European Union (Withdrawal) Bill
Dominic Raab ExcerptsTuesday 14th November 2017
(6 years, 7 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 14 November 2017 - (14 Nov 2017)
Paul Blomfield
The right hon. and learned Gentleman is right, and that is what we seek to address with amendment 306.
I will briefly address some of the other amendments in the group. We support new clause 14, in the name of my hon. Friend the Member for Nottingham East (Mr Leslie), as it sensibly calls for a report to be laid before Parliament on the interpretation of EU law during a transitional period.
We also support amendment 137, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, as it seeks to have UK courts pay due regard to any relevant decision of the ECJ when interpreting the new category of retained EU law.
Amendments 202 and 384, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford), would allow matters pending on exit day to be referred to the ECJ, which is clearly common sense, and we are pleased to support the amendments. We also support amendments 203, 353 and 354, in the right hon. Gentleman’s name, on the definitions of EU retained law. Amendment 357, tabled by the hon. Member for Bromley and Chislehurst (Robert Neill), raises important issues, and I look forward to the Minister’s clarification. We support amendment 358, which would help with the interpretation of EU retained law.
I end on the same note on which I began by urging the Government to accept amendment 278 and its consequential amendments and, in doing so, to put aside their obsession with the ECJ so that we can secure the effective transitional deal with the EU that they, we, business and trade unions want to achieve.
The Minister of State, Ministry of Justice (Dominic Raab)
It is a great privilege and pleasure to speak on behalf of the Government on this essential Bill, and particularly on clause 6 and the various amendments proposed to it. The Bill is complex, but at root it boils down to achieving two basic but fundamental objectives, which it is worth bearing in mind as we consider the clause and amendments.
The first is that we are delivering on the referendum by taking back control over our laws, which is a major opportunity; that was the No. 1 reason why people voted to leave the EU in the referendum. The second thing that the Bill does is make sure there is legal certainty, with a smooth transition for citizens and businesses, mitigating one of the key risks of Brexit, which I believe is felt by people whether they voted leave or remain.
Sir Edward Leigh (Gainsborough) (Con)
It is essential that the Supreme Court has certainty. The first part of clause 6(2) is admirably clear:
“A court or tribunal need not have regard to anything done on or after exit day by the European Court”.
Why then have the Government included the following phrase at the end of the provision:
“but may do so if it considers it appropriate to do so”?
I think Lord Neuberger has a point, and I give the Minister an opportunity to make the Government’s position clear.
Dominic Raab
I thank my hon. Friend for that, and I shall come to that point a little later. The basic point that I respectfully make to the House at the outset is that the various clauses and amendments should be judged according to those basic strategic objectives: taking back control over our laws and making sure that there is a smooth legal transition, which I believe is my hon. Friend’s point.
Clause 6 serves both objectives. It sets out how, once we have taken back control over EU law, retained EU law should be interpreted on and after exit day. It makes it clear that once the UK leaves the EU, domestic courts will not be able to refer cases to the European Court—an affirmation of the supremacy of our own courts and our own legal order.
Mrs Maria Miller (Basingstoke) (Con)
My hon. Friend is making a powerful case. The Select Committee that I chair has looked at the implications for equality law. At the moment, individuals can take cases to the Court of Justice of the European Union and gain decisions there that may have a great impact on their lives, but they will not be able to do that in the future. How should the Government look further at how domestic courts might be able to assess the compatibility of UK law with equality law, to make sure that in the future we do not have any problems in the way our law develops in this area?
Dominic Raab
First, let me thank my right hon. Friend, the Chair of the Women and Equalities Committee, for her intervention and for highlighting this important issue constructively. I have looked carefully at the report of her Committee and had discussions with the Equalities Ministers on the points she has made, so today I can give her the reassurance, and tell the House, that we have commissioned work to be done on an amendment that the Government will table before Report. It will require Ministers to make a statement before the House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act 2010. I hope that gives her the reassurance she needs that the Government are serious about addressing the legitimate point she has raised.
The point I was making before my right hon. Friend’s intervention was that once the UK leaves the EU, the domestic courts will not be able to refer cases to the ECJ. Clause 6 also provides that domestic courts and tribunals will not be bound by or required to have regard to ECJ decisions made after Brexit.
Dominic Raab
May I just finish this point, because I am at risk of answering the question before my right hon. and learned Friend puts it? As I say, UK courts will instead be able to take those post-exit judgments into account when making their decisions, if they consider it appropriate to do so, as they can, of course, with judgments of courts from other jurisdictions—common law, around the Commonwealth and elsewhere.
Mr Grieve
A number of different points feature in all this, but there is one point about the legal certainty, which was raised earlier. It is one thing to be able to take a case to the Supreme Court, but under a previously set up regime people could take it as a reference to the ECJ. Have the Government considered the propriety issues on removing that right for a case that is current? There is an issue to address there. The Government may be able to provide precedent and justification for what they are doing, but the issue troubles me. This strikes me as an odd way of going about things simply for the sake of trying to get rid of the ECJ in one fell swoop, which I think will be rather difficult in any case for other reasons.
Dominic Raab
I hope that I can give my right hon. and learned Friend some reassurance as the Committee makes progress. Some of what he says relates to clause 5 as much as to clause 6, but let me have a go at addressing it today. We may well return to it next week.
Hilary Benn
The Prime Minister has accepted that in a transitional period, the European Court of Justice would govern the rules of which we are part. Will the Minister explain to the Committee how that is compatible will clauses 5 and 6, which say that the ECJ will have no further sway after exit day, which the Government propose to set as 29 March 2019? Do the Government intend to amend the Bill as it proceeds through Committee to reconcile those two things, or do they propose to do it in the new Bill that the Secretary of State announced yesterday?
Dominic Raab
I think the Chair of the Select Committee has answered his own question. The point is that we will produce separate primary legislation to deal with the withdrawal agreement and the terms of any transition. We should not be putting the cart before the horse. This Bill is about making sure that we have at our disposal all the means to implement in UK law any deal, and its terms, as and when it is struck.
Dominic Raab
If the hon. Gentleman will allow me, I shall make a little progress, because I suspect that—
Dominic Raab
I am going to make a little progress, because I think that some of these queries will be addressed in the discussions on the amendments that others have tabled.
I return to clause 6. For as long as retained EU law remains in force in the UK, it is essential that there is a common understanding of what that law means. That is critical for legal certainty and, in real terms, for the very predictability of law that businesses and individuals rely on every day as they go about their lives. We want to provide the greatest possible certainty—I suspect that, for all the thunder and lightning in this debate, that is a shared objective underpinning it all—and the question is how we achieve that. Clause 6 will ensure that UK courts must continue to interpret retained EU law using the Court of Justice of the European Union’s pre-exit case law and retained general principles of EU law. Any other starting point would be to change the law. That is certainly recognised by the Government.
Dominic Raab
I am going to make a little more progress, but I will give way to my right hon. Friend in due course.
The crucial point reflected in clause 6 is that the intention is not to fossilise past decisions of the ECJ for ever and a day. The clause provides that our Supreme Court—and, indeed, the High Court of Justiciary in Scotland—will be able to depart from pre-exit case law. In doing so, they will of course apply the same tests as they do when departing from their own case law in the ordinary way.
We have, in my view at least, the finest judiciary in the world. Our courts are fiercely independent of Government, as they have already proved during the Brexit process. The clause will provide them with clarity about how they should interpret retained EU law after exit. As we take back control over our laws, it must be right that the UK Supreme Court, not the European Court of Justice in Luxembourg, has the last word on the laws of the land. It is therefore of paramount importance that the clause stands part of the Bill.
Mr Kenneth Clarke
The Minister is being very helpful on one aspect of the Bill, which is how the Government think European law should be interpreted once we have finally exited, but he is sidestepping the key point put to him by the right hon. Member for Leeds Central (Hilary Benn). As it stands, clause 6 does not reflect current Government policy. It is not putting the cart before the horse to ask whether current Government policy, as represented in the Florence speech, should be reflected in the Bill. The fact is that the Government are seeking, expecting or contemplating the real possibility of a transition period during which we will stay in the single market and customs union and be subject to the jurisdiction of the Court. Why is the Bill being presented and urged by the Government in terms that are totally—
Dominic Raab
I will come to that precise point in the context of new clause 14, which has been tabled by the hon. Member for Nottingham East (Mr Leslie). The proposed change refers to the transitional period after the UK exits the EU. I thought that the hon. Gentleman put his points in a perfectly reasonable way.
Dominic Raab
Let me finish my point.
Therefore there will be full transparency and accountability to this House on the issue that the hon. Gentleman feels so strongly about. I urge him to withdraw his new clause, but I will give him one further crack at it.
Mr Leslie
I am grateful to the Minister for allowing me to probe him on this point. He has suggested that the legal architecture framework for the transitional period will be set out in the Bill that he brings forward for the implementation period. However, it is only possible to agree with that plan if he is guaranteeing that Royal Assent for the implementation Bill will come in ample time before exit day. Clearly, it would be nonsensical to have an implementation piece of legislation that leaves a vacuum between exit day and some later date, when the transition had already started. Can he guarantee that that Bill will be enacted and enshrined in law in good time, well before exit day?
Dominic Raab
I sense that the hon. Gentleman recognises that he is putting the legislative cart before the diplomatic horse. Of course the implementing legislation relates to the agreement, and we need to have one in place to comply with the terms of any obligations, whether they are under the withdrawal arrangement, the implementation period or the future partnership deal.
I now turn to amendment 357, tabled by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), Chair of the Justice Committee.
Sir Oliver Letwin
I agree with what my hon. Friend is saying about new clause 14. May I take him back to clause 6(4)(a)? It says that the Supreme Court “is not bound”. Will that enable it to look at the plain words of the treaties, and not at the previous expansive teleological jurisprudence of the ECJ?
Dominic Raab
I am not quite sure that I understand my right hon. Friend’s forensic point. It is a feature of the common law that UK courts already take into account and consider principles and precedents from other jurisdictions, but they do so with full autonomy as to how they might apply it, where they have discretion under the normal canons of interpretation. We are effectively seeking to apply the same basic principles, through this Bill, to retained EU law and the interpretation of it.
Dominic Raab
I am going to make some progress, as I have given way once. I want to turn to some other amendments; otherwise, I will not give them the attention that they rightly deserve. I turn to amendment 357 in the name of the Chair of the Select Committee on Justice.
Dominic Raab
My right hon. and learned Friend is very tempting, but not at this moment.
I understand the point of amendment 357, which is to provide a default mechanism for transposing EU law where regulations have not been made under clause 7. I can equally see that my hon. Friend the Member for Bromley and Chislehurst is seeking to make default provision for any gaps that may exist in the law to avoid creating not just legal uncertainty, but any legal potholes that may strew the road that lies ahead. I hope that he does not mind me saying that he is, perhaps inadvertently, reinforcing the case for clause 7 because his concern appears to be with the risk that it might not being used comprehensively enough. I certainly share his concern to avoid legal cliff edges and legal potholes, for which I think he is trying to cater.
Sir William Cash
I mentioned to the Prime Minister during her statement a few days ago the bear trap that I can see coming up during the transitional period if we are not careful because of the manner in which the European Court operates by the purposive rule; I know my hon. Friend will understand. During the transitional period, when we are faced with a court operating under that rule and not by precedent, we could end up with the European Court dictating to us the basis upon which we would be operating during that period. Does my hon. Friend agree?
