Civil Jurisdiction and Judgments (Civil and Family) (Amendment) (EU Exit) Regulations 2019

Stuart C McDonald Excerpts

Monday 28th October 2019 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I have very little to say. For any legal purists watching from Scotland, I think the action referred to is actually aliment, not ailment. Other than that, what the Minister said made sense; the provisions correct two particular problems with the earlier regulations and on that basis, I do not object. I share the shadow Minister’s concerns about the fact that these changes need to be made—we should try to get the regulations right the first time around—but it is better that we do it now than not at all.

[The Chair]

Minister, do you wish to make any further comments or are you happy for me to put the Question?

Procedure for Appointing Judges

Stuart C McDonald Excerpts

Tuesday 8th October 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move,

That this House has considered the procedure for appointing judges.

It is a pleasure to serve under your chairmanship, Mr Sharma. I look forward to a positive and perhaps consensual debate on the procedure for appointing judges and the importance of those procedures being consistent with the independence of the judiciary, the separation of powers and the rule of law.

I sought this debate because I was concerned about certain headlines that appeared in the press in the days following the Supreme Court judgment in the Cherry and Miller cases. I pay tribute to my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her work on the Cherry case, as well as the legal team, which did such great work. I was pleased to be one of the MPs party to that case. The headlines I was concerned about came in response to a decision that the Government did not particularly like. They were perfectly entitled not to like the decision, but they were not entitled to consider changing the system for appointing the Supreme Court judges.

For example, a headline in the Daily Mail read:

“Geoffrey Cox suggests UK could move to US-style political vetting of judge appointments in the wake of the Supreme Court’s prorogation ruling”.

The Daily Telegraph ran the headline:

“Supreme Court justices could be appointed by MPs in wake of Brexit ruling, Geoffrey Cox says”.

In a slightly more understated fashion, The Law Society Gazette headed its report with certain exchanges in the Commons Chamber with the headline:

“Supreme Court appointments may need MPs’ approval—attorney general”.

In fairness to the Attorney General, it took a degree of journalistic licence to get from what he said in the Chamber to what was reported. Those headlines arose from exchanges in the Chamber during an urgent question tabled by my hon. and learned Friend the Member for Edinburgh South West.

[John Howell (Henley) (Con)]

Does the hon. Gentleman agree that the independence of our judiciary and the way in which we appoint them is admired right across the world, and that that fits in with our role in the Council of Europe, which is there to uphold the rule of law?

[Stuart C. McDonald]

I agree with the hon. Gentleman wholeheartedly. I will return to that point later. The exchanges that sparked those headlines came when the Attorney General was asked by one of his Back Benchers whether it was time for MPs to get involved in approving appointments at the Supreme Court level. The Attorney General responded:

“I do think that we are going to have to look again at our constitutional arrangements…there may very well need to be parliamentary scrutiny of judicial appointments in some manner.”—[Official Report, 25 September 2019; Vol. 664, c. 666.]

As I said, I think the subsequent headlines required considerable journalistic licence. It would be useful if the same headline writers would publish the subsequent remarks that the Attorney General made during Attorney General’s questions last week, when he said that

“certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements.”—[Official Report, 3 October 2019; Vol. 664, c. 1360.]

Similarly, I welcome the Lord Chancellor’s words this morning at Justice questions in defence of judicial independence and against any notion of political appointments.

With impeccable timing, as soon as I received notification that I had secured this debate, I received a written answer from the Minister—I welcome him to his place—confirming that there were no plans to change the judicial appointments processes. The answer continued:

“Our judges are selected following a rigorous, independent, merit based process which is key to maintaining the quality, integrity and independence of our world class judiciary.”

That answer echoed the point made by the hon. Member for Henley (John Howell).

In the light of all those assurances, I wondered whether it was worth proceeding with this debate, but I think it is. I am grateful to hon. Members for staying to take part. It is still relevant to proceed because, despite the words of the Minister, the Attorney General and the Lord Chancellor, one fairly significant member of the Government does not seem to be singing from quite the same hymn sheet—perhaps not for the first time. Between the Attorney General’s original comments and his clarification, when the Prime Minister was asked about the consequences of the Supreme Court judgment by The Sunday Telegraph, he said:

“It will take a while to be worked through. But I think, if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability.

The lessons of America are relevant.”

Whether the Prime Minister was thinking about putting the UK on the path to a US-style system, under which Supreme Court judges are overtly political appointees, as The Sunday Telegraph interpreted it, only he knows—I very much hope not.

The pot was stirred even more firmly by a former Conservative leader who told The Times at the end of last week that

“more and more people are beginning to ask, with some legitimacy, whether it might be time to hold hearings as they do in America to find out what their political views are and what we can expect. We need to know more about these people.”

I could not disagree more strongly with that statement. A better response to the Prime Minister’s comments came from a former Cabinet colleague of his in an article for The Sunday Times this weekend:

“If he means we should learn from the weaknesses of the US system, he is absolutely right. If he means we should copy that system, he is wrong. It involves far too much political interference in the appointment of judges and also too much judicial law-making.”

My ambition in this debate is, therefore, quite modest: to achieve as broad a consensus as possible, saying clearly and loudly that we believe in the rule of law, the separation of powers and the independence of the judiciary; that our appointments processes must always respect that; and, specifically, that we reject the politicisation of the judiciary, in particular through US-style appointments processes. The Prime Minister and some of the less sensible members of the Conservative party should stop stirring that pot.

I am not saying that the appointments processes in the UK are absolutely perfect, whether through the Judicial Appointments Commission of England and Wales, through its Northern Ireland equivalent, through the Judicial Appointments Board for Scotland or through the appointments commissions that are convened for the purposes of selecting Supreme Court justices. No system is perfect, and they have all been criticised. It is absolutely right that we should keep those systems under review and scrutinise them to ensure that they deliver the appointment of the best judges.

