Future Relationship Between the UK and the EU

Debate between Andrew Mitchell and Robert Neill

Wednesday 18th July 2018 Commons Chamber

[Mr Mitchell]

That is a very true maxim, and one that is engraved on the walls of the Government Whips Office.

It seems to me that there are now really only two possible outcomes. The first is a deal based very largely on the Chequers settlement. Both my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) have honourably and eloquently voiced reservations and no one is going to be entirely satisfied with what has been produced, but the current Administration have basically bet the farm on the Chequers formula and will now have to repel all boarders, if I may mix my metaphors, whether from Brussels or from Somerset.

Many of us regret the Government’s decision to give in at the first whiff of grapeshot emanating from the west country earlier this week, precisely because giving in will make it more difficult to resist counter-pressure from other directions for change. It is extraordinarily unlikely that we will do better than the plan set out in the White Paper, but there ought to be enough in the broad Chequers outline for people of good will to work with and coalesce around.

[Robert Neill]

I entirely agree with what my right hon. Friend says. Does he recognise that that is also the sentiment of businesses in this country, from manufacturing through to the key financial services sector? Does he also agree that ultimately the Conservative party is a pragmatic party rather than a rigid one, and imperfect though any deal or proposal may be, it is worth going for?

[Mr Mitchell]

My hon. Friend makes a wise and sensible point.

I have just set out the first option. The alternative option, I believe, is no deal, and I fear it is as simple as that. If there is no deal, I am sure we will survive and all will be fine in 10 years’ time, but it will not be fine at the outset. No deal—at least at first—will threaten our levels of growth and risk the living standards and prospects of those we are sent here to represent. It risks endangering the opportunities we want to see for our constituents, not least the younger ones leaving education and entering the world of work. And it will be this Administration who will be blamed: whether people voted leave or remain, the Conservative party owns this process and will be held to account for no deal. In any event, the Government need now to increase massively their planning for this eventuality and, in my submission, to report to Parliament in detail on it when we return in the autumn.

I have one final point to make. There are those who, with great eloquence, advance the case for a second referendum, but I have come to the conclusion that while it is just possible that Parliament might wish to seek public endorsement of the deal itself, it is most unlikely. That is because if we held another referendum with a different result, why not have the best of three? We see ourselves as a serious country, we have settled the matter in a significant referendum, and for better or worse we are leaving.

Sanctions and Anti-Money Laundering Bill [Lords]

Debate between Andrew Mitchell and Robert Neill

3rd reading: House of Commons & Report stage: House of Commons
Tuesday 1st May 2018 Commons Chamber

[Mr Mitchell]

I will come to that point in a moment, but I hope that my hon. Friend will extol to his friends in the BVI the fact that this is not something that they should regret and seek to avoid, but something that offers them real commercial and economic opportunities.

The second argument, as we have heard, is that the territories already have closed registers that are available to law enforcement authorities and HMRC which, in the case of terrorism, will react promptly—almost within an hour. That is of course true, but it completely misses the point. That point is made eloquently but passively by the Panama and Paradise papers: it is only by openness and scrutiny—by allowing charities, NGOs and the media to join up the dots—that we can expose this dirty money and the people standing behind it, and closed registers do not begin to allow us to do that.

[Robert Neill]

I understand my right hon. Friend’s desire to achieve this measure and recognise the work that he has done on it, but I want to follow on from the point made by my hon. Friend the Member for North West Norfolk (Sir Henry Bellingham). The Government of Spain, for example, often use broad-brush terms such as “tax haven” against the law-abiding British territory of Gibraltar. Will my right hon. Friend extol the fact that Gibraltar has complied and continues to comply absolutely with all EU requirements? We do not help the overall cause by allowing British territories that comply with the rules to be tarred with the same brush as those that do not, as some people will use that against law-abiding British Gibraltarian citizens’ interests.

[Mr Mitchell]

My hon. Friend makes an extremely good point about Gibraltar. I have heard him speak about that subject in the House previously, and what he says is absolutely right. Last night, I received a three-page letter from the Chief Minister of Gibraltar. I was at a loss to understand why he felt that new clause 6 negatively affected him, since he has already committed, through the EU directive, to implement the whole of the new clause one year earlier than is specified. I therefore feel that the Chief Minister and my hon. Friend should be content with new clause 6.

