overweening concern is with democratic accountability and national sovereignty, and therefore oppose the imposition of law by a transnational judiciary, cannot without great care demand that the Court ought to strike down Austria’s laws when we don’t like them.

That is not to say that it is not, in its own right, a “lamentable judgement”. That is the view of Matthew Scott, who has explored the issue in some detail over on his blog. In summary, the Court has read into the Convention a right which the latter does not contain: namely, an extensive right for religious persons not to have their feelings offended.

Moreover, Scott argues that the Court is actually suggesting – at a time when blasphemy legislation is falling across the continent, most recently in Ireland – that signatories of the Charter have a duty to “criminalise “improper and abusive attacks” on objects of veneration”.

Needless to say, there is a world of difference between protecting the right to confess and practice a faith, and demanding that non-adherents ‘respect’ that faith – and it looks as if the Court has substantially broadened the scope of the right to religious conscience as originally codified.

This gets to the root of the problem for Court-sceptics such as myself. Austria, as a sovereign country, has a right to pass lamentable neo-blasphemy laws if it so chooses. If we are to have a trans-national legal regime then it is probably better, at least as default, that this is flexible and allows states leeway to pursue their own path as much as possible.

But in justifying their ruling the judges appear, if I read Scott’s analysis correctly, to be setting precedents which could well lead to impositions on other nations at a later date. If it becomes established that religious persons have a right not to be offended, it will fall on other states to uphold that right. Where Austria leads, other may have to follow.

Of course, Theresa May has backed away from her earlier enthusiasm for withdrawing from the authority of the European Court of Human Rights. But incidents such as this, where rights law starts metastasising and threatening to impose fresh obligations on democratic governments without any popular mandate, remind us why our relationship with it is something which future, post-Brexit governments may need to revisit.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Jamie Arnell: Ministers must take care when reforming non-disclosure agreements

James Arnell is a partner at Charterhouse. He writes in a personal capacity.

The UK media are, understandably, shouting from the rooftops this week about non-disclosure agreements after Peter Hain’s controversial use of Parliamentary privilege.

It is understandable. Because NDAs get in the way of a good story, we should expect plenty of noise around the issue. That’s all well and good. What is less good is the way it is framed.

In every media outlet I have seen or heard, the framing of the issue is as follows: NDAs are used by companies to force employees who may have suffered harassment, bullying, unfair treatment, and so on, to stay silent.

There are a couple of major flaws in this.

A “company” is not a real thing. Companies do not “do” anything. People working for companies do things. Real living and breathing people sign every one of these NDAs. So, unless we assume that all these people are unethical, bad people, the framing of the issue as “bad company (for which read bad person working for company) vs good victim” is too simplistic.

The media’s framing assumes that employees are always the ones being forced to sign NDAs. In my experience, it is sometimes the other way round.

An unscrupulous employee can quite easily extort money from a company by making allegations, without disclosing supporting evidence, and the company’s decision-makers face Hobson’s choice.  They can pay off the claimant and secure an NDA, or they can “call the claimant’s bluff”. If they call the employee’s bluff, they get months and years of adverse publicity as the allegations are aired, they get months and years of distraction from day-to-day business, and, if they lose the case, their company suffers serious reputational damage.

Given that the facts are rarely clear to the decision-makers in these cases (who are almost invariably not the accused executives), they take the safe route and pay for an NDA. The victim in cases where the facts were unproven is the company and not the employee.

Again, because a company is not a real thing, this really means that it is the other employees and shareholders of the company who are the victims. These are real people, who have in these cases had money extorted from them.

The good news is that, thinking it through from the employer’s point of view, I arrive at the same conclusion as those who focus on the employee. These NDAs should not be allowed to cover harassment and bullying. They should be limited to commercially sensitive information – IP, pricing, customer data, etc.

If every decision-maker at every company knew that it was impossible to use an NDA to silence an allegation, this would provide useful incentives. For harassing, bullying managers, it would be clear that their employers would not protect them with an NDA and they would have to expect to face justice. For the unprincipled false accusers, they would know that they would have to prove any claim in court. There would be no opportunity for extortion.

I have no idea whether this would lead to more harassment cases or fewer. That depends how many are real and how many are simply attempts to make some money. I suspect that it would lead to a lot more cases and therefore pressure on the courts, who would have to process all the real claims.

This would be good for transparency but, unless accompanied by a substantial increase in spending on employment tribunals, it would cause a massive backlog of cases, which would be unfair for employees and employers alike.

In this debate, therefore, it is important that we do not satisfy ourselves simply with outlawing these NDAs. We also need to ensure that the tribunal system is funded to allow rapid dispute resolution.

I think it would be sensible to withhold the names of claimants and employers in such cases until the facts have been established, to avoid prejudicing careers and company reputations.

Finally, there is one unspoken and very uncomfortable aspect of all this which should be put on the table. As things stand, the majority of allegations (true and false) will be silenced with an NDA, at a price. This means that the risk of an allegation can be priced upfront. For a given profile of employee, there is a given probability of an allegation, and a likely cost of silencing it.

I have a daughter, and this worries me a lot. If the majority of claims are from women, who suffer the most harassment and bullying, then female hires come with a higher cost attached upfront. The risk is that this leads to a reluctance to hire women, instead of a determination to root out harassing males. This is obviously wrong-headed, but it risks becoming a commercial reality.

Three things are therefore key as we wait for NDAs to be disallowed. First, we must of course root out our bullies and adopt zero tolerance of harassment. Second, we must avoid running scared of hiring female employees, even if they come with a higher risk of claims. Third, everyone should be very careful not to lose sight of the fact that some claims are baseless, and that those who make them, whether under the #metoo banner or otherwise, deserve our opprobrium.

The sooner we remove the financial incentive for false claims, the better.  And the sooner we move away from this “bad company, good claimant” simplistic view of life, the better, too.

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com