The UK’s Justice and Home Affairs Opt-outs
Debate between Bernard Jenkin and Robert Buckland(10 years, 4 months ago)
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Mr Robert Buckland (South Swindon) (Con)
It is always a pleasure—nay, an honour—to follow my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg), who speaks with vigour and all the colour that we have come to expect from him. Those of us who have known him since long before 2010 know that he is characteristically forthright on these issues. Whether he is absolutely right on them is another matter, however, and it is to the issue about which he has rightly expressed concern today that I now turn, bearing in mind the time remaining and the need for other speakers to make their contributions.
Yes, the opt-ins do involve some concession of sovereignty. To try to deny that would be wholly wrong. The issue, therefore, is one of competence and the extent to which the European Court of Justice in Luxembourg determines issues that fall to be decided as to the interpretation and operation of the measures, subject to the opt-in. On that, to some degree I share some of the concerns raised by my hon. Friends on the Conservative Benches.
I am an opponent of judicial activism. As a politician who is philosophically of the centre-right, I do not believe that it is for judges to interpret treaties and other documents as living instruments that adapt according to their view of the world at any one time. We see that problem in the Court at Strasbourg and the Court in Luxembourg, but we also see that problem in the courts here in London, here in England, here in Wales, here in Scotland. This is not an issue that is particular to Europe and its institutions. That is a very important point when we remember the nature and scale of the task before us, because, to my mind, this is not a debate between Westminster and Brussels or Luxembourg; this is a debate about whether it is legislators—politicians—who ultimately determine the extent and ambit of our laws, or whether, as increasingly is the case, our laws are interpreted in different ways by judges.
The old certainty of politicians passing and enacting the laws and judges implementing them and making determinations on a case-by-case basis gets more blurred with the passage of the years, and that worries me, as a Conservative, and I know it worries all my fellow Conservatives. I know it worries my right hon. Friend the Lord Chancellor. We discussed the matter only yesterday in the Justice Committee, and he made some very wise interventions about his concerns about judicial activism.
Therefore, I thoroughly understand and embrace the concerns that are being expressed by my hon. Friends. What I take issue with them on is this: the full extent to which the European Court of Justice will have jurisdiction over the general run of justice and home affairs in this country. I accept that on the opt-out issues it will have jurisdiction, and there are dangers that, as we have seen with other interpretations—for example, of the free movement directive—there could be judicial creep and an extension beyond the original intentions of those who framed the directives we are talking about. But when it comes to the fundamentals of English and Welsh justice, I see no threat to the long-established traditions, customs, laws and practices that we have in our criminal courts. I see no threat to the principle of trial by jury. I see no threat to the inferences that are to be drawn from the exercise by suspects of their right to silence.
We have had debates on these things. I recall going with my right hon. Friend the Chair of the Justice Committee to Brussels to discuss a directive, which is now coming to the fore, about the inferences to be drawn from the exercise by the accused of the right to silence when arrested. We had a lively discussion in the justice directorate-general about the inappropriateness of that directive in its application to the criminal law of England and Wales. That sort of detailed case-by-case, directive-by-directive discussion will be the surest safeguard against the general creep that my hon. Friends and others fear.
Mr Jenkin
I admire my hon. Friend’s intellectual honesty in admitting that in respect of the European arrest warrant the activities of the European Court of Justice may lead to judicial creep, which may lead to a “wheelbarrow situation” and so on. If such were to occur, who would be accountable?
Mr Buckland
My hon. Friend asks the fundamental question we should always ask, about not just European legislation, but domestic legislation and the way in which we in this House have legislated in an unsatisfactory and ambiguous way that has opened the door to more and more judicial review, more and more challenge and more and more interpretation by domestic courts in ways that were perhaps not envisaged by the legislators. So I repeat the point and turn it back to him: I do not think this is a particular problem at a European level.
Mr Jenkin
If a wayward British court makes a judgment that is clearly not intended by Parliament but has arisen because of a perfectly legitimate and understandable interpretation of one of our own statutes, we can hold a Minister accountable, we can ask them to bring forward an amendment to the law and we can change the law. If the same happens in respect of European legislation, how do we hold the law accountable?
Mr Buckland
We have mechanisms within the European structure to do that, via the Council of Ministers, renegotiation, treaty change—
Mr Buckland
I disagree, and I am more than willing to talk briefly about how we renegotiate these things. Talk about repatriation is unhelpful. If we are going to get actual reform in Europe, we have to look at it across the piece. Addressing the issues of judicial activism and the way in which the ECJ interprets the articles of the European treaties is fundamental to any meaningful renegotiation to deal with the democratic deficit argument that my hon. Friend and others posit.