Joint Enterprise

Debate between Andrew Mitchell and Robert Neill

Thursday 25th January 2018 Commons Chamber

[Robert Neill]

There are a number of areas where changes are needed. I have great respect for the work of the Criminal Cases Review Commission, but I am conscious that it is under pressure both in terms of resource and of its terms of reference. It would not be unreasonable to look at that. Miscarriages of justice do occur. I know that full well because I vividly remember prosecuting one once—not in a murder case, but in a rape case. At the time, the evidence and the legal test appeared compelling, but, thanks to the work of the Criminal Cases Review Commission, evidence came to light, and I had no hesitation in not seeking to resist the appeal when it came to the Court of Appeal a second time. Its work, therefore, is really important. It is also important that it has the means to carry out its vital job, as its role is a significant one. However, there are other gaps that we must look at as well.

Everybody accepts now that there was a serious departure from good reasoning in the case of Chan Wing-Siu in Privy Council back in 1985. When one reads the case, the odd thing is that the judgment, which was described as “taking a wrong turn” in the Supreme Court, was, actually, almost not based on the principal facts or arguments that had brought the appeal to start with. The noble Lord, the member of the Privy Council, giving the judgment in that case rather went off on a tangent and developed what was then regarded as the concept of secondary parasitic accessory liability.

The matter could have been resolved perfectly well on the facts of its own case. It is set out very well in what is a very detailed judgment of a strongly constituted Supreme Court in the Jogee case. I certainly do not fault the judgment of the Supreme Court in Jogee at all. It is exceedingly well-reasoned, and it is significant that not only the then President of the Supreme Court, Lord Neuberger, but the current President, the then deputy president, Baroness Hale, were there. The then Lord Chief Justice, Lord Thomas of Cwmgiedd, took the unusual step of sitting in the Supreme Court because of his experience in criminal justice matters. Intellectually, the Supreme Court in Jogee got the answer right and said that the approach, which had encompassed so many people into secondary liability in homicide offences, was wrong. However, some practical errors remain in its application.

[Mr Mitchell]

I am most grateful to my hon. Friend for giving way. He is a lawyer, so can he explain to me, as a layman, why, following this extremely well-written judgment on Jogee, which I have also read, the criminal justice system did not react with enormous alarm and immediately set in train reviewing the very large number of cases affected by that judgment?

[Robert Neill]

That brings me to my next point. There is a concern that, in practice, the filter effect that has been put to the bringing of appeals out of time and the way that it has been interpreted in cases such as Anwar and others has been particularly restrictive. That is the difficulty. It is very clear that the Court of Appeal in the Anwar case and subsequent cases has taken a very narrow interpretation of the substantial injustice point. That does not necessarily have to be the case on the basis of Jogee, but it was always made very clear in the Supreme Court’s judgment that one should not assume that the Jogee case would mean that every conviction for murder on the basis of joint enterprise should be overturned, or that in many cases, even where convictions for murder were overturned, there would not also be a conviction for manslaughter, where appropriate, but the level of foresight and involvement was less. That is the important point that we have to consider.

None the less, it is really important that we get to a situation in which people are convicted, certainly, of offences where they have done wrong, but they should be convicted of and sentenced for offences that properly reflect the level of culpability of their behaviour. When we do not get that right, confidence in the system is understandably undermined. That is my concern, which is shared by the Members who have already spoken, about the difficulty of bringing cases out of time to the Court of Appeal. Clearly, it is something that needs to be looked at. If the rule of precedent makes it difficult for a court to do that, perhaps Parliament and Government should indeed consider it.

I just observe in passing that there is, in any event, the proviso to the Criminal Appeal Act 1968, which would mean that if, once the case has been heard, no material injustice occurred, the conviction can be upheld. At the moment, we have a double test: a test to bring the appeal out of time; and then the proviso. The difference is that, in the test to bring the appeal out of time, the onus is on the appellant to meet that test, whereas, under the Criminal Appeal Act, the test in relation to the proviso puts the onus on the prosecution. That is something that needs to be considered.

When the Justice Committee looked at this matter with some care in evidence sessions in the last Parliament, the view was that it had to be seen in the context of a very unsatisfactory state of the whole law of homicide. The distinction between murder and manslaughter remains extremely unclear in this country. Unfortunately, the Government have not so far taken up the opportunity of examining that. The logical route would be to ask the Law Commission to carry out such an examination.