Other hon. Members may want to make suggestions about how we can improve each of those systems, including to better protect judicial independence or to improve the scrutiny and accountability of judges through ombudsman and complaints processes. I have no doubt that more can be done to improve diversity on the bench, for example.

[Keith Vaz (Leicester East) (Lab)]

I congratulate the hon. Gentleman on securing this important debate, and I join him in congratulating the hon. and learned Member for Edinburgh South West (Joanna Cherry) on the stunning cases that she brought over the past two weeks. Regarding diversity, the old system required the Lord Chancellor to make all the appointments of the judiciary on the advice of civil servants. Does the hon. Gentleman think that the new system, with the Judicial Appointments Commission, has gone far enough in reflecting the diversity of the community at large? Obviously, gender diversity has increased, because we have a woman President of the Supreme Court, but what about ethnic minority diversity?

[Stuart C. McDonald]

I do not have a ready answer to that. The numbers show that it may not have gone far enough. I agree that there is more to be done to ensure that we have a bench that reflects the society that it serves, but I am not sure what the means and mechanisms for that should be.

My key point is that we should never consider or undertake the politicisation of the appointments processes, because the arguments that have been put forward in support of political interference in the appointments process are flimsy and, I would say, misguided. There is an assertion that because judges have suddenly got involved in matters that are deemed to be political, their political judgment should be open to scrutiny by parliamentarians before they are allowed to sit, but to take that view is to misunderstand the role of judges completely. Although what they decide has important political consequences, the decisions they make are not political, but legal. Therefore, a candidate’s legal abilities alone need to be assessed and compared to those of their peers.

[Dr Dan Poulter (Central Suffolk and North Ipswich) (Con)]

I congratulate the hon. Gentleman on securing the debate, and I agree with much of what he has said. I support the separation of powers and the independence of the judiciary. Many judges—particularly those with academic backgrounds—may, although they were appointed through an independent process, have expressed views in the past that could be considered political; in some cases, those may be historical political views. That may lead some people to be concerned about the politicising of the judiciary and the potential for judges’ views to influence their decisions. How would the hon. Gentleman address the perceived concerns of political bias on the part of some judges because of views they have expressed in the past as academic lecturers or in other forums?

[Stuart C. McDonald]

I welcome that intervention, and the hon. Gentleman raises an interesting question. There are a couple of things I would say. First, we will never have a judicial bench that does not have political opinions. Just because we do not necessarily know what those opinions are does not mean that members of the judiciary are not normal human beings who have political views. Secondly, all we can do is to ensure that candidates are assessed, like all others, by an independent judicial appointments board to ensure that appointments are made on the basis of their ability to do the job as independent judges. It may be that certain individuals have expressed views such that that is called into question, but we have independent panels in place that are designed to filter out any suggestion that candidates are making decisions for political reasons, rather than simply on the merits of a particular case.

As Sir David Edward, a former judge in both the European Court of Justice and the Court of Session, put it in a recent Scottish Legal News article:

“Many judicial decisions have political consequences but it is a quite different thing to say judges have made decisions for political reasons.”

He argued that if there is a lesson to be learned from America, it is the

“malign effect of a system dependent on political or doctrinaire allegiance”.

There is nothing new about judges making decisions that have political implications or cause political controversy—although given some of the recent commentary, people might think otherwise.

It is worth noting that one of the key reasons why judges’ decisions frequently have significant political implications is precisely because this Parliament has required that of them. The Human Rights Act 1998, for example, requires judges to look at whether Acts of Parliament are compatible with the European convention on human rights. Acts of the Scottish Parliament can be literally struck down, not just under the Human Rights Act, but if the Scottish Parliament is found to have strayed beyond its competence under the Scotland Act 1998. The acts of Ministers here and in devolved Administrations are subject to judicial scrutiny. European Union law has also been a ground for challenges. That links with the growth in the use of secondary legislation—legislation that in my view is often not scrutinised particularly well here—which at least has the fallback and safeguard of judicial review.

Increasingly, judges have been asked by this Parliament to take decisions that have political ramifications, but they make those decisions on legal grounds alone, and we should not forget that. Ultimately, the key point is that the different branches of government should provide checks and balances against each other. The judiciary provides a key check against Executive overreach. To my mind, the cases of Cherry and Miller are brilliant examples of that, though perfectly reasonable people can disagree. The point is this: what sort of check does the judiciary provide if it is stuffed with Government or political appointees? It is either a check that is ineffectual in reality, or one that is perceived to be ineffectual, and both matter for the rule of law.

I will finish with a quote from the vice-president of the Law Society, Stephanie Boyce. In responding to the recent controversies, she told The Law Society Gazette:

“An independent judiciary is fundamental to our democracy. The notion of vetting judges for their political opinions is at odds with the whole construction of British justice.”

I very much hope that is something we can all agree on.

--- Later in debate ---

[Stuart C. McDonald]

This has been a worthwhile debate with cross-party strong and unequivocal support for the principle of judicial independence, and the idea that that must be at the centre of our judicial appointment processes. We have heard interesting points about diversity on the bench and retirement ages, and received a sympathetic response from the Minister. We will obviously scrutinise and debate these issues further in future. I therefore thank hon. Members for their excellent contributions, and the Minister for his response.

Question put and agreed to.

Resolved,

That this House has considered the procedure for appointing judges.

Courts and Tribunals (Online Procedure) Bill [Lords]

Stuart C McDonald Excerpts

2nd reading: House of Commons & Money resolution: House of Commons
Tuesday 16th July 2019 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure as always to follow the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), whose contribution was as ever thought provoking and valuable.

I welcome the opportunity to take part in this debate. I thank the Minister for explaining the background to the Bill and for taking the time to speak yesterday on the telephone about its provisions. While the Bill will have its most significant impact in England and Wales, it is important to remind the House that it will also have significant implications for Scotland and Northern Ireland, because of its application to various reserved tribunals operating in those jurisdictions. The employment tribunal for Scotland received 24,000 cases last year, and while we do not have Scotland-specific figures for the UK-wide first and upper tier tribunals, even a simple population share would suggest a similar number again taking up social security cases and asylum and immigration cases in those institutions. In due course, further tribunal functions will be devolved, but in the meantime the Bill is important for many people seeking access to justice in Scotland.

