Leaving the EU: Justice System

Alex Chalk Excerpts

Thursday 29th March 2018 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

It is a pleasure, Ms Buck, to serve under your chairmanship.

I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.

We received the Government response to our report on 1 December last year. I am glad to see the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), in her place today. She has joined the Department since that date, so if I press a little harder on some things than on others, I am sure she will understand that they are not meant in any personal spirit. I think she also understands, from her own experience at the Bar, why there is a great need for more precision and more detail about what is going to happen.

I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.

I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.

Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of the English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.

I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.

I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.

I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.

It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on 21 March, which is only about a week or so ago, to the Constitution Committee of the other place. In essence, the position is that at the moment, clause 6 gives what on the face of it would appear to be wide discretion in how the British courts will apply and have regard to European Community law once we have left. There is a perfectly understandable precedent, of course—it is perfectly well established that British courts will take into account relevant law from other jurisdictions when it is applicable to the facts and law of the case that they are considering.

However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it

“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.

[Robert Neill]

My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.

My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:

“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”

That is exactly the point that my hon. Friend made so powerfully.

I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.

The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:

“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]

That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.

The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.

There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.

There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.

I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.

--- Later in debate ---

[Alex Chalk (Cheltenham) (Con)]

It is a pleasure to serve under your chairmanship, Ms Buck, and to follow the hon. Member for Enfield, Southgate (Bambos Charalambous). When it comes to the implications of Brexit, it is fair to say that the impact on the justice system is not always at the top of everyone’s list of priorities. It might even be thought of as a niche issue, but it is absolutely crucial. If I could do one thing today, it would be to emphasise that the justice system—the legal structures and arrangements that we have—underpin vital aspects of our democracy, the strength of our economy and the credibility of our institutions, including our own Parliament. It safeguards the rights of citizens and the balance of our constitution. When we discuss this issue, it is important to acknowledge that it resonates far more widely than might initially be perceived.

I will take a few moments to build on the remarks made by the right hon. Member for Delyn (David Hanson), but will preface that with one point. One of the striking things in my experience on the Justice Committee is the extent to which it has been possible to act in a truly cross-party way, which is of itself an acknowledgment that these issues are not party political and have the wider impact that I referred to.

Before moving on to the issue of crime and security, I want to echo the remarks made by the Committee Chair, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), about interpretation of retained law. It is important to make the point that judges are rightly nervous about being dragged into the political arena. We take it for granted that judges interpret the law without fear or favour. Typically in this country, they do not get into the papers as they do in other countries, and that is exactly the way we want to keep it, but we must recognise the reality of the situation. If there is a case in which a judge of the Supreme Court decides to pray in aid European case law, that will be perceived to be a far more political decision than it would have been perceived previously. People will say, “That’s it. Here we go. These judges are intending to thwart the will of the people and keep us in the European Union via the back door.” I completely understand that judges are rightly wary of being perceived in that light. It is incumbent on the Government to give them all possible clarity and guidance so they can say, “This is a matter for Parliament. Parliament has given us this guidance. If you want it changed, speak to your MP.” That is appropriate and fair.

Many, including our Committee and the Bar Council, have called for crime and policing and the wider issue of the justice system to be given a separate negotiating track. Those issues are of such importance that, in the words of the Bar Council, they cannot be bargained away like a lamb quota. They are of such significance to our democracy and our economy that they ought to be given priority. The rule of law, access to justice and crime and policing measures are not trifling matters.

It is important to recognise that our Prime Minister, when she was Home Secretary, recognised the importance of the European arrest warrant. After all, in 2014, when she was Home Secretary, she exercised the UK’s right, which was secured at Lisbon in 2007, to leave and then rejoin selected justice and home affairs measures. She said that losing access

“would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe”.

In our country, the National Crime Agency said that leaving the EAW would pose a huge public protection risk to the UK. It has been broadly effective.

Although I entirely accept that the British Government’s intention is to replicate the EAW—I suspect the EU will want to do the same—complexities will arise. One very obvious example that people discuss is that many countries in the European Union have constitutional bars on extraditing their own citizens to non-EU countries. How will we deal with that? I am sure there is a way through it, but it must be discussed. The right hon. Member for Delyn ably made the point that we cannot leave that sort of thing to the last moment, because that will lead to criminals going free and justice being evaded.