Dominic Raab
The Chair of the European Scrutiny Committee eloquently makes his powerful point. We need to avoid bear traps, cliff edges and potholes, and that is what this Bill does. That is a common goal that we all ought to be trying to pursue, on both sides of the House—whether we voted to leave or remain. I am not convinced that the amendment of the Chair of the Justice Committee would achieve that aim. Despite his best intentions and his rather ingenious drafting, I fear that the amendment would, in practice, create considerably more legal uncertainty, not less.
Robert Neill
I will not claim credit for all the ingenuity of the drafting, as I hope I shall make apparent in due course, but what if I told my hon. Friend that it is based on the work of the International Regulatory Strategy Group—one of the most distinguished groups of practitioners in this field? Would he think again about totally dismissing the thing, recognise it as a serious point that needs to be addressed here and engage with it?
Dominic Raab
I absolutely will not dismiss it. I am happy to think twice, thrice and as many times as my hon. Friend wants to talk to me about it. But let me make a couple of points to illustrate the risk of uncertainty that his amendment would cause. Subsection (A3) of amendment 357 begs the question of whether retained EU law restrains acts or omissions that start within the UK but that may have effects outside of it. Equally, subsection (A5) conflates functions conferred on public bodies with those of the Secretary of State. They are not the same thing. I sense that, underpinning this, he is trying to legislate in advance for unknown unknowns. I understand that temptation but if we go down that path, there is a countervailing but very real risk of increasing, rather than mitigating, the legal uncertainty. With respect, I hope that he can be persuaded to withdraw his amendment.
Robert Neill
In order that I might reflect on that as the debate goes forward, perhaps my hon. Friend would like to give me an example of the circumstances in which he thinks my amendment might increase the legal uncertainty, rather than assist it. I will obviously listen to that.
Dominic Raab
Well, I have just given two examples regarding subsections (A3) and (A5) of my hon. Friend’s amendment, but I would be happy to sit down with him and give some illustrative examples of how, in practical terms, I think that this is not actually the avenue or legal cul-de-sac that he wants to go down.
If my hon. Friend will forgive me, I will now turn to some of the other amendments in order that I give them due consideration in this important debate. In particular, I want to turn to amendment 278 and linked amendments 279 to 284 concerning exit day, which are from the Leader of the Opposition and other hon. Members.
The Prime Minister made it clear in her Florence speech that
“The United Kingdom will cease to be a member of the European Union on 29 March 2019.”
It is clear that the UK will leave the EU at the end of the article 50 process—some of the suggestions around the caveat are wildly unrealistic. The Government have tabled an amendment to make sure the drafting of the Bill is crystal clear on this point and to give the country—businesses and citizens alike—additional certainty and a measure of finality on it.
These amendments would replace that clarity and finality with uncertainty and confusion. They would alter the meaning of the term “exit day” in the Bill, but only for the purposes of the provisions of clause 6. For those purposes, but for those purposes alone, the UK would not leave the EU until the end of the transitional period. I am afraid that that would create damaging legal uncertainty, and the amendments are flawed. They would have the effect that, for the duration of any implementation period that might be agreed—and we hope one will be, sooner rather than later—all the important provisions on the interpretation of retained EU law set out in this clause could not apply; they could take effect, if I have understood correctly, only from the end of that period. Since we have not yet agreed an implementation period with our EU partners, the effect of the amendments would be to create an indefinite and indeterminate transitional period, which rather raises the question of whether the Labour party is really serious about facilitating the process of a smooth Brexit at all.
Paul Blomfield
Rather than seek to confuse the issue, it would be helpful if the Minister clarified whether it is the intention of the Government to accept the jurisdiction of the Court of Justice of the European Union during the transitional period. Yes or no?
Dominic Raab
The hon. Gentleman is very kind. He had the chance in his speech to make his rapier-like points. I am dealing with his amendment and the very real risk that, with the greatest will in the world, what her Majesty’s Opposition are proposing will add to, rather than mitigate, the uncertainty. When we go away from the fireworks of this debate, it ought to be our common endeavour to minimise that uncertainty.
My right hon. Friend the Secretary of State for Exiting the European Union made it clear yesterday that there will be separate primary legislation for the withdrawal agreement and any implementation phase, so these amendments are entirely unnecessary in any event. We have also been clear—I think this addresses the hon. Gentleman’s point—that, in leaving the EU, we will bring an end to the direct jurisdiction of the European Court in the UK.
Our priority must be getting the right arrangements for Britain’s relationship with the EU for the long term.
Dominic Raab
I have given way to hon. Gentleman before. I am going to make some progress.
That priority means getting a close economic partnership, but out of the single market, out of the customs union and without the direct jurisdiction of the European Court. We want to get to that endgame in a smooth and orderly way, with the minimum of disruption.
That is why we want early agreement on the implementation period—on that much, we are agreed. That may mean we start off with the European Court still governing some of the rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we shall do so. These amendments do not allow for that. They prejudge and pre-empt the outcome of negotiations, and they introduce legislative inflexibility by saying that we must keep rules in domestic law that would bind us to the jurisdiction of the European Court after we leave, for the full duration of any implementation period, without our knowing for a second how long that might be. The Government are making the case for legal certainty. The Labour party is proposing legal limbo. We cannot accept that.
Mr Grieve
I actually agree—I should make this clear to my hon. Friend—about the issue of transition. I find it difficult to see how we can approach transition in the course of this Bill. However, there is an important underlying issue here, because, ultimately, our future relations with the EU will have a very powerful bearing, whether it is in transition or even after transition, on what we want EU law to do and how we want it to be interpreted, depending on transition, or indeed when we have completely gone, and on the extent to which we wish to be in comity with EU law. This is the elephant in the room, and it will have to be debated at some point as the Bill goes through, because some of it does not have to do with transition but has really to do with an entire future relationship, and it marries with great difficulty with the constant reiteration that the ECJ is somehow going to disappear out of the window.
Dominic Raab
I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do.
I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point.
That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end.
Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.
Joanna Cherry
I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.
Dominic Raab
I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.
Antoinette Sandbach
I seek clarification on this point. Is the Minister saying that if a right of action has arisen before Brexit day that would have attracted, at the time that it arose, the full protections and a right to referral to the ECJ, that right will not be taken forward and those rights will, in effect, have been retrospectively changed?
Dominic Raab
I understand the point that my hon. Friend is making, although I do not accept that characterisation. It is absolutely right that cases that are procedurally before the dock of the court, if I may put it like that—that have been lodged before exit day—will continue to conclusion. However, in relation to facts that may or may not give rise to a cause of action at an indeterminate point in the future, we would end up with a long tail of uncertainty if we went down the path that she suggests. I gently say to her that it will be possible to continue those cases before the UK courts because of the way in which we will retain EU law. There would be more, not less, uncertainty for citizens and businesses alike if we allowed the kind of indeterminate access to the court that she suggests.
Mrs Gillan
Surely, the Minister is ignoring the legitimate expectation that I have talked about. Frankly, if the Government do not look again at the matter, it will constitute an abuse of power, because it will remove from individuals rights that they legitimately expected to carry through to the end of a case.
Dominic Raab
My right hon. Friend makes an interesting point about legitimate expectations. I think there is an equally legitimate expectation, demand and need to have some finality to the legal and institutional arrangements that give rise to cases before the European Court.
Dominic Raab
Perhaps I can give way to my right hon. Friend when I come on to her amendments.
I turn to amendment 203, tabled by the right hon. Member for Ross, Skye and Lochaber, and to the related amendments 353 and 354. They would remove clause 6(7) and partially reinsert it into clause 14. Clause 6(7) provides key definitions of terms in the Bill that are crucial for the proper interpretation and full understanding of its content. Subsection (7) aims to alleviate any potential confusion and ensure that there is no vagueness or ambiguity about the different types of retained law mentioned in the Bill. That is vital for those who read, implement and interpret the Bill, because of the different effects of each type of retained law. The placement of the definitions in clause 6 is specifically designed to make the Bill easier to navigate and more user-friendly, by placing the definitions close to where they are used and deployed in the text.
Dominic Raab
I am going to make a bit of progress. Wider general definitions are set out in clause 14, and clause 15 provides an index of all the defined terms to make the Bill easier to use as a reference tool. To remove those definitions from clause 6 and only partially to reinsert them into clause 14, as the amendment would do, would undermine the certainty and clarity that we aim to provide.
Without statutory definitions of the different types of retained law, we would undermine the stability of our domestic legal regime after exit and exacerbate the burdens on the court system. Reinserting the definition of “retained domestic case law” into clause 14 would not alleviate that, because it would give rise to the question why that definition had been included, while others had not. Its placement in the body of clause 14, away from its original use in clause 4, would make the text far less easy to navigate—something that we are keen to avoid.
I turn to amendment 137, which is a joint SNP and Liberal Democrat amendment, in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry). Clause 6(2) will allow our domestic courts and tribunals to take into account any decisions made by the European Court, an EU entity or the EU itself on or after exit day, if they consider it appropriate to do so. That will ensure that our courts are not bound by the decisions of the European Court, while enabling them to consider its subsequent case law if they believe it is appropriate to do so. It is widespread practice in our domestic courts to carry out a similar exercise with the judgments of courts in other jurisdictions—I am thinking particularly of Commonwealth and common law jurisdictions—so, in principle, there is nothing new or particularly different here.
The UK has always been an open and outward-looking country, and our legal traditions reflect that. We pay attention to developments in other jurisdictions, including common law jurisdictions, and we embrace the best that the world has to offer, but we do so on our terms and under our control. That is decided by our courts and, ultimately, it is subject to the legislative will and sovereignty of this House. Amendment 137 is therefore unnecessary, as the Bill already provides that post-exit decisions of the European Court can be considered by the domestic courts.
Amendment 137 would go further, however, in that it would require our courts and tribunals to pay due regard to any relevant decision of the European Court. What does “due regard” mean? It is not defined and, indeed, it is far from clear. It is evidently intended to go further than clause 6, and tacitly urges our courts to heed, follow or shadow the Luxembourg Court, but there is no clarity about what would count as due consideration. The amendment would alter the inherent discretion the UK courts already have to consider, without fetters, the case law in other jurisdictions, and it seeks to apply to the European Court a procedural requirement that is stronger but so vague that it is liable to create more, not less, confusion. I hope that I have tackled, or at least addressed the concerns that the hon. and learned Lady has expressed in her amendment, and I urge her not to press it.
I will now turn to amendment 303 in the name of my right hon. Friend the Member for Chesham and Amersham. I thank her for tabling this amendment and for explaining it, as she did, in a very constructive spirit. I recognise that she is representing the interests of her constituents with her customary tenacity, but I will take a few moments to set out why we have taken our approach to the issues and my difficulties with her amendment.
Clause 6 supports the Bill’s core aim of maximising certainty. It is in no one’s interests for there to be a legal cliff edge. The Bill means that the laws and rules we have now will, as far as possible, continue to apply. It seeks to take a snapshot of EU law immediately before exit day. The Government have been clear that in leaving the EU, we will be bringing to an end the direct jurisdiction of the European Court of Justice in the UK. To maximise certainty, any question about the meaning of retained EU law will be determined in UK courts by reference to ECJ case law as it existed before our exit. Using any other starting point would be to change the law, which is not our objective. Our domestic courts and tribunals will no longer be bound by or required to have regard to any decisions of the European Court after that point, but they can do so if they consider it appropriate. These clear rules of interpretation are set out in clause 6.