On the Government’s broad approach, we give a cautious welcome to the Bill. Who would not want to explore every opportunity available to use technology to make access to justice easier and less expensive? If online procedures can make access easier—and there is no doubt they can if properly resourced and planned—that is good from a rule of law perspective. The Scottish Courts and Tribunals Service has its own five-year digital strategy, and the approach set out in that document gets to the heart of how we should approach technology in the law when it says:

“Digital is not an end in itself—but it is clear that well targeted development and investment in digital technology can increase the effectiveness and efficiency of the services and support we provide to the judiciary, to all those who use our services and to those who work to deliver them”.

We get what the Government are trying to achieve and support the broad aims of the Bill. It should have a Second Reading and our approach today is one of constructive criticism.

I shall briefly flag up four areas where further debate is needed. First, as already touched on, it is interesting that the Government thought the best way to proceed was to ask one single online procedure committee to look at the possibility of online rules for a huge variety of proceedings in different jurisdictions. The alternative approach would have been to task existing procedure rule committees and rule drafters with expanding online procedures and options in each discrete area of law. These existing committees clearly already have considerable expertise in their particular fields. It would be interesting to know why the Government thought it best to proceed in this way.

The single online committee will potentially be dabbling in very disparate fields of law—from tax to family and social security, and lots in between—and sometimes will be making rules applicable in completely distinct legal jurisdictions. That suggests that a wide variety of expertise might be needed and possibly a committee with a considerable number of members, as the Justice Committee Chair said, yet the committee is comparatively small for such a major undertaking.

The Law Society argues—this was mentioned by the shadow Minister, the hon. Member for Bolton South East (Yasmin Qureshi)—that a committee with such significant powers to change legal processes should include at least one representative from each of the solicitor, barrister and chartered legal executive branches of the law, so that it has access to their varying professional experiences and skills. The fact that there is a solitary IT expert on the committee is also surprising, given the nature of its undertaking. We need to reconsider whether the Government have got the size and make-up of the committee right or whether these criticisms mean it should be amended—or are there other ways to ensure it taps into existing expertise, rather than trampling all over it?

There is currently no scope for representation on the committee from Scotland or Northern Ireland. This point was raised in the House of Lords. There is still a significant question about whether there should at least be the discretion to appoint suitably qualified legal practitioners or judges from those jurisdictions, especially when the committee is working on procedures that will impact directly on them. As I outlined earlier, many thousands of cases each year in Scotland and Northern Ireland could be affected. The Law Society of Scotland also argues that

“there should be capacity in the Bill to include representation from other jurisdictions if appropriate”.

There are different ways we could do that, and they could and should be explored in Committee.

We also need to carefully consider the issues of choice as against compulsion and whether the necessary support will be available to ensure that all can take advantage of new online procedures. As we have heard, there will be some who do not want or just cannot realistically use online procedures. The Minister himself acknowledged that. That might be because of infrastructure challenges. Ofcom’s “Connected Nations” reports remind us of the numbers who do not have access to good broadband or 4G. For many more people, there will be challenges around digital exclusion. There are various ways to measure that, but 10% of UK citizens—5.3 million people—have never used the internet or not used it at all in the past three months.

We must focus on the needs of vulnerable people and how online processes may impact on them and how they are protected. How do we ensure that online courts do not provide a back door for dodgy advisers and others offering dubious advice to people litigating online and that the advice being acted on is not being acted on without oversight?

We welcome the assurances that this is not about blanket compulsion and forcing online procedures on people and welcome the changes in that regard that were made in the House of Lords. In Committee, Members will be able to consider carefully whether those changes are sufficient to deal with the concerns that have been expressed.

[Mr Jim Cunningham (Coventry South) (Lab)]

The hon. Gentleman has made a valid point about people’s interpretations of online information. People often look up medical advice online and often subject it to their own interpretations. We must be very careful about this, because many people cannot go online, and those who can may not be accustomed to, for example, certain legalistic phrases. The language must be simple as well.

[Stuart C. McDonald]

The hon. Gentleman has made a good point, and a useful comparison.

I have mentioned people who may not want to or cannot go online. The other side of the coin is that people should not have to opt out of online procedures if appropriate support would enable them to use those procedures and benefit from their advantages. The Lords introduced welcome additional measures relating to requirements for the provision of support. The Committee will be able to assess whether those measures have sufficient teeth to ensure that concerns that have been raised have been properly addressed. The availability of appropriate support is fundamental to the success of the Bill.

Barely a Bill is passed in this place without the Government’s helping themselves to broad Henry VIII-style powers and leaving too much to negative resolution procedures. That issue arises again in this Bill, and it will no doubt be tackled in Committee stage or on Report. The Law Society suggests that affirmative procedures should be required in relation to regulations under clauses 7(5) and 8(6), which would allow Parliament better scrutiny of new procedure rules as they are developed. I agree with the shadow Minister that we should look closely and positively at its suggestion.

That brings me to a final simple but important point. We must proceed cautiously, and on the basis of evidence. The hon. Member for Bromley and Chislehurst was right to say that we should not rush. As we move forward, we must make sure that we understand the impact of moving things online and respond appropriately.

As the shadow Minister said, research and testing are vital. Let me give just one example. In 2013, the Bail Observation Project found that there were significant variations in the outcomes of immigration bail hearings: 50% of people who were heard via video links were refused bail, compared to 22% of those who were heard in person. Recent research conducted by Jo Hynes of the University of Exeter suggests that that massively differential impact still exists. We need to understand why it exists, and until we understand it, we should be cautious about replacing certain types of hearing in person with video-link alternatives.