Through the European Criminal Records Information Exchange System—ECRIS—the UK exchanges tens of thousands of pieces of information about criminal convictions each year. The second-generation Schengen Information System—SIS II—gives the UK real-time access to all European arrest warrants and other alerts on matters including missing persons. The point is that that has real-life implications. To give an example from September 2017—in fact, the Government’s own example—a prolific sex offender fled the UK on bail, was arrested in France after a road traffic collision, gave a fake name, but was arrested on a SIS II alert that had been entered by UK law enforcement. No wonder the National Crime Agency says that

“loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety”.

It described it as a game-changer for UK law enforcement.

I am sure we will be able to negotiate an arrangement with SIS II but, lest we forget, it applies to only 26 EU member states and four non-EU Schengen countries—Switzerland, Norway, Liechtenstein and Iceland—all of which have different, separate and nuanced arrangements. It is not straightforward. Of course, the EU will need to be flexible here. If ever there were a requirement to think flexibly to make something work, this is it. The EU will need to take account of the UK’s historic role in setting up some of these arrangements, developing the databases, supporting them, and contributing enormously to that crucial information.

The big stumbling block that we will have to deal with is the issue of access to data—the so-called adequacy decision. Unless we can solve that and satisfy the European Union that we can have an arrangement that allows that data to be shared, that will be the pillar of the future arrangement. If that pillar is in place, we will have difficulties. Lest we forget, any arrangement we agree with the European Union could get referred to the European Court of Justice, which could strike it down. It is critical that we give this matter early attention. If we do not, there is a danger to justice and of criminals going free. That is why it must be given the most urgent priority.

--- Later in debate ---

[Lucy Frazer]

I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.

The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. The hon. Member for Enfield, Southgate (Bambos Charalambous) identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too. She said

“it would make sense to continue to recognise each other’s qualifications in the future.”

That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.

My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.

My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.

My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.

In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.

The right hon. Member for Delyn (David Hanson), the hon. Member for Bolton South East (Yasmin Qureshi) and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implementation period, and we have done that. We are now turning to the matters of the future partnership deal and security.

We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.

[Alex Chalk]

We would all be interested to know whether those matters will be considered at the outset, potentially separately from other matters, or whether they will be thrown into the mix as something potentially to be bargained away.

[Lucy Frazer]

My hon. Friend should not assume that those points have not yet been considered. We are moving from an EU perspective to discuss these issues, and they will be considered.

--- Later in debate ---

[Lucy Frazer]

I expect that the deal, of which that will form part, will be put to Parliament.

My hon. Friend the Member for Banbury (Victoria Prentis) rightly identified the importance of mutual enforcement and the mechanism to secure our future relationship. She asked for specifics in relation to the future relationship. The Government are looking at a number of options and are confident that an option will work. There are examples out there that other countries have used, and we would like a bespoke arrangement that works for our country.

My hon. Friend the Member for Cheltenham made an important point about the independence and integrity of our judges. I agree that it is not for them to make political decisions in exercising their independent function as the judiciary. As a barrister, I regularly referred to foreign law—I am sure he has, too—in support of points I made in courts for a number of years to support or distinguish cases. That is not an unusual feature of what goes on in our tribunals.

[Alex Chalk]

My hon. and learned Friend is being generous with her time. The reality, however, is that looking to the High Court of Australia for interpretive guidance is entirely different from looking to the European Court of Justice in the post-Brexit context. One is not political and the other potentially is. The court of public opinion is a concern. That distinction must be taken into account.

[Lucy Frazer]

I understand the point, which my hon. Friend makes articulately. He is right that judges need guidance, and as I said the Government are looking at clause 6 as the Bill goes through the House.

My hon. Friend asked whether justice should be considered separately. The chairman of the Bar Council raised that point with me and with the Secretary of State. I understand and agree on the importance of the justice deal, which he reiterated throughout his speech.

The hon. Member for Stretford and Urmston (Kate Green) made an important point about children. I hope she will be pleased that, in the European Council guidelines on 23 March, the EU specifically stated that it is interested in considering judicial co-operation in matrimonial parental responsibility. Hon. Members have made important contributions on an important matter, and I am grateful to have had the opportunity to answer them.