Sir Oliver Letwin
May I try again to ask my hon. Friend the question on which both my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, and I have been pressing him? My hon. Friend has just said that courts would be bound by judgments of the European Court about retained EU law. I asked him about clause 6(4)(a), which specifically says that
“the Supreme Court is not bound by any retained EU case law”.
It seems to us that he can have it one way or the other, so which is the governing clause—the one saying that the courts are bound to judge in accordance with the previous judgments of the ECJ, or the one saying that the Supreme Court is not bound by such a rule?
Dominic Raab
The point is that we take a snapshot of EU law, including case law, at the point of exit, but after that the normal rules of precedent will apply both to the Supreme Court and in Scotland. That will allow a departure from any precedents that apply, which again comes back to the question of how we achieve a smooth and orderly transition from retained EU law while making sure that, when push comes to shove as such case law evolves, the UK Supreme Court will have the last word. That is balance struck in the Bill.
Mr Grieve
I understand that issue, but there is another one. Let us assume for the moment that there is no transition or relationship with the EU at all. Is the Court supposed to apply EU law as currently applied—purposively—or is it supposed to ignore the underlying purpose by which it has constantly been applied heretofore, and in that case, which rules is it supposed to apply? The judiciary have expressed a real concern about what they are supposed to do, because it is quite unclear what Parliament intends. If we forget about a transition or a future relationship, what are they supposed to do? They have rules for interpreting this law at the moment. Are they supposed to stick to those rules when they no longer have an underlying purpose?
Dominic Raab
I have to be careful about not pre-judging or prejudicing what the courts decide to do, particularly given that the thrust of the Bill is to make sure that judges have autonomy and discretion. The reality is that the issue is dealt with in the Bill. It is possible for the UK courts, in relation to retained case law, to look at the underlying purpose or intention of any piece of legislation or any principles that have been articulated. Moving forward, they are free, of their own volition, to depart from any precedence in the usual way. That already applies in relation to wider common law jurisdictions. The question I would put back to my right hon. and learned Friend is: why on earth, when we are leaving the EU and given that we are an open and outward-looking country that does filter, take interest in and take account of different principles from different jurisdictions, would we put on an further elevated status the case law of the ECJ?
Antoinette Sandbach
I may be able to assist the Minister with the explanatory notes.
Dominic Raab
That is kind, but I will make some progress; otherwise I will lose the thread in relation to amendment 303.
The amendment is at odds with the clear and certain position set out in the Bill, because it would continue to bind UK courts to some post-exit ECJ decisions and case law where the matters giving rise to the case have occurred before our exit. Those judgments would continue to be binding even after an implementation period. Strictly interpreted, the amendment would go further still. It would apply to anything happening before exit day and so would also include ECJ judgments on cases referred from outside the UK. For example, a preliminary reference made by another EU member state in relation to the interpretation of EU law might also fall within the scope of the amendment, if the facts of the case arose before exit day. The consequences would be far-reaching and risk creating considerable uncertainty and practical difficulties for the administration of justice.
UK courts and tribunals would continue to be bound by some new ECJ judgments for an indeterminate period. Those binding judgments could continue to be issued long after we have left the EU as cases continue to progress to the European Court from across the EU. Yet those judgments would not have formed part of the snapshot of retained EU case law that, under clause 6(3), will be binding on our courts, so far as is relevant, and subject to the rule in clause 6(4). By contrast, such post-exit judgments would bind our courts in all circumstances, including where the retained version of an EU regulation had since been modified by this Parliament or a devolved Administration. That would create foreseeable and entirely avoidable uncertainty, and it would not be necessary, because individuals whose cause of action predates our exit would, of course, continue to be able to take their case to the domestic courts, even if after exit they cannot reach the European Court. That is the fundamental point in relation to the procedural framework.
I now turn to amendment 304, tabled by my right hon. Friend the Member for Chesham and Amersham, in relation to retaining ECJ referrals and jurisdiction for anything that happened before exit day. In leaving the EU, we will bring an end to the jurisdiction of the ECJ—we have made that clear. The proposed amendment would frustrate that objective, because our courts could continue to make references to the ECJ in relation to cases where relevant matters have occurred before our withdrawal from the EU. As a result, different rules and processes would apply for those cases, compared with those where the relevant circumstances arose after exit day. That would, I fear, give rise to more not less uncertainty, because it would be impossible to predict for how long UK courts would continue to be subject to binding judgments from Luxembourg.
When we exit the EU, we will know exactly how many pending UK cases are registered with the European Court, awaiting a preliminary reference and thus covered by any proposed agreement we have with the EU on the treatment of pending cases. That is important to deliver certainty about how and when the Court’s jurisdiction in the UK will be brought to an end. The amendment would remove that certainty. Like amendment 303, it is not necessary. Individuals will not lose their ability to vindicate their rights in court after exit. They will be able to take such cases to our domestic courts.
Forgive me, Sir David, but I thought it necessary to address my right hon. Friend’s amendments in detail. Equally, I want to say that I recognise the eloquence and the force with which she champions her constituents. Ministers will take away the underlying issue that she has brought and powerfully moved for consideration. I hope that on that basis she will not feel she needs to press the amendment.
Mrs Gillan
I am following the Minister’s arguments very carefully, with helpful interventions from some of my colleagues. I appreciate that this is a very tricky matter, but it does relate to my constituent. I am therefore grateful that the Minister has undertaken to take the proposal away and look at the principle in relation to this case, because I feel that it would be most unjust not to do so. I have no love for the European Court of Justice and I want the Bill to go through, but not at the cost of justice for my constituent. This case has thrown the matter into stark relief. I am grateful to the Minister for that undertaking and I look forward to talking to him further on the matter.
Dominic Raab
I thank my right hon. Friend for her constructive approach. We will take that consideration forward after these proceedings.
I will now rattle through the final amendments, so I have done them all justice and given them due consideration. I will turn next to amendment 306, tabled by the Opposition. Clause 6(2) states that our courts are no longer bound by decisions of the European Court after our departure or required to consider in future cases, although they may do so if they believe it to be appropriate. Clause 6 is a vote of confidence in our judiciary: its independence and its expertise. Using similar exercises currently undertaken with court judgments in other jurisdictions, our courts are best placed to decide to what extent, if any, they pay regard to EU law in any case before them.
The intention of amendment 306 is to remove that discretion from clause 6 and replace it with a duty that sets fetters on which aspects of EU case law our judges must consider, although only in certain areas. In practice, that would create a presumption that EU decisions should be followed in those areas. That is the clear intention, but it is inappropriate. It would undermine the purpose of clause 6 in both its fundamental objectives. It would frustrate the return of control to this House and the UK Supreme Court and expose the UK to substantial additional and unnecessary legal uncertainty.
Dominic Raab
I am going to make a little bit more progress. I have given way to my hon. Friend.
The singling out of these areas of law appears somewhat arbitrary, given other fields the amendment might equally apply to. It would lead to a splintered approach to interpretation of the law and a fragmented UK jurisprudence—more uncertainty, not less. In any case, it is totally unnecessary. The UK has a proud history of ensuring the rights and protections of individuals in this country. The UK has high standards of protection domestically in relation to workers’ rights and human rights. We are recognised as a world leader in delivering robust, rigorous health and safety protections. That record and that commitment is not dependent on our membership of the EU; it is dependent on hon. Members in this House and their eternal vigilance. It will continue to be dependent on that after we leave. I hope that the right hon. Member for Islington North (Jeremy Corbyn) and his colleagues in the Labour party will not press amendment 306.
Finally, I turn to amendment 358 tabled by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), which sets out the ability of UK courts to have regard to material used in the preparation of retained EU law. I hope that this is the point at which I give some reassurance to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). Currently, when interpreting EU law domestically, our courts will look at the language used, as well as considering the legislation’s recitals, legal basis and other language versions to inform their interpretation. We do not want to change how this law is interpreted or to create any fresh uncertainty about its meaning, so the Bill provides for the courts to continue that approach. Clause 6 provides that questions on the validity, meaning or effect of retained EU law will be decided in accordance with retained case law and general principles of EU law. This requires taking a purposive approach to interpretation where the meaning of the provision is unclear, considering relevant documents such as the legislation’s treaty legal base, working papers that may have led to the adoption of the measure and the general principles of EU law. I hope that reassures my hon. Friend the Chair of the Select Committee and that he will not press his amendment.
Mr Duncan Smith
My hon. Friend is making a powerful case on each of the amendments, but I am among those concerned about the confusion around the cut-off line. The general principles he just talked about will shift and change. Is there a point by which, when we reference the principles and those principles have changed post-exit, we do not consider them to be the principles we referenced rather than the principles that existed before and are now not modified? At what point do we have the cut-off point?
Dominic Raab
My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns.
To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.
Joanna Cherry
I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.
I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.
Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as
“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.
We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.
The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.
Dominic Raab
The hon. Gentleman was not here for large parts of the debate; if he reads Hansard, he will see that that was addressed very squarely.
Wes Streeting
For the benefit of viewers who have just tuned in on BBC Parliament, I am happy to give way to the Minister a second time if he would like to state very clearly for the record whether, in his view, on that fundamental point, the jurisdiction of the ECJ will apply during the transition period. It is a very simple question and it only requires a yes or no answer, but he will not respond.
Wes Streeting
I have to agree with my hon. Friend, but I am happy to be generous and give way to the Minister again. This is a very simple yes or no question.
Dominic Raab
The hon. Gentleman is very kind, but neither he nor the hon. Member for Ilford South (Mike Gapes) has been in here for the entirety of the debate. This issue has been addressed squarely. We are not going to pre-empt or prejudice—[Interruption.]
Mr Grieve
I will pick up two or three points that have been made in this important debate. There have some magnificent contributions, particularly from my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I will start with what he had to say because it is central to the debate.
I appreciate what the Government have been trying to do with clauses 5 and 6 on the way in which retained EU law should be interpreted. I agree with my right hon. Friend that the wording is opaque, although I think that I understand the Government’s intention on the role and supremacy of the Supreme Court in developing law, but that still does not get us away from the fundamental problem that EU law is different from our law. Its rules of interpretation are different and its purpose is different.
We will come back to that problem right through this Bill, whether on the charter of fundamental rights or the general principles of EU law. We cannot just take EU law and drop it into our law without leaving guidance on what the Government expect that law to be used for. I worry that the lack of explanation is most peculiar. It is not a question of wanting to keep EU law—I assume that it will all ultimately go away, anyway—but in the meantime there is a lack of clarity, and I can well understand why the judiciary, particularly the senior judiciary, are troubled by the lack of guidance. It is almost as though the Government have found it too embarrassing to want to grapple with it. They want to maintain continuity, but they do not want to maintain the implication of continuity because that is a difficult message to sell to some Conservative Members.
We will really have to look at this as we go through the Bill, and I am quite prepared to try to help the Government to find a way through. It is not that I want to keep its aura, and there are many Conservative Members who do not like it at all, but the simple fact is that we need to look at it.