Sadly, caution was not what the Public Accounts Committee found when reviewing the Government’s programme of court and tribunal reform last year. It concluded:

“The pressure to deliver quickly and make savings is limiting HMCTS’s ability to consult meaningfully with stakeholders and risks it driving forward changes before it fully understands the impact on users and the justice system more widely.”

We must not allow the development of online systems to outpace our understanding of their impact. We therefore need to look at the role that Parliament has in scrutinising the roll-out of online procedures and consider whether we need to put tougher provisions about post-legislative scrutiny in the Bill so that we can ensure that progress is made at the right pace.

We welcome these proposals, with a degree of caution, and will seek to be constructive critics of the details. They are not a panacea that will cure some of the real problems in accessing justice that have arisen—largely thanks to the terrible legal aid cuts in England and Wales over the past decade—but they can be part of a suite of measures that will allow legal proceedings to be simplified and made more accessible, and we want to support that goal.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 9th July 2019 Commons Chamber

[Mr Gauke]

To be fair to the CRCs, I am not sure that any of them is taking steps to get profits—but perhaps to reduce their losses. In truth, the shareholders of CRCs have somewhat subsidised probation services in recent years. We will hold the CRCs to their contractual obligations and ensure they deliver what they are contractually obliged to deliver.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

9. What steps his Department has taken to prepare for the UK leaving the EU without a deal; and if he will make a statement.

[The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)]

Our justice system is respected across the world. That was the case before we joined the EU, and it will continue to be the case after we leave. The Department has taken all necessary steps to ensure we are prepared for a deal across MOJ interests and for the possibility of a no-deal exit, to the extent it is possible to do so.

This includes working closely with other Departments to ensure that essential services continue; working with suppliers of key products to ensure essential supplies are in place; providing the courts and judiciary with additional training and resources to enable them to prepare for possible changes; and ensuring that contingencies are in place for any potential traffic disruption in the south-east of England.

[Stuart C. McDonald]

I thank the Secretary of State for that answer and welcome the strong statements he has made recently on a possible no-deal Brexit. Does he agree that, regardless of how much preparation is done, the implications of no deal for our justice systems would be dire?

[Mr Gauke]

What I would say to the hon. Gentleman is that leaving the EU without a deal risks some significant impacts across the justice system, including potential disruption to goods and services to our prisons; an increase in case load and case complexity across court jurisdictions; increased pressure on our courts system; the loss of access to several law enforcement tools, including the loss of data exchange tools, making it more difficult to protect the public; and market access impacts on our legal sector, restricting or removing our ability to operate in EU markets. So do I think a no-deal Brexit is a good idea? No, I do not.

--- Later in debate ---

[Mr Gauke]

I thank my hon. Friend, who has been tireless on this cause on behalf of his constituent. Having met Marie McCourt, I know the pain that is suffered by those relatives who never get the opportunity to say farewell to their loved one. My hon. Friend has been making that case very, very forcefully, and I thank him for that.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

T4. Contrary to the Government’s fairly timid review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Jo Wilding’s new report on legal aid for immigration cases warns that urgent policy action is required to avoid catastrophic market failure in England and Wales. Will Ministers read that report and respond with the urgency required?

[The Parliamentary Under-Secretary of State for Justice (Paul Maynard)]

I am always happy to read any report relevant to my brief. We are already reviewing many parts of the legal aid framework, particularly around the thresholds. I will have a look at that report and take it on board.

Serco Justice System

Stuart C McDonald Excerpts

Thursday 4th July 2019 Commons Chamber

[Paul Maynard]

I am not aware of any potential individual prosecutions arising from this investigation. What I can say is that, since the point of this investigation commencing, Serco has had a complete overhaul of its senior executives: it has a new chief executive officer, a new chief financial officer, a new chairman and an entirely new board. Serco has had a thoroughgoing overhaul and now recognises what went wrong in the past.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I congratulate the shadow Minister on securing this urgent question. He is right that right across justice, home affairs and other Government Departments, ill-conceived and badly managed contracts —on tagging, prisons, secure units, probation, immigration removal centres and asylum accommodation—are leaving vital public services in disarray.

The Government finally saw sense on probation, but elsewhere all that seems to happen is that the same small group of companies keeps getting more and more contracts, based on a race to the bottom towards cut-price service provision. Is it not time for a fundamental review of how these contracts are awarded so that the Government are not fishing repeatedly from the same small pool of companies? Even the auditors in this debacle have been fined for their role, so what steps will the Government be taking to improve oversight of this type of contract?

[Paul Maynard]

I always have a regard for the hon. Gentleman, who is a diligent and effective Member of this House, but I have to disagree with him on this occasion. The Opposition seem to have a blind spot regarding the role that the private sector can and should play in the delivery of services within the public sector.

In December 2018, as part of the programme of audits across Government as a whole, the chief executive of the civil service wrote to all Government Departments asking each to include a contract of audit activity in the implementation of the general outsourcing review, focusing on gold contracts—that is, those of high value and high criticality—provided by strategic players. I am sure the hon. Gentleman will be aware, even if he looks north of the border, that in many of these very complex areas of public procurement, the pool of potential companies that can bid for them will, by necessity, be small. That means that we, as Government, have to do our bit to make sure that we audit and assess the delivery of these contracts on the part of these suppliers.

Automatism as a Legal Defence

Stuart C McDonald Excerpts

Tuesday 14th May 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Owen. I congratulate the hon. Member for Huddersfield (Mr Sheerman) on bringing this interesting and important issue to the Chamber, and on the eloquent and passionate way that he explained the background. I also pay tribute to him for his work on road safety over the years.

I, too, apologise in advance to any criminal lawyers or criminal law academics who are watching the debate, as I am about to blunder into it with a few thoughts. In years gone by, I was a lawyer, for my sins, but not a criminal lawyer, so I am somewhat reluctant to wade in.

The debate allows us to consider whether the principles behind the defence of automatism are right and to ask whether there is evidence for the term being too broadly defined so there have been unjust acquittals or for it being too narrowly drawn so people have been convicted who should not have been. As has been explained, in simplified terms, the defence of automatism involves the defendant showing that his conduct was involuntary, so he cannot be held criminally liable for it.