Mr Jenkin
I am very grateful for my hon. Friend’s generosity in giving way. I have served in this House for more than 20 years and I have seen court judgment after court judgment from the ECJ, or indeed from our own courts—in the Factortame case, famously, even a political agreement reached between the member states about our fisheries was overturned by a decision of the court—where the Minister here says that nothing can be done about it. That has been the case time after time. We are moving these decisions, and their consequences, beyond the democratic accountability of the national Parliament.
Mr Buckland
But remembering that the competence of the ECJ deals with the application of EU law in the UK, we have to be very careful about the words we use, because very often people misunderstand the full ambit of that Court. Another example would be the way in which case law in Strasbourg is wrongly assumed to be the law of this land—it is not the law of this land and never has been, not even under the much-reviled Human Rights Act. There are little misunderstandings that germinate into a general feeling among the public that we have lost control.
Mr Buckland
I disagree. It is up to us in this House and elsewhere to show leadership and to explain to people that we have not lost the degree of control that has been suggested. As much as I admire my hon. Friend, I sometimes think that his is a counsel of despair when it comes to the future of Britain in Europe. It is time for us to remind ourselves that we are still a country with huge influence and that we still have a massive part to play in the affairs and future of the European Union. We are one of the biggest economies in Europe, and there are very many strategic interests that make our membership of the EU good not only for us but for other member states.
Before I resume my seat, I will return to the issues at hand. The European arrest warrant is not only in this country’s interest because we can repatriate UK citizens from other member states who are alleged to have committed crimes in this country; it also ensures that EU nationals who are fleeing and evading justice in their own country can be sent back. Those practical realities bring us back from the theoretical debate that we sometimes have here. We are talking about real lives and the tragedies that surround every criminal case about which we have heard this afternoon, which we know is a real issue for those involved. Let us not forget the human element.
I have gone through the list of measures, and it seems that the principle of mutual recognition of criminal offences, for example, will be very important not because of the way in which we operate the courts in England and Wales but because of the way in which other member states recognise UK criminal convictions, which is an important point. If UK citizens go to other member states and commit offences, it is right and in the general interests of combating crime and properly reflecting criminality that their convictions recorded in the UK are properly recognised. Those are practical measures that not only address the need to combat crime but help to increase trade and commerce—all the efficacy arguments that are a natural part of what it is to be a member state of a developing Union that is the biggest market in the world. It is the continent of which we are a part. I think, therefore, that the practical realities reflected in the opt-in measures are a proper reflection of the absolute need for this country to work hand in hand with other member states and to ensure that we can have a criminal justice system that works well for all British citizens, not just here in the UK but in other parts of the EU.
The European arrest warrant has been properly criticised on the grounds of proportionality. My hon. Friend the Member for Esher and Walton (Mr Raab) will shortly wax lyrical on the matter with his customary expertise and I look forward to his contribution with interest, but I would say that the introduction of the amendments on proportionality in recent legislation goes a long way towards addressing the concerns that he and others have repeatedly expressed. I have the same sorts of concerns about the disproportionate use of such a serious measure. The decision to extradite or to remove someone from one jurisdiction to another is a serious step to take.
We have to be practical about this issue, and the Government have done everything they can to ensure that, although we have opted out of the general swath of measures—I think that was the right decision—we are, after looking at the evidence on a case-by-case basis, making the proper decision to opt in to the measures that we are debating today. On that basis, I am happy to support my right hon. Friends on the Front Bench.
Autism (Quality Standards)
Debate between Bernard Jenkin and Robert Buckland
Mr Robert Buckland (South Swindon) (Con)
I beg to move,
That leave be given to bring in a Bill to require the Secretary of State to make a referral to the National Institute for Health and Clinical Excellence (NICE) to develop and publish quality standards for autism spectrum disorders; and for connected purposes.
Autism, autism spectrum disorders and Asperger’s syndrome are terms that are increasingly entering public consciousness. The number of people who are diagnosed with those conditions is rising. That is the result of a growing awareness of the conditions and the greater specialism that is now available. However, far too many people are not having their needs met. Most Members will have had casework relating to children, young people and adults with those conditions. Such cases are usually about the difficulty that they and their families experience in accessing appropriate diagnostic services, education, health care or social care.