The other issues that have been raised are absolutely right, but they are not relevant to this debate. We do not have the slightest clue what the transitional arrangements will be. We will have to have a completely separate piece of legislation to sort that out, and I suspect it will take a long time to go through this House. Ultimately, if we have a long-term agreement, there will be an interesting issue about whether we will be instructing our courts to mirror EU law so as to maintain comity with the Court of Justice of the European Union or risk constantly having to readjust our legal frameworks for the sake of that deep and special relationship.
I do not want to disappoint some of my right hon. and hon. Friends too much, but the harsh reality is that our geographical location and our desire to have a close trading relationship with the European Union will inevitably mean that decisions of the Court of Justice of the European Union continue to have a major influence on our law here—I am afraid that was rather disregarded in last year’s referendum. I think that it is called globalisation, and we will have to return to that as we go along.
Dominic Raab
We have listened carefully to all hon. Members in the various contributions and concerns that have been raised, and taken account of the amendments in this group. There are issues we will take away for further consideration. I refer in particular to what my right hon. Friend the Member for Basingstoke (Mrs Miller) said about the Equality Act 2010, and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) raised her issue powerfully and constructively. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin) also raised a number of points, and I think that we can address those. I think that they are covered by clause 6, but I will take them away and we will work further to make sure we provide the clarity that is required.
Dominic Raab
I am not going to give way; the hon. Gentleman has had his opportunity. Time is running out and I want to give the hon. Member for Nottingham East (Mr Leslie) the chance to wind up. We cannot accept amendments that create more rather than less legal certainty, so I urge all hon. Members to pass clause 6 unamended this evening.
Mr Leslie
I thank Members for a debate that has covered a wide range of issues relating to transition and the application of EU law, but that has also revealed a number of interesting facets of Government policy. It was particularly stark that the Minister, who would not give way just now to my hon. Friend the Member for Ilford North (Wes Streeting), could not let the words, “The ECJ would apply during a transition” pass his lips. That was the very phrase the Prime Minister, for it was she, put into the Florence speech. I thought that speech was Government policy, but it turns out apparently not to be—not today.
Dominic Raab
I will repeat, in terms, exactly what I said earlier. We want an early agreement on an implementation period. As the Prime Minister said in the Florence speech, that may mean we start off with the European Court still governing some rules we are part of for that period, but the Government are also clear that if we can bring forward a new dispute resolution mechanism at an earlier stage, we will do so. The hon. Gentleman should have listened to what I said earlier.
Mr Leslie
Well, well, well. The number of caveats, little changes and weasel words within that particular obfuscatory explanation were not as clear as what the Prime Minister said at that time. That was fascinating and I suspect the Minister will get a phone call from No. 10 in the morning. New clause 14, which I would like to test the will of the House on, is still very relevant; we need to get clarity from the Government a month after Royal Assent on how exactly transition would apply. It is clear that although they say there will be an Act of Parliament, we do not know that that can be completed and enacted before exit day. We may find ourselves with a vacuum. We need much more clarity from Ministers. The Minister has proven the point and made the case amply, which is why I wish to press new clause 14 to a vote.
Question put, That the clause be read a Second time.
Oral Answers to Questions
Dominic Raab Excerpts(6 years, 7 months ago)
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Tom Brake (Carshalton and Wallington) (LD)
The Minister of State, Ministry of Justice (Dominic Raab)
Ministers in the MOJ and the Home Office have regular discussions on key aspects of criminal justice co-operation in relation to our EU partners, including on the European arrest warrant.
Tom Brake
I thank the Minister for that reply. The police have repeatedly underlined the importance of the European arrest warrant in fighting crime. If the price of maintaining our citizens’ security and the effective operation of other European crime-fighting mechanisms is the jurisdiction of the European Court of Justice, will the Minister put crime fighting first or let his arbitrary red line jeopardise our citizens’ security?
Dominic Raab
I am not sure that making sure the UK Supreme Court has the last word on the law of the land is some arbitrary red line. However, the Government’s position in relation to our future partnership with the EU was set out in the position paper that was published in September. It was very clear that we have an ambitious plan for co-operation on security, law enforcement and criminal justice. The right hon. Gentleman will see if he looks at it carefully—I am sure he has—that maintaining strong extradition relations will be an important part of that agenda.
Robert Neill (Bromley and Chislehurst) (Con)
Will the Minister take on board the clear recommendation from the Justice Committee’s report in the last Parliament that underpinning any practical means of criminal justice co-operation, including the European arrest warrant, should be a continuing relationship on maintaining data equivalency? Unless the data regulations are equivalent, it will not be possible for European agencies to share with us or vice versa.
Dominic Raab
I thank the Chair of the Select Committee. That is, of course, why we have taken through the Data Protection Bill. We have extradition relations—very vigorous ones—with countries all around the world, and we see no reason why we would not continue to do so with our EU friends and allies.
Helen Jones (Warrington North) (Lab)
Given that it took countries such as Iceland and Norway 13 years to negotiate extradition arrangements with the EU, does the Minister accept that not maintaining the European arrest warrant puts people in this country at risk of seeing criminals go free and that those criminals may well include terrorist suspects?
Dominic Raab
No, because we are not in the position of Iceland. We start from the position of the European arrest warrant, with strong, intensive co-operation on extradition, and we will make sure we continue that operationally for many years to come.
Mr Peter Bone (Wellingborough) (Con)
Does the Minister agree that one reason people voted to leave the European Union was to make the Supreme Court the supreme court?
Dominic Raab
My hon. Friend is absolutely right. Let us also not forget the advice of the former Lord Chief Justice, Lord Thomas, who made it clear in his evidence to the independent review of extradition that there were problems with the European arrest warrant. We have legislated for extra safeguards. We are ending the jurisdiction of the European Court, but there has been no suggestion that we are dispensing altogether with vital EU extradition—except, perhaps, as a figment of some of the furtive Liberal Democrats’ imaginations.
Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)
Surely the Minister can make it clear that the Government’s priority must be continued participation in the European arrest warrant and that that must come ahead of his obsession with ending the jurisdiction of the European Court of Justice.
Dominic Raab
I welcome the hon. Gentleman’s intervention, but I gently suggest that he read the position paper on the future partnership, which was published in September, because it deals directly with the question he has just asked and makes it clear that we do want to continue vital extradition relations with our EU partners.
David Linden (Glasgow East) (SNP)
Alan Brown (Kilmarnock and Loudoun) (SNP)
The Minister of State, Ministry of Justice (Dominic Raab)
We recognise the distinct legal systems across the UK. We engage with our counterparts in the devolved Administrations to prepare the ground for Brexit, in terms both of achieving a smooth transition on things such as civil and judicial co-operation and of seizing the global opportunities for the UK legal sector, which contributed around £25 billion to the UK economy last year.
Alan Brown
That being the case, what actual steps has the Department taken to ensure that Scottish legal services and the Scottish legal system are protected when the UK leaves the EU?
Dominic Raab
There is a two-part answer to that. First, in relation to the negotiations with our EU partners, we are very focused on making sure that the current co-operation continues as well and as optimally as possible. Secondly, in relation to the legal position, the EU withdrawal position will make sure that there is legal certainty for citizens across the UK.
Brendan O'Hara (Argyll and Bute) (SNP)
Dominic Raab
I can tell the hon. Gentleman that we are absolutely committed to promoting every one of Scotland’s finest exports, from whisky through to its brilliant lawyers.
Joanna Cherry (Edinburgh South West) (SNP)
The Government’s EU position papers on enforcement and dispute resolution and on security, law enforcement and justice have significant implications for the Scottish legal system and for areas of law devolved to the Scottish Parliament. Yet, in advance of the publication of those papers, there was absolutely no consultation with the Scottish Government or the Scottish Law Officers. What assurance can the Minister give me that such oversight will not happen again?
Dominic Raab
I do not know about the specific drafting in the papers, but there was considerable dialogue with all the devolved Administrations on the substance underpinning the position papers and the negotiating position that the UK has taken.
Joanna Cherry
Sir David Edward, a distinguished jurist and a former judge at the Court of Justice, recently gave evidence to the Scottish Parliament about these papers. He said, and I quote, that “the UK Government has overlooked the significance of the separate Scottish legal system, the Scottish judicial system and the Scottish prosecution system in relation to justice and home affairs issues such as Europol, the European Arrest Warrant, cross-border information systems and the conventions and regulations about recognition and enforcement of judgments.” Will the Minister undertake to meet me so that these oversights might be rectified?
Dominic Raab
I thank the hon. and learned Lady, but she has not actually pointed to one aspect, one paragraph or one point in the position paper that she thinks we have got wrong. We certainly accept, recognise and, indeed, embrace the huge contribution that the Scottish justice and legal systems make. In relation to the justice and home affairs strand of the negotiations, we will of course bear in mind very closely the different contours across the whole UK.
Maria Caulfield (Lewes) (Con)
Mr Tanmanjeet Singh Dhesi (Slough) (Lab)
The Minister of State, Ministry of Justice (Dominic Raab)
Yesterday, we laid a written ministerial statement before the House setting out the details of the review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and publishing the post-legislative memorandum, which discharges the promise made by previous Ministers to this House. I expect the review to be completed by the summer of 2018.
Mr Dhesi
I thank the Minister for his response about progress on the review of legal aid reforms, but it is disappointing that, even though the Government first announced this review nine months ago, it still will not conclude for another nine months, which is nine more months of many thousands of people not being able to afford to access our justice system. His Government’s reforms of legal aid were intended to save £350 million. In fact, legal aid has fallen by double that. Will the Minister lobby his colleague the Chancellor, so that some of those additional savings go immediately to help those who have been priced out of access to our justice system?
Dominic Raab
I thought the hon. Gentleman might at least welcome the fact that we laid out the terms of the review yesterday. I am not sure whether he has had a chance to study the post-legislative memorandum. Let us be clear about one thing: last year, we spent £1.6 billion on legal aid in England and Wales, which is a quarter of the Ministry of Justice’s budget. International comparisons are not exact, but according to the Council of Europe’s review last year, the UK spent more per capita than any other Council of Europe member.
Tim Farron (Westmorland and Lonsdale) (LD)
In looking at the effect of the reduction in legal aid on access to justice, will the Minister also comment on the impact on access to justice of the closure of magistrates courts. The closure of Kendal court this summer has removed easy access to justice for hundreds of people, increasing pressure on the police, legal professionals and local families. What will he do to restore such physical access to justice?
Dominic Raab
I understand the hon. Gentleman’s concern if the court estate is situated in his constituency, but we have a £1 billion court reform programme, which is investing in updating, modernising and introducing technology. As a result, we will actually deliver more sensitive justice for victims and witnesses, but also a better bang for the taxpayer’s buck.
Jessica Morden (Newport East) (Lab)
Dominic Raab
The terms of reference have been set out very clearly. The post-legislative memorandum is wide in scope, and the hon. Lady should feel free to submit any particular points that she wants us to consider. I am obviously not going to pre-empt or prejudice the scope of the review that we have just undertaken.
Andrew Bridgen (North West Leicestershire) (Con)
Has my hon. Friend seen any evidence that reductions in legal aid have reduced the cost of litigation in this country? If not, will he look into why the market is not working properly?
Dominic Raab
A good many of those issues will be examined by the review. If my hon. Friend would like to write to me with any concerns he has, I would be very happy to look at them.