Criminal law in England and Wales and in Scotland recognises versions of automatism. That has been developed case by case under common law. Its terminology and operation, in certain circumstances, can look a little strange and dated. There are differences, but both jurisdictions—of England and Wales and of Scotland—have historically made distinctions between, on the one hand, automatism caused by so-called internal factors, which can justify a plea of insanity, although that has changed a bit in Scotland recently, and, on the other, automatism caused by external factors where the defendant was not at fault for inducing that state.

The key point is that, as a broad principle—I do not think the hon. Gentleman suggested otherwise—the idea that someone cannot be criminally responsible for involuntary acts must be right. Convicting a person for involuntary acts would not serve the purposes of the criminal justice system. We cannot rehabilitate someone who needs no rehabilitation, because they did not choose to do wrong, and we cannot deter people if they have no control over what they are doing. It is fundamentally wrong to punish people where there is no responsibility.

The question that has been posed today, however, is whether that is working in practice and whether it is being interpreted too broadly or narrowly. As with any criminal defence, there will be individual cases where some people—sometimes many people—question whether justice has properly been done one way or another. The hon. Gentleman highlighted some difficult and heartbreaking cases.

The hon. Gentleman also flagged up concerns that the defence has been increasingly relied on by criminal lawyers. I confess that I have not picked up on that, but he is obviously far more engaged in the issue than I am. I certainly agree, however, that it would be good to have greater transparency about it. I am interested to know whether the Minister is willing to try to see whether there is a better method to record how often the defence is being used or seems to be a barrier for the prosecution. We need to know what is happening either way.

On the whole, from what I understand, the balance of case law seems to suggest that the courts will usually take a pretty narrow view of the scope of the defence—the word “scepticism” has sometimes been used. As the hon. Gentleman said, several cases involve drivers, some of whom are diabetic drivers. I found the example of Broome v. Perkins in the textbooks, where the defendant, although in a hypoglycaemic state, was found guilty of driving without due care and attention, because from time to time he apparently exercised conscious control of his car by veering away from other vehicles to avoid a collision, braking violently and so on. In the Court of Appeal, it was said that the defendant would need to show that he was totally unable to control his actions owing to an unforeseen hypoglycaemic attack, that he could not reasonably have avoided the attack and that there was no advance warning of its onset.

In Scotland, the jury manual published by the Judicial Institute for Scotland also seems to be strict in setting out the requirements for defending externally caused automatism. It says that

“the external factor must not be self-induced, that it must be one which the accused was not bound to foresee and that it must have resulted in a total alienation of reason amounting to a total loss of control of his actions in regard to the crime with which he is charged…the whole point of the defence is that the accused was suffering from a total loss of control over his actions in regard to the crime with which he is charged. Unless there is evidence directed to this essential point, the defence is not available. It is a point of such importance that it cannot be left to speculation, and a few casual remarks or feelings by the witnesses will not do. There must be clear evidence to support it, and this means that the evidence must be specific on all details which are material.”

[Mr Sheerman]

Does the hon. Gentleman agree that a real problem with medical evidence, if there is no charge, is that it is difficult for the victims ever to understand what the medical reason was? If there is no trial, there is no explanation of what kind of ill health caused the accident. The fact is that many drivers who are not charged continue to drive and may have the same medical condition. That is a real problem. In Scotland, however, there are more advanced laws on many of these issues than we have.

[Stuart C. McDonald]

I would like to think so, but I am not absolutely convinced.

[Mr Sheerman]

Alcohol.

[Stuart C. McDonald]

Certainly, on alcohol, we have taken the step to reduce the limit up to which people can drive to virtually nothing.

As I say, there has to be transparency. I am not aware that this has caused a problem for the prosecution services, but I am now alive to those concerns and I will perhaps try to establish whether that is the case. In some examples, however, when the burden is on the defendant to prove the case, I am not sure that it would stop a prosecution in the first place—the prosecution would proceed and the issues would come out afterwards. I do not have an easy answer, however, and this is something that I definitely need to look into.

Also, when we look at all these things in the round, the prosecution service has to be aware of what other action needs to be taken to stop such things happening again, even if there is not a prosecution subsequent to an accident of the sort that we have been talking about. There are other disposals or actions available, as the hon. Member for Cheltenham (Alex Chalk) said, in relation to making sure that that person no longer drives, for example. However, we need reassurance that that is definitely happening.

In short, the point that I was making there was that what the courts have been looking for is

“a total destruction of voluntary control”,

to quote one case. The hon. Member for Huddersfield has rightly flagged up a number of other areas of controversy. This issue is not just about driving; there have been a number of cases where the defence of sleepwalking has been used in relation to accusations of sexual offences. However, the principle remains that the defence of automatism must be available if the evidence is there to justify it.

Should there be reform at all? In 2010 in Scotland, the internal-cause “insanity” defence was replaced by a mental disorder defence. This requires that an accused, at the time of the conduct constituting a crime, must have been

“unable by reason of mental disorder to appreciate the nature or wrongfulness of the conduct.”

Then there is a detailed definition of “mental disorder”. As I understand it, that reform has been broadly welcomed. That said, it is only fair to point out that some have criticised the Scottish Law Commission’s report because it ignored “external-cause” automatism, thereby arguably missing the opportunity to ensure that the law here is coherent and comprehensive in relation to what are really two closely related and even overlapping defences.

Of course, the hon. Gentleman referred to the Law Commission in England and Wales, and its report, which I think was done in 2013, when it carried out a similar review. It looked at both types of automatism defence and recommended a new statutory “recognised medical condition” defence, which I think is along the same lines as the Scottish defence. However, it also went for a new and more tightly drawn statutory automatism offence. I also understand that, so far, the Government here have decided not to act on that advice. They might have good reasons for that, but it is obviously up to the Minister to set them out today.