I declare an interest as the parent of a child with ASD, but I speak today for all families across the country who experience difficulties in accessing services. The Bill is an attempt to plug a gap that I believe exists in the commissioning and provision of health and social care for people with autism, particularly those whose IQ is above the level of diagnosis for a learning disability. The National Institute for Health and Clinical Excellence has quality standards for conditions such as chronic kidney disease, dementia and stroke, and it is working on more as we speak. However, none of those standards will relate to autism. I am encouraged that NICE is developing three sets of guidelines relating to autism management in children and adults. I argue that the creation of an overarching quality standard would bring together those strands into one coherent approach. What would the standards look like? I am grateful to members of the all-party parliamentary group on autism and to the National Autistic Society for their work on this. I will put forward some suggestions on behalf of everybody who has been involved.
First, people with ASD should receive care and support from appropriately trained staff who are capable of making reasonable adjustments to understand them and meet their needs. Secondly, people with suspected ASD should be referred to a specialist team. A diagnostic assessment should start within three months of the initial referral and there should be support throughout the assessment by the ASD team. Thirdly, people with ASD should be assessed for any co-existing mental health conditions. The severity of their symptoms and the degree of any associated functional impairment should be identified. Those who require additional help should be offered immediate support.
Fourthly, people who are newly diagnosed with ASD and/or their carers should receive appropriate written and verbal information about the condition and the support options that are available locally. Fifthly and importantly, people who are newly diagnosed should be given a profile detailing their strengths, skills, impairments and needs. That should be the basis for a needs-based management plan that covers learning, communication, self-care and other adaptive skills, behaviour and emotional health. The plan should take full account of the family context and the particular needs in each case.
Sixthly, people with ASD should have a community care assessment carried out by a trained assessor. Any care plan should be agreed across health and social care. If required, people with ASD should be given support to use direct payments or personal budgets. Seventhly, carers of people with ASD should be offered an assessment of their emotional, psychological and social needs and, if accepted, should receive tailored interventions identified by a care plan to address those needs. Let us not forget the carers in all this. Eighthly, there should be an ASD strategy group in each local area to help plan services for children and adults. Each group should contain representation from people with autism—the service users—as well as from mental health services, education, social care, parents, carers and the voluntary sector.
The ninth suggestion is that the professionals working with a child with ASD who is approaching the transition to adulthood—a lot of Members will know the difficulty that young people have with that transition—should inform social services and the child about the need for a community care assessment. Adult social services should formally contact the young person and/or their carer before adulthood is reached, so that such young people get the continuity that they deserve.
Finally, people with ASD who use child and adolescent mental health services should have a plan in place for the transition to adult mental health services. Where the referral criteria are not met, it would be good practice to signpost other sources of support.
Why bring this proposal forward now? It is clear that whatever the precise outcome of the important reform that the NHS is undergoing, the process of commissioning health and social care services will change. That will include the process of referring quality standards proposals to NICE. I suggest that the Bill comes at precisely the right moment and that it highlights the vital importance, which is underlined by the Government’s proposals, of bringing together health and social care. That is not before time say all of us with an interest in and a passion for issues to do with autism and related conditions.
Those who commission services for people with autism would be helped by a list of quality standards, because it would help to define best practice. It would inform GPs and other potential commissioners of the gold standard of provision for people with autism. Patients and service users would also be made aware of the standards that they should expect from service providers. NHS trusts and other professionals would also be helped. Maybe, just maybe, the lives of thousands of people with autism can be made better.
Question put and agreed to.
Ordered,
That Mr Robert Buckland, Roger Williams, David Mowat, Annette Brooke, Andrew Griffiths, Dr Julian Huppert, Robert Flello, Jonathan Reynolds, Damian Hinds, Justin Tomlinson, Charlotte Leslie and Nicola Blackwood present the Bill.
Mr Robert Buckland accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 25 November, and to be printed (Bill 194.)
Mr Bernard Jenkin (Harwich and North Essex) (Con)
On a point of order, Mr Deputy Speaker. Could you clarify whether the House has the option to take today’s votes in an order that would facilitate the expression of Back-Bench opinion, as we will be debating Back-Bench business? In the usual course of events, a motion is not voted on until the amendments have been taken. That means that if the Government use their majority to whip through an amendment, the House will never get the opportunity to vote on the motion that the Backbench Business Committee selected for debate. Is it possible for you to ensure that the House has an opportunity to vote on the motion that was selected for debate, or are we in the hands of the Whips and those under their influence?