Gloria De Piero (Ashfield) (Lab)
Twenty months ago, the Court of Appeal ruled that the Government’s restrictions on legal aid for victims of domestic violence were unlawful. Nine months ago, Ministers told the House that they would make changes by secondary legislation that would
“make it easier for victims of domestic violence to access legal aid.”—[Official Report, 25 April 2017; Vol. 624, c. 983.]
Nothing has happened. Victims cannot wait another nine months, so when will the secondary legislation be brought forward?
Dominic Raab
The hon. Lady is right that it is vital to ensure that legal aid is available to victims in circumstances of domestic violence. Of course, it was granted in more than 12,000 cases last year. We have reviewed the evidence requirements again and are committed to making it easier for victims to access legal aid. I will announce the details shortly.
Wendy Morton (Aldridge-Brownhills) (Con)
The Minister of State, Ministry of Justice (Dominic Raab)
We are investing over £1 billion to bring our courts into the 21st century, to make them more sensitive to victims and witnesses and to deliver swifter and more effective justice.
Wendy Morton
I am grateful to the Minister for that response. What can be done to ensure that the courtroom environment and the wider environment of the court building itself help to put victims and witnesses at ease, and support them through the process of giving evidence?
Dominic Raab
My hon. Friend is absolutely right that we need to reduce the stress and trauma experienced by victims and witnesses. We are doing a range of things. First, we are establishing model waiting rooms for victims and witnesses so that they will feel less stressed and more comfortable, meaning that they are more likely to give compelling evidence. Secondly, in the courtroom itself, we are rolling out section 28 measures for pre-recorded cross-examination to Crown courts nationally. This autumn, we will extend that to victims of sexual offences or modern slavery offences in Leeds, Liverpool and Kingston upon Thames.
David Hanson (Delyn) (Lab)
Yasmin Qureshi (Bolton South East) (Lab)
The family courts are full of people representing themselves. The new President of the Supreme Court, Lady Justice Hale, has described the Government’s legal aid reforms as a “false economy”. Does not the Minister agree that restoring early legal aid would not only reduce the number of cases coming to court, but save court time? Will he guarantee that the legal aid review will include an analysis of the cost to the rest of the legal aid system that has resulted from the Government’s abolition of early legal aid?
The Minister of State, Ministry of Justice (Dominic Raab)
It is certainly right that we need to try to reduce the number of cases getting into the family courts in the first place, especially given that witnesses and others involved are often more traumatised by the process of going to court. The terms of reference for the legal aid review have been clearly set out, and there is wide scope for the issues that the hon. Lady mentions to be taken into account, but I will not pre-empt or prejudice what the review will look at right now.
Robert Jenrick (Newark) (Con)
The exceptionally high cost to businesses of commercial litigation is good for commercial lawyers—perhaps I should declare an interest—but it is not good for businesses, whether they are large or small. One answer that has recently been developed is the use of commercial litigation financing. Will my right hon. Friend the Lord Chancellor look into ethical and other concerns surrounding that, as outlined by Lord Faulks in the other place recently?
Dominic Raab
I have looked into this important and sensitive area, and I have also spoken to my right hon. Friend the Member for Basingstoke (Mrs Miller), the Chair of the Women and Equalities Committee. I urge the hon. Member for East Dunbartonshire (Jo Swinson) to send me any evidence that putting the limit back to six months would actually make a difference, because some of the considerations that apply in relation to three months would also apply to six months.
Several hon. Members rose—
Suella Fernandes (Fareham) (Con)
Following my ten-minute rule Bill in March calling for the reform of family law, including a robust enforcement of child arrangements orders, opening up the family courts in care proceedings and updating our anachronistic divorce laws, what progress have the Government made on their family law review, which was announced in the summer?
Dominic Raab
I thank my hon. Friend for her proposals and the thought that she has put into them. The time taken to conclude public family law cases has nearly halved since 2011. We are still working through very real issues with the relevant Departments, including the Department for Education. On private law, we are committed to facilitating the settlement of far more family disputes so that we avoid families, vulnerable witnesses and sometimes victims having to go through the trauma of court proceedings.
Bridget Phillipson (Houghton and Sunderland South) (Lab)
Dominic Raab
The hon. Lady raises her point tenaciously. I welcome the opportunity to sit down with her and the hon. Member for Sunderland Central (Julie Elliott) to look at the issue. We will ensure that the refurbishment is carried out as soon as reasonably practical. In the long term, we want to ensure that in her constituency and across the country we have the right courts in the right places, and with the right technology and refurbishment, to ensure that they deliver the best access to justice.
Robert Neill (Bromley and Chislehurst) (Con)
The reputation of our legal system partly depends on our respect for our international obligations. In advance of the Committee of Ministers, will my right hon. Friend the Secretary of State bear in mind that respecting the judgments of the European Court of Justice is a better guide for this country’s reputation than the amateur jurisprudence of the Dog and Duck?
Ellie Reeves (Lewisham West and Penge) (Lab)
The recently published Bach commission report highlighted a number of serious issues relating to access to justice, including representation at inquests. In the light of tragic events such as Grenfell Tower and Hillsborough, will the Minister commit to providing legal aid for inquests in all cases when the state is funding one or more of the other parties?
Dominic Raab
I thank the hon. Lady for her question on this pertinent and salient point. Legal aid remains available for inquests through the exceptional case funding scheme. Although those decisions are obviously decided independently, I reassure her that more than half the applications in relation to inquest cases in 2016-17 were granted.
Andrew Selous (South West Bedfordshire) (Con)
Full-body scanners that detect drugs that are concealed within the person are successfully used across America. The Ministry of Justice has trialled one scanner. Has there been an evaluation, will we see more trials, and could the scanners be used on a mobile basis?
Justice Update
Dominic Raab Excerpts(6 years, 8 months ago)
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The Minister of State, Ministry of Justice (Dominic Raab)
When the Supreme Court handed down judgment in the case of R (Unison) v. Lord Chancellor on 26 July, the Government took immediate steps to stop charging fees in the employment tribunals. We also said that we would bring forward detailed arrangements to refund people who had paid fees. We will today be launching the first phase of the refund scheme.
We will use this first phase, which will last up to four weeks, to ensure that the refund process works efficiently and effectively. From today, officials in the Ministry of Justice will be writing to an initial group of up to 1,000 people who paid fees for proceedings in the employment tribunals, inviting them to take part. This group will consist of people who have contacted us since the Supreme Court judgment inquiring about a refund. Those who receive a refund will also be paid interest from the date their payment was received.
We recognise that during the initial phase of the refund scheme, there is likely to be considerable interest in the details of the scheme. For those who have paid employment tribunals fees, but have not been invited to take part in the initial stage, we are setting up a pre-registration scheme so that they can register an interest in applying when the full scheme is rolled out. Those who wish to do so can register either by email at: ethelpwithfees@hmcts.gsi.gov.uk: or alternatively by post to the following addresses:
For proceedings in England and Wales
Employment Tribunals Central Office (England and Wales)/Employment Appeal Tribunal (EAT) Fees
PO Box 10218
Leicester LE1 8EG
For proceedings in Scotland
Employment Tribunals Central Office Scotland/Employment Appeal Tribunal (EAT) Fees
PO Box 27105
Glasgow G2 9JRX
This phase is primarily aimed at people making applications for refunds in single claims. During this period, we will also be working with the trade unions on how this process should be best applied to applications for refunds in larger multiple claims.
We plan to roll out the full refund scheme early in November. At that point, anyone who has paid a fee in the employment tribunals, whether in a single or multiple claim, will be able to claim a refund.
Those who will be eligible to apply for a refund under the scheme are:
People who paid a fee directly to the Employment Tribunal or Employment Appeal Tribunal, and have not been reimbursed by their opponent pursuant to an order of the tribunal.
People who were ordered by the tribunal to reimburse their opponent their fee and who can show that they have paid it.
Representatives (such as a trade union) who paid a fee on behalf of another person and have not been reimbursed by that person.
The lead claimant (or representative) in a multiple claim who paid a fee on behalf of the other claimants.
Further guidance will be available when the scheme is rolled out.
To receive a refund, applicants will be invited to complete an application form with their details, details of their employment tribunal claim and the fees that they paid. These details will be verified against HMCTS’s records. Where people are unable to provide full details of the fees they paid, or the details they provide do not accord with the details we hold, their application will not be refused automatically, but it may take longer to process.
Where a person is claiming for fees that they reimbursed to their opponent pursuant to a tribunal order, they will be asked to provide a copy of the tribunal order, and proof of payment. In cases where a person reimbursed their opponent under a private settlement, they will not be eligible for a refund; in such cases, the person who paid the fee to the tribunal will be eligible for a refund.
All applicants will also be asked to sign a declaration of truth about the details they provide. Refunds will be made to the applicant’s bank account; if an individual does not have a bank account, they can contact HMCTS for alternative methods of payment.
[HCWS186]
Dangerous Driving involving Death: Sentencing
Dominic Raab Excerpts(6 years, 8 months ago)
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The Minister of State, Ministry of Justice (Dominic Raab)
It is a great pleasure, as ever, to speak under your doughty chairmanship, Mr Hollobone. I begin in the customary manner by congratulating the hon. Member for Cardiff West (Kevin Brennan) on securing this debate on sentencing for causing death by dangerous driving offences. I know that many colleagues here will have dealt with tragic cases in their constituencies; we have heard, movingly, of a couple of them. Those who have had that misfortune will know that reckless driving ruins lives and devastates families, whether the culprit is racing, talking on a mobile phone or under the influence of drugs or alcohol.
The hon. Gentleman has championed this cause tenaciously since the tragic case in the summer of 2016 in which Michael Wheeler and Melissa Pesticcio started a car chase that, as he described, left Sophie Taylor dead and her passenger Joshua Deguara seriously injured. I extend my deepest sympathies to Sophie’s mother Jackie, whom the hon. Member for Cardiff West described, and to Sophie’s wider family and friends. I cannot begin to imagine their loss. The technical and legal changes that we are making will not bring her back, but these reforms must try to deliver some reassurance and solace, through a greater sense that justice is being done. I also pay tribute to Joshua Deguara and his family, whose suffering has been immense. The case highlights the need for reform.
Thomas Crowther, QC, the Cardiff Crown court judge in the case of Sophie Taylor, said that
“that shattering of two families was completely avoidable. It was caused by…the self-righteous and jealous rage”
of the defendants, who were
“chasing her down to frighten her and teach her a lesson”.
The court sentenced Michael Wheeler to seven and a half years in prison and Melissa Pesticcio to six and a half years.
Such cases are far too common. The reforms that we have announced this week will come too late for the families of Kris Jarvis, John Morland and James Gilbey, to name the victims of just a few of the tragedies that have struck me as I have worked on proposals for reform. The hon. Members for St Helens South and Whiston (Ms Rimmer) and for Lewisham West and Penge (Ellie Reeves) gave moving accounts of tragedies in their constituencies; I pay tribute to them and extend my sympathies and condolences to the families. I appreciate the frustration and anguish that they must feel. I met Major Gilbey, James’s father, last week. It is right to pay tribute to his courage and strength, and to all the families who have campaigned for a change in the law. Numerous colleagues across the House have also raised cases with me and my predecessors at the Ministry of Justice.