From my point of view, there may well be good reasons for looking at the two sides of automatism together, because it makes a significant difference which is considered, in terms of where the burden of proof lies and what disposals are available to a court if the defence is made out.

I do not come to any fixed conclusion on that, but on the whole I will just say finally that we need defences of this nature to be available to ensure that justice is done. For the most part, the current system seems to be working in practice and the courts have been justifiably restrictive in interpreting the scope of these defences. There will be controversial criminal verdicts—that does not necessarily mean that there is a fundamental injustice in the nature of these defences—but I absolutely take on board what the hon. Gentleman has said today about there being some concern that automatism is being increasingly relied on. That should be looked at. We need more transparency about what is going on—

[Mr Sheerman]

Victims.

[Stuart C. McDonald]

Absolutely—the victims need to know what is happening in a particular case and they also need a full explanation of why any prosecution does not go ahead, including the nature of any medical evidence, if that is at all possible.

I am absolutely alive to arguments for improvement and reform. The hon. Gentleman also made some interesting comments about a compensation scheme. I had not considered that in advance of the debate, but I will go away and consider it too.

I thank the hon. Gentleman again for securing this debate. It has been very interesting and thought provoking, and I look forward to hearing what the Minister has to say.

Draft Criminal Injuries Compensation Scheme 2012 (Amendment) Instrument 2019

Stuart C McDonald Excerpts

Tuesday 14th May 2019 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Evans. I thank the Minister for his explanation of the background to the proposed changes to the compensation scheme; I welcome pretty much all that he had to say, although I share some of the wider concerns set out by the shadow Minister and think they are worthy of consideration. I certainly agree with what both of them said about the work of Baroness Newlove.

For my part, all I need to say is that the Scottish National party welcomes an end to the old “same roof” rule, which is necessary in light of earlier court judgments, but also simply in the interests of justice. The Minister was right to say that this will be challenging both for people who might want to apply for very old cases and for the authority in respect of how it looks at and investigates these cases. It will be important that it is given the resources and manpower to do the job properly.

The Minister rightly flagged the importance of raising awareness of the changes, so that people who are eligible to apply are encouraged to do so. To understand whether we are making sufficient progress on that, it would help to know whether the Minister has an estimate of how many people may be eligible to apply thanks to the changes. That would help us to understand whether there has been sufficient awareness raising to reach the people who need to know about them.

I welcome the broader public consultation that will happen in due course. As ever, I encourage the Minister to pay particular attention to the feedback that comes from stakeholders in Scotland. Although the compensation scheme operates UK-wide, it does so in the context of a different set of criminal laws in Scotland. In short, I very much welcome the proposed changes.

Sharia Law Courts

Stuart C McDonald Excerpts

Thursday 2nd May 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Hanson, and I congratulate the hon. Member for Henley (John Howell) on having secured this important debate about sharia councils. I take part in this debate with some trepidation, as it is a complicated issue, touching on family law, freedom of religion, culture, gender relations and many other issues in between. It is quite right to say that our response should first and foremost be informed by the experiences and views of those most affected: those are, of course, Muslim women, 90% of whom are seeking a divorce. Their experience of sharia councils varies greatly, which reflects the fact that sharia councils themselves vary significantly. Unsurprisingly there is no unanimous opinion, even among Muslim women, on how—or whether—we in Parliament or the Government should respond to some of the issues that have been raised, both today and in other reports.

I too was a member of the Select Committee on Home Affairs when it was looking at the issue of sharia councils. It was probably one of the most polarised issues that I looked at during my time on that Committee, involving widely diverging and strongly held opinions. On the one hand, at some of the events that the hon. Member for Bradford West (Naz Shah) has described, I spoke to women who were absolutely positive about their experience with sharia councils and how they had secured divorces there; others pointed to horrendous practices and discrimination, which we have heard about.

Dr Siddiqui’s report found similar disparities in practice, but that review, as we have also heard, concluded that banning sharia councils is not a realistic option; I support that conclusion. There is demand for advice and guidance, for determinations on the meaning of religious texts and procedures, and for religious divorce. That review warned that if anything, such a ban would likely drive councils underground, making transparency even more difficult and risking more widespread bad practice and discrimination.

The second issue I want to touch on is how civil marriage law can play a role in this area. I make absolutely clear that I am not a family lawyer, so I will not go into fine detail about the specific proposals for marriage law reform in England and Wales that Dr Siddiqui’s review put forward. However, it does seem—the evidence suggests this—that a significant number of Muslim women in the UK have a religious marriage, but not one that is recognised by the civil law. As we have heard, that seriously limits the options and powers available to women, should that marriage then break down.

However, I went on to the website of Glasgow Central Mosque today to see what options there are for marriage. I was met with a well set-out and positive page that starts by celebrating the fact that

“Family life is a building block of a successful society, and marriage is an occasion of great joy.”

That page goes on to say:

“We can perform religious marriages, which are recognised by the law. A marriage ceremony (Nikah) at Glasgow Central Mosque must also be a religious marriage (i.e. the legal equivalent of a civil marriage conducted by a registrar). Our Imams are authorised to solemnise religious marriages, therefore it is not necessary to have a separate civil marriage. If the civil marriage has already taken place, please bring the marriage certificate on the day.”

I read an article by a Muslim woman who is a solicitor in Glasgow, who wrote about how the culture in the Glasgow mosques is one of working together to ensure that the civil requirements are met at the same time as the religious ones. It seems—of course, I stand to be corrected—that the general practice in that city has become to meet both religious and civil requirements at the same time. It would be good to know how that culture has come about. It would be good to find out what impact that has had on the number of women who are without a civil marriage in Glasgow and Scotland, and whether the doubling-up of those processes has been encouraged or helped by provisions in family law—slightly different in Scotland from those in England and Wales—or whether something else has made that happen. That could inform our thinking, both in Scotland and in England and Wales, as to whether there needs to be legal change or whether we can do more in terms of culture and awareness raising, as the hon. Member for Bradford West has said.