In evidence to the Justice Committee in the last Parliament, Professor David Ormerod, a former chair of the Law Commission, a senior commissioner for criminal law and a distinguished academic Queen’s Counsel in criminal law matters, identified exactly that point. He said that a review of the law of homicide still represents the

“best solution”

that

“could encompass the decision in Jogee.”

It would enable us, thereafter, to encompass the consequences that stemmed from it. Referring to the Supreme Court’s decision, he said that

“they are constrained, as ever in the common law, by the facts of the case and the nature of the argument.”

That is our common law system. He went on:

“It was not possible for them to offer a comprehensive review of the whole of the law relating to secondary liability, which the Law Commission could do”.

One of my asks of the Government, as well as revisiting the test for bringing the appeals out of time, is to take up the Law Commission’s willingness to examine that area. There is vast expertise in the Law Commission, which is sometimes under-used. It can look at the matter dispassionately and set the difficulty that we have with secondary liability in these cases into the broader difficulties that we have with the law of manslaughter. We heard compelling evidence from criminal practitioners, representatives of the Criminal Bar Association, about the real difficulty and complexity of giving direction to juries in manslaughter cases.

Judges have given most careful directions, after discussions with counsel on both sides, but none the less they frequently find juries returning and sending a note seeking further clarification. The greater the lack of clarity, the greater the risk of injustice. I hope that issue can be resolved. I suggest to my hon. and learned Friend the Minister, whom I welcome to her post, that that would be a sensible and measured approach to find an intellectually sound way forward on this intractable issue.

The other matter that I would like the Minister to consider is the review of the Crown Prosecution Service guidelines, which the Justice Committee has taken evidence on. The fact that the review is taking place is welcome. The hon. Member for Manchester Central and my right hon. Friend the Member for Sutton Coldfield referred to the disproportionate impact that the use of prosecutions using joint enterprise has on certain communities.

The fact is that a doctrine developed some 300 years ago still has effects on the social life of 21st century Britain, and those effects are very different from what Lord Hale described in his “History of the Pleas of the Crown” in about 1670. We need to have a means of applying that prosecutorial tool in a way that reflects modern society.

I hope that the public interest element of the Attorney General’s guidelines can be strengthened to consider the appropriateness of using this tool in the way we have discussed, given the impact on certain communities within the United Kingdom. I hope that those are constructive suggestions that we can take forward from this debate.

Tax Avoidance and Evasion

Debate between Andrew Mitchell and Robert Neill

Tuesday 14th November 2017 Commons Chamber

[Mr Mitchell]

I am coming on to precisely that point.

Like many Members, I have been visited by senior Ministers of almost all the overseas territories, and the position of the territories is best summed up by the prayer of St Augustine: “Oh Lord, make me chaste—but not yet.” The territories put two specific arguments. I call the first the Dutch Antilles argument, which is that if the territories have open registers, the hot money will head off to the Dutch Antilles. There is momentum around the world, thanks to David Cameron and George Osborne, to attack such ills and unfairnesses. Havens that embrace an open register will get an advantage from being at the front of opening up to billions of pounds of legitimate business.

The second argument—in a way, this is the one we have to address head-on—is that the territories’ private registers are already available to lawmakers and regulators, such as HMRC. The territories proudly say that they will turn round inquiries from HMRC within a matter of hours, which is good, but it completely misses the point, as the recent release of information shows. Registers must be open to the media, to journalists, to non-governmental organisations and to those who can join up the dots. The regulatory authorities, with the best will in the world, are not in that business. Narrow questions, drawn from regulatory authorities, simply do not begin to suffice.

[Robert Neill]

I refer to my declaration in the Register of Members’ Financial Interests. My right hon. Friend makes a fair point. Does he also accept that it is fair that we should not lump all the overseas territories into one basket? Some are much more compliant than others, Gibraltar being one.

[Mr Mitchell]

My hon. Friend makes a good point. I specifically exclude Gibraltar from what I am saying because it is not an example of what we are talking about.

Time is short. My final point is that the United Kingdom led on the 0.7% target. Around the world, the United Kingdom is looked to for leadership on international development. International development is part of this Parliament’s identity, it is who we are and it is part of global Britain. We have an obligation, not least to our own taxpayers, to champion transparency and openness and to have zero tolerance towards corruption.

When we first came into government in 2010, the Department for International Development led the way with its transparency guarantee. We openly published all expenditure above £500 on the internet. It may be a cliché, but sunlight really is the best disinfectant. That is at the heart of what we are talking about today.