We recognise that the law has too often prevented judges from handing down sufficiently long sentences for the very worst cases of dangerous driving, bearing in mind the severity of the harm and the anguish of the victims’ families. We have looked at the evidence, and now is the time to change the law. Although we cannot bring back lost loved ones, we can make sure that justice is done. Yesterday, we published our response to the consultation on driving offences and penalties relating to causing death and serious injury. The consultation, which closed earlier this year, received more than 9,000 submissions with different views on the offences and penalties. That shows the widespread public interest in reform and the concern about how the law has operated.
Based on the evidence, we propose three specific changes to the law. I hope the hon. Member for Cardiff West will welcome them, but I will also try to address his specific points. Even more importantly, I hope the changes will give the victims and the wider public a stronger sense that justice is being done. All three proposals received overwhelming support in the consultation.
First, we propose to increase the maximum penalty for causing death by dangerous driving from 14 years to life imprisonment. We want the courts to have additional powers to deal with the most serious cases in which life is lost. In 2016, the average sentence for causing death by dangerous driving was five years. In the last two years, three sentences of longer than 10 years have been imposed. That makes the case that those sentences are not attracting the level of seriousness that the hon. Member for Cardiff West and the Government think is due.
In answer to the hon. Gentleman, the point of the change is to send an unequivocal, crystal-clear message to the courts that they can and should impose a higher sentence—a life sentence—for the very worst cases. It is for the Sentencing Council to decide whether new guidelines are needed on this sentence or on any of the others that I will mention. He is right to mention that the ULS—unduly lenient sentences—scheme applies to those cases and that they will therefore be referred to the Court of Appeal if the Attorney General so decides. He rightly acknowledges that as politicians, we cannot and should not interfere with individual decision making, as opposed to the sentencing framework that applies in such cases.
In very serious cases in which there are multiple victims, in which the offender has previous convictions or in which their behaviour is particularly reckless and culpable—as in some of the cases described by the hon. Members for St Helens South and Whiston and for Lewisham West and Penge—offenders will face a maximum life sentence. The effect of that change is twofold. Offenders who receive a life sentence will serve a minimum period in prison and will be released only when the Parole Board considers it safe. For offenders who do not merit a life sentence, the court will have the power to impose a determinate sentence of any length. That will empower the courts to reflect the full severity of the worst offending and its devastating impact on victims and their families.
Alex Chalk
The Minister speaks about sending a powerful message. A powerful message is sent to the Sentencing Council too. Does he agree that for offences such as stalking, for which the maximum sentence has been doubled, that message has been reflected to a large extent in the Sentencing Council’s most recently published guidelines?
Dominic Raab
My hon. Friend is right. I remember his tenacious campaign on that subject from my early days as a Justice Minister. As well as empowering the courts, the change sends a message that will have an effect, right through the system, on the raw power available to a sentencing court. It will have a knock-on effect on the Sentencing Council and its ability to assess and consider whether further guidelines need to be provided. At the appeal level, there is also the ULS scheme.
In the time available, I will address the other key proposals. The second proposal is to raise the maximum penalty for the separate offence of causing death by careless driving while under the influence of drink or drugs. We recognise that although the driving in such cases may not amount to dangerous driving, the overall seriousness of the offence is the same, because of the combination of careless driving and the irresponsible decision to get behind the wheel under the influence of drink or drugs. Again, for the worst cases, we propose that the maximum sentence be life imprisonment.
Our third proposal will close a gap in the law. At the moment, if a driver who is driving carelessly injures another road user, passenger or pedestrian, the maximum penalty is a fine, even if the incident results in the victim being left with serious, debilitating or permanent injuries. The case that particularly struck me was that of Sophie Wilkinson, who was left in a coma with a life-changing set of injuries after a horror crash in 2007. We need the criminal law to cover careless driving that results in such severe harm and injury, so we will introduce a new offence of causing serious injury by careless driving. That offence will carry a custodial penalty and will sit alongside the existing offence of causing serious injury by dangerous driving.
Those are the three key areas of reform that we plan to implement as soon as parliamentary time allows. We will incorporate any further changes that emerge from the review of cycling safety announced by my right hon. Friend the Secretary of State for Transport last month, so that we have a consistent overarching framework for sentencing people who kill or cause serious injury on our roads. I am grateful for the time and effort that so many people, including the hon. Member for Cardiff West and the campaigning families, put into their responses to the consultation. No punishment in these cases can make up for the loss of a loved one, but we can make sure that justice is properly done.
Kevin Brennan
The Minister says that three sentences longer than 10 years have been imposed in the last couple of years, but he did not say that the maximum 14-year sentence had been used. I hope he wants to signal that that maximum sentence should be used more frequently.
Dominic Raab
The hon. Gentleman is absolutely right. As we develop these proposals, I look forward to working with him and other hon. Members across the House. It is the very least that the victims and their families deserve.
Question put and agreed to.
Oral Answers to Questions
Dominic Raab Excerpts(6 years, 9 months ago)
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Ronnie Cowan (Inverclyde) (SNP)
2. When the Government plan to announce how rebate arrangements will work for people who have paid employment tribunal fees.
The Minister of State, Ministry of Justice (Dominic Raab)
Following the Supreme Court judgment on employment tribunal fees of the end of July, we immediately stopped charging them. We are putting in place arrangements to refund those who have paid the fees in the past, and we will announce the practical, detailed arrangements shortly.
Ronnie Cowan
I have been contacted by a constituent who highlighted the stress and financial burden that was placed on them while going through an employment tribunal case that they ultimately won. Will the Minister ensure that those who are entitled to claim back employment tribunal fees are made aware of the process and reunited with their money in a timely fashion?
Dominic Raab
The hon. Gentleman is absolutely right that it can be quite an ordeal to go to an employment tribunal—or any tribunal—which is why I pay tribute to the conciliation work of ACAS. We will set out practical arrangements for the reimbursement of those fees. We want to ensure that all the points—particularly about people’s awareness—are properly thought through before we do that.
Robert Neill
It is no pleasure to say that a number of the criticisms of the development of this policy were foreshadowed in a Justice Committee report in the previous Session. As well as rightly and promptly acting to reimburse fees paid, will the Minister undertake to look at some of the specific recommendations in that report and at the factual findings on the evidence in the Court’s judgment? That would highlight a better way of developing policy in this area so that we do not end up in this situation again.
Dominic Raab
I thank the Chair of the Select Committee. We will certainly further consider his Committee’s report into this—[Interruption.] The former Chair of the Select Committee—
Chris Bryant (Rhondda) (Lab)
There is no Committee. He’s the Chair, but there is no Committee.
Dominic Raab
In due course.
The cost of employment tribunals last year was £68 million. Only £8 million came from fees; the rest was from taxpayers. It is inherently difficult to balance the contribution required by those who use the justice system against the amount that needs to be borne by the taxpayer, and we recognise that we got that balance wrong. We have ended those fees and are looking at practical arrangements to ensure that those affected are reimbursed.
John Cryer (Leyton and Wanstead) (Lab)
In the light of the Court ruling and the Select Committee’s report, was the decision to introduce the fees in the first place a mistake?
Dominic Raab
We certainly accept the Supreme Court ruling. We think that we got the balance wrong and we have ended the fees. We are looking to ensure not only that we reimburse those affected, but that we learn lessons for the future.
Mrs Maria Miller (Basingstoke) (Con)
The Women and Equalities Committee also called for changes in tribunal fees, particularly because they affect pregnant women and new mums, who have experienced significant increases in discrimination at work in the past 10 years. Will the Minister undertake to look at the other part of our recommendation, which is to increase the time limit from three months to six months for pregnant women and new mums to bring cases to court?
Dominic Raab
We will certainly look into all aspects of the various Select Committee reports when charting the way forward.
Joanna Cherry (Edinburgh South West) (SNP)
May I start by welcoming the Minister to his place?
The Supreme Court ruled that the secondary legislation that brought in the employment tribunal fees interfered with access to justice and employment rights, and that it discriminated unlawfully. Does the Minister accept that the Supreme Court’s judgment illustrates that fundamental rights such as equality and access to justice should not be changed or undermined by secondary legislation that receives little or no parliamentary scrutiny?
Dominic Raab
The hon. and learned Lady makes her point in a typically powerful way. The Supreme Court also recognised that fees can have a role to play. Of course, they do help to secure justice and access to justice by making the necessary resources available. Equally, we recognise that we got the balance wrong. That is why we have taken immediate action to end the fees. We will be coming up with proposals on the practical arrangements for reimbursement shortly.
Joanna Cherry
In 2015, the Scottish Government said that as soon as the power to do so was devolved—and that is pending—they would abolish employment tribunal fees. Does the Minister agree that the fact that the Scottish Government chose to do that voluntarily—the UK Government were forced to do so by the Supreme Court—shows that the case for the devolution of employment law to Scotland is strong so that the Scottish Government may protect the interests of Scottish workers and access to justice?
Dominic Raab
We are fully in favour of the principle of devolution. A whole range of justice matters have been devolved, and we will look very carefully at how we get the balance right.
Robert Jenrick (Newark) (Con)
In the Supreme Court, Baroness Hale was very concerned about meritorious claims being put off by the fees. She also acknowledged that there are some unmeritorious claims, and those are the ones that damage relations in the workplace. Will the Minister consider fairer ways of sifting out unmeritorious claims, such as having a sift before the application is made into a full case?
Dominic Raab
My hon. Friend makes a strong point and that is certainly something we can look at. Equally, it is fair to say we got the balance wrong on the specific issue of fees. One of the strong elements we are looking to reinforce is the role of ACAS. We have seen that conciliation and the number of cases referred to conciliation have had a strong impact on reducing the number of cases that need to go to court or a tribunal.
Richard Burgon (Leeds East) (Lab)
I wrote to the Secretary of State back in July to call on him to issue a full and unequivocal apology to working people for deliberately and unlawfully blocking their access to justice through employment tribunal fees. Last week, I received a wholly inadequate reply, which I have here. Will the Minister apologise today for the suffering that this policy has caused hundreds of thousands of working people?
Dominic Raab
We have conceded that we got the balance wrong. I am happy to say that I am very sorry for any frustration or deleterious impact that this has caused anyone who has been affected. That is why we are acting so quickly to end the charges and to make sure there are practical arrangements for the reimbursement of anyone affected by these fees.
Ms Marie Rimmer (St Helens South and Whiston) (Lab)
3. How Government investment in (a) cyber-security and (b) the National Cyber Security Centre will support victims of cyber-crime; and if he will make a statement.
Lucy Allan (Telford) (Con)
7. What assessment the Department has made of the adequacy of sentencing for crimes involving child sexual exploitation.
The Minister of State, Ministry of Justice (Dominic Raab)
We have a robust sentencing framework for all crimes involving child sexual exploitation. The changes made in the Criminal Justice and Courts Act 2015 reinforced those punishments, giving the Parole Board a greater role to make sure that serious offenders are released only when it is safe.
Lucy Allan
Mubarek Ali will be released from prison on 1 November, five years after receiving a sentence of 22 years for child sexual exploitation in Telford. As the Minister just said, legislation was passed in 2015 to ensure that most serious offenders cannot be released until they have served two thirds of their sentence and satisfied the Parole Board that they are not a risk. What can he do to ensure that that legislation applies in this case?
Dominic Raab
I am aware of the case my hon. Friend raises, and of the heinous crimes that were committed and the appalling impact they had on the victims. She will know that the overhaul of the sentencing framework between 2012 and 2015 means that that type of sentence would not now be passed in that type of case. She will also appreciate that I cannot intervene in individual cases and that changes to legislation to strengthen sentences cannot be passed retrospectively. That is the problem and challenge in this case.