[John Howell]

For many years I have been an organist, and I have played at Catholic weddings. In many cases, the service has been delayed because of the late arrival of the registrar. A marriage conducted by a priest is religiously legal, but in order to make it civilly legal, a registrar has to be there. That seems to be the established position in the Catholic Church; as I understand it, only in the Anglican Church and the Church in Wales is the priest automatically a registrar.

[Stuart C. McDonald]

That is interesting to hear. If there is a way to remove such complications to ensure that such delays can be avoided, it should be looked at. I understand—I repeat, I am not a family lawyer, so I might be completely wrong—that that is not the position in Scotland, where priests are generally able to conduct both the religious and civil ceremonies in one go without the presence of a registrar. To my mind, that clearly makes things simpler.

The second group of recommendations in the Siddiqui report is essentially about empowering women, a topic on which I suspect we will all be at one. That seems to be front and centre of the issue that we face. There absolutely must be awareness raising about rights; for example, many of those who have ended up with a religious but not a civil marriage have done so purely because they did not know about the law or their status.

Awareness-raising about civil rights is only the first step in empowerment. Support is also needed to ensure that all are able to overcome the potentially “huge cultural barriers” described in the report, which can inhibit the exercise of rights even when people are aware that those rights exist. Those barriers stop women choosing to pursue civil remedies instead of religious ones. We need to give greater backing to all the NGOs, advice centres, human rights bodies and others that can provide that support. That is not just about supporting women to overcome barriers; those organisations can help to lower the barriers in the first place, encouraging a culture that respects women who choose to use their civil rights in the first place.

Do we need to go further? That question takes us on to the third group of recommendations in the Siddiqui report. The steps that we have just discussed about empowerment tend to focus on providing alternatives to sharia councils. We also need to ask whether we can improve practices in sharia councils themselves, which is perhaps the toughest issue.

As we have heard, the Siddiqui review recommended a form of regulation via a state-constituted body and a code of practice, and many sharia councils and women’s organisations supported such an approach. Presciently, the report acknowledged that the Government could be reluctant to adopt a wholesale regulatory approach for fear of being seen to legitimise a different system of law. I can understand that response, but it should not be an end to the matter. Not adopting full-scale regulation does not absolve us of the need to look at the seriously bad practices that have been recorded in some cases, how that relates to the law, and whether the law can be changed in other ways to stop those practices. If I understood it correctly, that was what the dissenting opinion in Dr Siddiqui’s report was getting at.

For example, should we require in law that anyone providing advice about family law matters must provide signposting to civil remedies? How should the law respond if an institution is seen to aid and abet domestic violence by coercing a victim to mediate with the perpetrator? Are there existing regulations in respect of “service providers” that could be strengthened and better applied to stop the serious issues that we have seen? What should happen if evidence shows that councils are undertaking tasks that should be exclusively for the courts? Crucially, given that consent is so important, what is the legal response when certain councils are engaging in proceedings, providing opinions and making judgments when there was never genuine consent to the process in the first place? I do not have the answers to all those questions, but we have to consider them and be led by the evidence, particularly the evidence we hear from those who have been caught up in these processes.

On balance the Siddiqui review is correct that banning would be ineffective, counterproductive and not justified. The main objective must be to encourage the use of civil processes and access to civil redress and rights where appropriate. Marriage law changes might help with that, but more importantly, so too might policies that empower women, such as support for NGOs and other groups. While a distinct form of regulation and a complete new regulatory regime may not be the right approach, that does not mean that we should not be looking at whether other civil and criminal laws and regulations could be better applied to stop or prevent some of the bad practice we have heard about. If we do all that, hopefully we can continue to protect the sharia councils that are doing a job that accords with all the values we want to be upheld, while at the same time clamping down on those that are not.

Knife Crime

Stuart C McDonald Excerpts

Monday 25th March 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Davies. I thank the petitioners and the Petitions Committee for bringing this urgent issue to our attention. I also thank the hon. Member for Hartlepool (Mike Hill) for his very able and comprehensive introduction to the subject, and I thank all hon. Members for their thoughtful and thought-provoking speeches. As others have done, I want to start by reflecting on the horror and the personal tragedy that each instance of knife crime represents. Our thoughts and our hearts go out to all who have been impacted, including whole communities such as Havering, Dudley, Hammersmith, Croydon, Wood Green and many others across the country.

The petition—like the debates that we might have tomorrow on the Offensive Weapons Bill—asks where the balance should lie between different policy responses to knife crime. The petitioners have placed their focus on sentencing, and that is entirely understandable, particularly for those who have experienced or been affected by knife crime. Of course, there must be proper and appropriate punishment of offenders. In Scotland, sentencing has been a small part of the response, as the hon. Member for Romford (Andrew Rosindell) mentioned earlier. Maximum sentences for possession have been increased to five years, and the average length of custodial sentences for knife possession and offences has increased, too, albeit without the introduction of mandatory prison sentences, about which I share the scepticism of the hon. Member for Hammersmith (Andy Slaughter).

The key point is that sentencing policy in Scotland is broadly in the same ballpark as that in England and Wales. I do not agree that the upsurge in knife crime in too many areas of England and Wales is down to a lack of appropriate sanctions. There is no evidence for that. As the hon. Member for Croydon Central (Sarah Jones) said, there is little or no evidence that increasing the length of sentences will have any significant deterrent effect.

I share the views of the hon. Member for Hammersmith. We tend to put far too much faith in sentencing and harsh sentences to fix all of society’s ills, whereas prison often causes more problems than it solves. Short sentences in particular often operate almost as a training camp, as the hon. Member for Croydon Central said. The focus should be on other policy areas, many of which were touched on during the debate and which I will refer to briefly now.