Jim Shannon (Strangford) (DUP)
Bearing in mind that 56% of all victims of sexual offences in Northern Ireland in 2011 were under the age of 18, will the Minister outline the multi-regional approach that will be taken to deal with the aftermath of the sexual exploitation of children in the transition to adulthood?
Dominic Raab
That is a detailed and complex area, and I would be happy to write to the hon. Gentleman on its impact in Northern Ireland.
Lisa Nandy (Wigan) (Lab)
One barrier to successful prosecutions in child sexual exploitation cases is the fact that, too often, victims are wrongly thought to be complicit in their own exploitation. That highlights the importance of the issue my hon. Friend the Member for Rotherham (Sarah Champion) just raised. There must be absolutely no suggestion in any Government guidance that children can be complicit in their own exploitation. That is why the guidance from the Criminal Injuries Compensation Authority needs to be changed—and needs to be changed now.
Dominic Raab
The hon. Lady makes a powerful point. No one wants to lay the blame at the door of any victim, let alone the most vulnerable—in this case children. She heard what the Secretary of State said about CICA: it will be looked at in the context of the issues that have arisen recently. It operates in a different context from the criminal justice system, in that it can apply when there has not been a criminal conviction.
Wendy Morton (Aldridge-Brownhills) (Con)
8. What steps the Government are taking to prevent the use of drones over prisons.
Ellie Reeves (Lewisham West and Penge) (Lab)
9. What assessment his Department has made of the reasons for recent trends in the number of employment tribunal cases.
The Minister of State, Ministry of Justice (Dominic Raab)
In 2014, the Government introduced a requirement for potential claimants to consider conciliation before starting proceedings at the employment tribunal. The number of cases going to conciliation quadrupled, rising to 92,000 in 2015-16.
Ellie Reeves
In the year after employment tribunal fees were introduced, sex discrimination claims fell by 67% and pregnancy discrimination claims by 37%. The Supreme Court made it clear in its recent judgment that fees disproportionately affected women. The Minister has outlined plans to reimburse those who have submitted claims, but what steps will be taken to compensate people who were denied access to justice because they could not afford to pursue a claim in the first place?
Dominic Raab
The hon. Lady is right to refer to the ending of the fees and the proposals for reimbursement that we will bring forward shortly. If there were potential claims that should have been made but were not, anyone who was unable to bring a claim can submit to the employment tribunal to have their case heard outside the usual time limits. The judiciary will consider those applications case by case.
Carol Monaghan (Glasgow North West) (SNP)
10. What his Department’s policy is on the jurisdiction of the European Court of Justice in the UK after the UK leaves the EU.
Luke Hall (Thornbury and Yate) (Con)
T3. Legal services in the UK are rightly held in the highest regard around the world and are a major asset to our economy. What is the Minister doing to ensure that we champion and defend the interests of the legal sector in this country?
The Minister of State, Ministry of Justice (Dominic Raab)
My hon. Friend is absolutely right: legal services exports contribute a trade surplus of £3.4 billion to the UK economy. The UK is a global leader in dispute settlement. We are working with the sector to promote this key comparative advantage. It is a priority for the Brexit negotiations, and, as a global leader, this is the message my ministerial colleague Lord Keen will be taking to the International Bar Association conference in Australia just next month.
Brendan O’Hara (Argyll and Bute) (SNP)
T2. Last week a report from the committee of the United Nations made 60 recommendations to the Government on how they could better comply with the UN convention on the rights of persons with disabilities. How will the Government respond, and what changes in Government policy can disabled people expect to see as a result?
Dominic Raab
What the public expect is for those fines to be collected in the most efficient and effective way possible.
Paul Scully (Sutton and Cheam) (Con)
T9. Can the Minister update me on when the revised version of practice direction 12J will be adopted and how the Government will ensure that judges and magistrates are aware of the change in order to improve guidance for judges overseeing child contact cases with allegations of domestic abuse?
Dominic Raab
We are absolutely committed to doing everything we can to improve the treatment of victims in the justice system. In relation to the practice direction to which my hon. Friend refers, we expect to receive the revised version from the president of the family division for ministerial agreement by the end of this month.
Ellie Reeves (Lewisham West and Penge) (Lab)
T6. Since the election, hundreds of constituents have contacted me about our current animal cruelty laws, which are not fit for purpose. A maximum prison sentence of six months for some of the most appalling crimes, including torturing a dog to death, is completely unacceptable. What steps will the Minister take to ensure that the sentencing guidelines are rigorously reviewed and strengthened?
Dominic Raab
I share the hon. Lady’s desire to see the most robust sentences for animal cruelty. The Government keep the sentencing framework under regular review, and I am not sure whether she is aware that in January the Sentencing Council published new guidelines on relevant aggravating factors in animal cruelty cases.
Alex Chalk (Cheltenham) (Con)
In the past 18 months, three of my constituents have died in HMP Bristol, which has one of the highest numbers of self-inflicted deaths in custody. What reassurance can be provided that that prison is being given the scrutiny and support that it needs to get those figures down?
David Linden (Glasgow East) (SNP)
T8. Is the Minister aware that the Equality and Human Rights Commission has recommended that the protections afforded by the EU charter of fundamental rights be retained in the UK? What is he going to do about that?
Dominic Raab
I am always bewildered by the approach of the Opposition to the charter. When Labour was in power, it claimed, rather fraudulently, that it was seeking an opt-out, but now that it is out of office and we are leaving the EU, it wants to opt back in. We have the strongest protections for human rights in this country, and they have been reinforced. We are going to see no diminution in those protections, but the charter adds uncertainty and is frankly surplus to requirements.
Mr John Whittingdale (Maldon) (Con)
Does my hon. Friend agree that the pilot scheme that allowed the filming of judges’ sentencing remarks in criminal courts has been a success? Will he now consider going further in allowing the broadcasting of court proceedings, so that justice is not just done but seen to be done?
Dominic Raab
We have made considerable progress in the Supreme Court and the Court of Appeal, and my right hon. Friend is right to say that one of the areas under review is the broadcasting of judges’ sentencing remarks in the Crown court. Last year, we conducted not-for-broadcast tests in eight Crown court centres, and we are looking at the experience from those trials with the judiciary in order to see how best to proceed.
Dr Paul Williams (Stockton South) (Lab)
T10. Last year, 316 people died in our prisons. Emails from prison doctors printed in the media a few days ago say that there are not enough medical staff in our prisons and that urgent hospital referrals are being cancelled because of prison escort shortages. What are the Justice Secretary and the Health Secretary planning to do to tackle this growing healthcare crisis in custody?
Helen Jones (Warrington North) (Lab)
In the last Parliament, a joint report of the Petitions Committee and the Women and Equalities Committee found widespread exploitation of women at work, and especially of young women in vulnerable employment. Now that the barrier of fees has been removed, will the Minister look seriously at the report’s recommendations and work with other Departments to ensure that women are aware of their access to justice?
Dominic Raab
As I explained earlier, we will take into account all the recommendations and findings of the Select Committee report as we chart the way forward.
Dr Julian Lewis (New Forest East) (Con)
Did the Secretary of State read the letter in the press by the widow of our late colleague, Ian Gow, contrasting the fact that the two IRA murderers suspected of killing him have no fear of arrest with the recent revelation that hundreds, if not thousands, of letters are being sent out to veterans of the troubles with a view to further prosecutions? Will he support the policy of a statute of limitations to put an end to this grotesque inequality of treatment?
Justice and Home Affairs Council: Post Council Statement
Dominic Raab Excerpts(7 years ago)
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The Minister of State, Ministry of Justice (Dominic Raab)
My noble Friend the Justice Lords Spokesperson (Lord Keen QC of Elie) has made the following written statement.
“A meeting of the Justice and Home Affairs Council took place on 8 and 9 June in Luxembourg. The Council took place on the day of, and the day after, the General Election. I represented the UK for Justice day. The UK’s Permanent Representative to the European Union, Sir Tim Barrow, and Shona Riach, Home Office Europe Director, represented the UK for Interior day.
Justice day
The Council agreed a number of proposals without discussion on Justice day, including a number of Council conclusions on areas including returns, children in migration and information exchange and information management including interoperability solutions.
Justice day began with the participating member states agreeing a general approach on the European Public Prosecutor’s Office (EPPO) under enhanced co-operation. The UK has always been clear that we will not participate.
A general approach was achieved on the supply of digital content directive. However, some concerns on a specific article remained; trilogues under the Estonian presidency are likely to come back to these issues. I expressed the UK’s support for the presidency’s compromise.
There was a policy debate on the European Commission (Commission) proposal for a provision on hearing the views of the child in parental responsibility cases arising from the Brussels lla regulation. There was broad support for such a provision. The Commission urged member states to make progress as it would help resolve the problem of refusal of recognition and enforcement of judgments on the basis that the child had not been heard. The UK agrees that refusal of recognition and enforcement of judgments is a problem but I asked that member states keep options open going forward, rather than committing to a provision now.
For the insolvency directive, the presidency presented the Maltese presidency’s paper on the role of national courts in restructuring procedures and the principle that debtors should remain, in whole or in part, in possession of their business. The UK supports the directive and I welcomed the direction of travel on both issues. The presidency concluded that member states had shown support on both issues and work would continue at the technical level.
There was then a discussion on the money laundering directive, for which a general approach was achieved. The UK has not opted in to this proposal.
The presidency reached a general approach on the recast of Regulation 45/2001, which regulates the processing of personal data by EU institutions and bodies, and was being re-cast to bring it in line with the wider EU data protection package. As the proposal has not yet cleared parliamentary scrutiny in the UK, I did not give a position.
Over lunch, EU Ministers discussed ways of countering illegal hate speech online. The Commission updated the Council on the second progress report on co-operation with internet service providers. EU Ministers expressed support for the Commission’s work in this area. The Government views co-operation with internet service providers as an important step in the collective work to reduce harm caused by hate online, and I suggested producing a toolkit to help small platforms to apply the same standards as bigger providers.
After lunch, at the start of a joint session of Interior and Justice Ministers, the Council held a one minute silence to remember those killed and injured in the Manchester and London Bridge terrorist attacks. I then provided an update on the attacks. I noted the quick and effective response from our emergency services and that the investigations were ongoing. I also thanked Ministers for the many messages of condolence, and stressed the need to work together to combat radicalisation and deprive extremists of safe spaces to operate online.
The Council then moved on to discuss Criminal Justice in Cyberspace, covering e-evidence, data retention and encryption.
For e-evidence, the Commission presented a number of practical measures as well as possible legislative approaches for improving cross-border access to electronic evidence. The Government agree we must be able to bring to justice cross-border crimes planned, facilitated or committed online irrespective of where the electronic evidence is stored. I underlined the importance of this agenda, in particular for bringing terrorists to justice and set out practical action which could help. The presidency concluded that the Commission should continue to seek expert input whilst developing legislative proposals.
For encryption, the Commission presented an update on the challenges caused by end-to-end encryption for law enforcement, as well as the technical and legal issues.
For data retention, the presidency provided a brief update on discussions held so far in the friends of the presidency group on data retention. The Government have played a leading role in the group and fully support these discussions as a way of building an evidence base for the necessity of retention.