Policing numbers are also relevant, despite the Prime Minister’s protestations. Hon. Members have been almost unanimous about that today, and senior officers have said the same thing. Although I am always reluctant to compare apples and oranges—it can be a crude way to do things—I was struck when I read the other day that in September 2018 there were roughly 32 officers per 10,000 of the population in Scotland, compared with around 21 officers per 10,000 in England and Wales. That is a hugely significant difference. There might be other explanations for it, but if I were an MP in England and Wales, I would ask questions about how that gap had arisen. Members referred to the need for local policing or hotspot policing. That is necessary and we need to see resources invested in it.

I turn to austerity and resources more generally. Last week, witnesses before the Home Affairs Committee were clear that austerity and cuts to services were having a significant impact. The witnesses said that safe spaces, youth clubs and council-funded sports facilities and teams have faced the brunt of the cuts. Those are places where young people find diversion and meet role models, and the cuts undoubtedly have an impact. Services such as social work, employability and mental health are all buckling under the strain, and all those services count in the battle to stem the tide of knife crime.

Some hon. Members referred to stop and search. I agree that that can play a role, but it is far from an answer in itself, and it must be used extremely carefully and in a way that does not risk undermining trust in the role of police. It must be done on the basis of reasonable suspicion. “Intelligence led” and “proportionate” were the words that the hon. Member for Henley (John Howell) wisely used.

Tomorrow, or soon, we will debate knife crime prevention orders. We heard some differing views on that subject today. We do not have them in Scotland, and based on what I have heard so far I severely doubt that I would like them to be introduced. I am grateful to the hon. Member for Croydon Central for all the work that she does with the all-party group on knife crime, and for the event that she organised this lunchtime at which we heard from a range of actors about why knife crime prevention orders appear to be filling a gap that does not really exist and that lacks an evidence base. Instead, they risk seriously counterproductive unintended consequences.

Putting that aside, more generally I welcome most of the provisions in the Offensive Weapons Bill. However, it is a small piece of a much bigger picture, and the area where we can make a significant long-term difference is away from purely criminal justice measures. That is where Scotland has already seen some success, if only because we experienced horrendous levels of violence not so long ago that required an urgent response. It is important to remember just how bad the position was. As recently as 2005, the UN talked of Scotland as among the most violent countries in the developed world, and the World Health Organisation referred to Glasgow as one of the murder capitals of the world. Although we still have a long way to go, the evidence points to significant success in reducing violence, as the hon. Member for Romford pointed out.

Recorded violent crime in Scotland came down by 49% over the decade to 2016-17. The homicide rate halved over the decade from 2008 to 2018. Offending by young people has halved since 2008, and various other dramatic statistics show that a long-term public health approach can make a difference. Although other policies have undoubtedly played a part, including those related to sentencing, I think we all know that that public health approach has been responsible for turning the tide.

Such an approach is about addressing the underlying risk factors that increase the likelihood that people will become a victim or a perpetrator of violence. It means an evidence-based, whole-of-Government approach that seeks to tackle the causes of violence, rather than just the symptoms. It is about prevention and early intervention, rather than action after tragic events.

Members know about the work of the violence reduction unit, together with organisations and campaigns such as No Knives, Better Lives and Mentors in Violence Prevention. On the ground, it is about seeking opportunities to divert from prosecution, community alternatives to secure care and custody, and improving reintegration back into the community. That means improving life chances, promoting school inclusions, strengthening relationships and engagement, building life skills, improving health and wellbeing, and trying to improve employability.

None of that is new, much of it is common sense, and all of it has been learned from other cities such as New York and Chicago, and tweaked and honed to work in Glasgow and other parts of Scotland. I hope that the same thing can work over the longer term in parts of England. It is about not directly copying what has gone on elsewhere, but learning what works and what can work, and tailoring it to local circumstances. I welcome, for example, the fact that Mayor Khan has established a violence reduction unit in London.

The UK Government have published their serious violence strategy, which includes a move towards a public health approach. Whether that is a modest change of emphasis or a full-scale rethink, only time will tell; however, to save lives there should be a genuine and cross-Government commitment to pursue that approach, making available the funds that are needed.

I support what the hon. Member for Gedling (Vernon Coaker) said when he raised what seems almost to be a lack of urgency in the response to this national crisis—or epidemic, as hon. Members have described it. The problem has been getting worse for the best part of two years, but until now the response has largely been local and operational, rather than strategic and at a national level. If not through Cobra, there has to be another type of serious, cross-Government co-ordination. This matter needs national direction, and it needs it urgently.

Oral Answers to Questions

Stuart C McDonald Excerpts

Tuesday 12th March 2019 Commons Chamber

[Rory Stewart]

Some of the staff at Nottingham, to which the hon. Gentleman is referring, have come from other establishments in other parts of the country, but when they return they will be replaced because we must ensure that Nottingham is fully staffed. That is essential particularly in order to continue with delivery of the key worker programmes so that each prison officer can be paired with six prisoners. That will be vital to getting violence under control in Nottingham.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

9. What recent assessment he has made of the implications for his departmental priorities of the UK leaving the EU.

[David Linden (Glasgow East) (SNP)]

24. What recent assessment he has made of the implications for his departmental priorities of the UK leaving the EU.

[The Lord Chancellor and Secretary of State for Justice (Mr David Gauke)]

My Department continues to ensure that the necessary preparations are in place to mitigate potential impacts associated with leaving the EU wherever possible. For all scenarios, these preparations remain on track. In a no-deal scenario, we do not expect any immediate impacts on our departmental priorities, although there are risks in terms of pressures on the courts. We will react to longer-term impacts that are harder to predict, such as financial impacts, should they arise.

[Stuart C. McDonald]

In recent years, 15 German nationals have been extradited from Germany to the United Kingdom, including for some very serious offences, but last month that country made it clear that it will no longer extradite its citizens to the UK after Brexit. What other countries does the Secretary of State anticipate will take a similar approach, and what, if anything, can he do to respond to this massive Brexit headache?

[Mr Gauke]

In terms of the European arrest warrant, we have to accept that as a consequence of Brexit the current arrangements will no longer be available, but we will continue to work very closely with EU member states to ensure that we can address this matter as effectively as we can.