The final discussion on Justice day was focused on safeguarding children involved in irregular migration to Europe across the Mediterranean. EU Ministers agreed that protecting children at all stages is a priority and endorsed the need for a comprehensive approach to migration.
Interior day
Interior day began with the agreement of a general approach on the European Travel and Information Authorisation System (ETIAS). As the UK is not part of the border control aspects of the Schengen agreement, it will not take part in this proposal.
This was followed by a policy debate on the Second Generation Schengen Information System (SIS II) proposals. There was broad agreement among EU Ministers that the SIS II could be used for entering preventive alerts on children at risk of abduction and disappearance, with the caveat that clear definitions were needed. There was also some support from EU Ministers on the creation of a new alert on the SIS II for ‘inquiry checks’ against suspected criminals or terrorists.
There was then a general discussion on actions to address the migration crisis, with a focus on the EU-Turkey agreement and the Central Mediterranean. Member states were encouraged to take an active role in implementing the Malta declaration.
Over a working lunch focused on Counter Terrorism, there was a progress update on the work of the Counter Terrorism Group followed by a presentation of fiches on data sharing with EU agencies from Counter Terrorism Co-ordinator Gilles de Kerchove. There was also a discussion on proposals to bring together the various European bodies responsible for countering radicalisation, including the Radicalisation Awareness Network and the European Strategic Communications Network.
The afternoon session began with a debate on key operational practices and obstacles of returns policy and the use of visas as leverage. It was concluded that member states would need to work together on returns and readmission and that the next step would be to look at where and when leverage should be used.
There was then a discussion on information systems and interoperability, following the final report of the High Level Expert Group on data sharing (HLEG). The HLEG’s priorities were highlighted, including a shared biometric matching service and a common data repository, while the need to improve data quality, implement PNR and improve co-operation with Europol and Interpol were common themes in discussion.
Finally, there was an update on negotiations on the seven legislative proposals on the Common European Asylum System. Of these measures, the UK has only opted in to the recast Eurodac Regulation.
Over both days the Estonian delegation set out their priorities for their presidency of the Council of the EU, which begins in July. The fight against terrorism and serious crime will continue to be a priority. ECRIS will remain a priority file, as will criminal justice in cyberspace and data retention. The incoming presidency will prioritise safeguarding Schengen and free movement in the face of terrorism and mass migration, meaning that the asylum package, the Valletta Action Plan, returns, and the Blue Card directive will be priority files, as will work on radicalisation, interoperability of EU information systems, the Entry Exit system and ETIAS. Prüm, Passenger Name Records (PNR) and a renewed mandate for EU LISA will also be high on the agenda, as will co-operation between the EU and Ukraine.”
[HCWS12]
Oral Answers to Questions
Dominic Raab Excerpts(7 years, 7 months ago)
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Mr Gyimah
Every death in custody is a tragic event. As the Minister with responsibility for prisons—I have been in the role for four months—I take every one of them seriously. I look at all the reports and I sign many of the responses to those reports where, for example, the independent monitoring board is involved. We have plans to make sure that we deliver on them.
Mr Dominic Raab (Esher and Walton) (Con)
Does the Secretary of State agree that we need bold reform to cut reoffending and that that must mean giving prison governors the powers and the accountability to innovate, especially when it comes to skills training and drugs rehabilitation in the prisons that they run?
Elizabeth Truss
My hon. Friend is nothing but bold. I absolutely agree with him that we need to change the way we are doing things, because the fact is that we have had a persistently high reoffending rate. Almost half the people in prison will reoffend within a year, and that is not acceptable. We need to give governors the power to turn lives around, to get people off drugs and to get them into work.
Oral Answers to Questions
Dominic Raab Excerpts(7 years, 9 months ago)
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Mr Dominic Raab (Esher and Walton) (Con)
The Lord Chancellor and Secretary of State for Justice (Elizabeth Truss)
First, I would like to pay tribute to my hon. Friend’s work on human rights reform as a Minister in this Department. He is a great champion of liberty.
The Government are committed to scrapping the Human Rights Act and introducing a British Bill of Rights.
Mr Raab
May I say at the outset that it is an honour to be the first Member to welcome the new Justice Secretary and the new Front-Bench team to their posts? I wish them every success. I also reassure my right hon. Friend, from experience, that being a lawyer is of very limited value in her Department—no offence to the Minister of State.
Britain’s decision to leave the EU will remove the jurisdiction of the Luxembourg Court, which is probably the biggest obstacle to delivering a Bill of Rights. May I welcome my right hon. Friend’s statement on the intention to continue this reform and encourage the Government to proceed to consultation as soon as possible?
Elizabeth Truss
This is an important reform; we need to get it right. We will be introducing proposals in due course. We will deliver on this manifesto commitment.
Courts and Tribunals Fees
Dominic Raab Excerpts(7 years, 11 months ago)
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The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
I congratulate the shadow Justice Secretary, the hon. Member for Leeds East (Richard Burgon), on his new position and welcome him to the Opposition Front Bench. I pay tribute to the work of the hon. Member for Hammersmith (Andy Slaughter), who held our feet to the fire assiduously over many weeks and who I am sure will continue to do so from the Back Benches.
I also thank my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) for his Committee’s important report and work on court and tribunal fees and charges, and hon. Members from across the House for their invaluable contributions to this debate. The Government will respond to the Committee’s report in due course, but I welcome this opportunity to address some of the issues it raised. I will try to respond to as many as is practical in the time allocated.
As hon. Members will appreciate, the principal reason for raising fees is financial—there is no getting away from that. The shadow Justice Secretary said that he would get rid of all the fees. He was a little thin on how he would pay for them, but perhaps that does not matter too much to the Labour party. The raw truth is that the Ministry of Justice is not a protected Department. We have a very challenging financial settlement, so we must reduce its annual spending by 15% in real terms, which means about £1 billion in cash terms by 2019-20.
It is worth remembering that this is not just about cuts; we are also committed to this approach precisely so that we can invest £1.3 billion to modernise our prisons, and more than £700 million to transform our court system. Achieving those dual financial objectives inevitably requires difficult decisions. There is no ducking them. We have to look at every area of the Department’s finances, and I am afraid that there can be no exceptions for the courts.
To ensure that the courts and tribunals are properly funded, and access to justice is properly protected, increases to court fees will be necessary. The cost of our courts and tribunal system to the taxpayer is unsustainably high, and it is only right that those who use the system pay more to balance that burden with the taxpayer.
Robert Neill
In coming to that conclusion, has the Department carried out research into or a survey on the costs to the court system of delays caused by persons appearing unrepresented as litigants? Should not that also be taken into account as part of the equation? What data does the Minister have?
Mr Raab
My hon. Friend raises a perfectly legitimate point. If he is willing to be patient, I will write to him with any precise details that I have.
In its report, the Committee accepts the principle of charging court users a contribution towards the cost of operating our courts. Whatever the specifics, I think that that principle is accepted. It is a question of balance between taxpayer subsidisation and user pay. I welcome the Committee’s finding in that regard.
Under the Treasury’s “Managing public money” rules, fees for public services should usually be set at a level designed to meet the cost of those services. However, Parliament has granted, through the Anti-social Behaviour, Crime and Policing Act 2014, a power that allows the Government to set court and tribunal fees at a level above the cost of the service. The income from those fees must be used to fund an efficient and effective system of courts and tribunals. When setting these fees, the Lord Chancellor must have regard to a number of factors, including the need to preserve access to justice. I assure hon. Members that we take that requirement seriously. The idea that somehow a profit is being made is not accurate according to the law, let alone the practice.
I will now turn to the specifics of employment tribunals. I appreciate the concerns expressed both by the Committee and by hon. Members across the aisles. Those who have spoken today have mentioned in particular the impact of fees on employment tribunals. When fees were introduced, there were three main objectives. The first was to transfer a proportion of the cost of the tribunal from the taxpayer to those who use it, where they can afford to pay. The second was to encourage people to consider other ways of resolving disputes, in particular the ACAS conciliation services, which are provided free of charge. There has been virtually no mention of them in this debate. The third objective was to protect access to justice. I do not think that anyone could disagree that those are legitimate aims to pursue.
The main concern about employment tribunal fees has been the large fall in the number of claims immediately after fees were introduced, but it is not that surprising that the volume of claims has fallen. It is obvious that more people will use a service if it is free than if they have to pay to use it. It is also worth reminding hon. Members across the House of a few key facts. First, help is available for those who cannot afford to pay, through fee remissions. Under that scheme, someone who is eligible for help may have the fee waived either in part or in full. We have taken steps to make sure that more people are aware of the help available, and that has led to a marked increase in take-up under the scheme.
Secondly, and crucially, the introduction of the ACAS early mandatory conciliation service has been a success, with more than 83,000 people referring their disputes to ACAS in the first year. As many people are using the ACAS conciliation service now as were previously referring their disputes to the ACAS voluntary service and the employment tribunals combined. That is important, regardless of whether the dispute ends up with a meritorious claim succeeding; it is valuable that potentially divisive disputes can be settled in that way.
Mr Raab
I will come on to that, if the right hon. Gentleman will bear with me for a few moments, because there are a lot of other points to get through. The point—this has been missed almost entirely in the debate—is that we are seeing the right kind of behavioural change.
Thirdly, the tribunal has the power to order the respondent to reimburse the claimant with his or her fee, if the claim is successful. Finally, on top of that, the Lord Chancellor has an additional power to remit fees where there are exceptional circumstances.
I appreciate that the Committee and hon. Members have not been shy in criticising the delay in completing the review. It is true that when we announced the review in June last year, we had hoped to finalise it by the end of the year. That simply was not possible and it is clearly important that we take time to carefully consider all the relevant material. It is regrettable that it has taken longer than planned, and I am sorry about that. I have looked into the situation and we will get the response published as soon as possible.
In our evidence to the Committee, however, we made it clear that, while we hoped that the review would be completed swiftly, we could not give a firm commitment on timing. I reassure hon. Members and the Chair of the Committee that the review is very close to completion, so I hope to be able to make an announcement in the near future.
Robert Neill
If the Minister will forgive me for saying so, his predecessor told us in February that he hoped we would have it “sooner rather than later.” What has caused the delay? Has the material been fully assembled in his Department, and why can it not be published?
Mr Raab
I thank the Select Committee Chairman, who is being as tenacious and assiduous as ever. We are in a position to make the announcement in the near future. I do not think it is right to split the evidence and our response to it. Hon. Members in this House and the public expect us, when we produce the evidence, to be able to say what we think about it. If he is patient with us, he will get both in reasonably short order. On top of the apology that I have already given, I want to make it clear that it will be coming as soon as is practicable.
Mr Raab
I am going to make a bit more progress. I have been given some time, and I have given way to hon. Members from across the House. If towards the end I have got time, I would be happy to take the hon. Lady’s intervention.
I turn to divorce fees, about which hon. Members have made some important points. The Justice Committee criticised the recent increase in the fee for divorce to £550, primarily because of the risk to vulnerable women. The Government have sought to make sure that vulnerable women are protected within the divorce fees scheme. Although it is true—this point has been made—that more women than men petition for divorce, it is also true, although it was rather neglected in this debate, that women are more likely to qualify for a fee remission. In the circumstances of a divorce or any other matter where the parties have conflicting interests in proceedings, the applicant is assessed on his or her own means, rather than on those of the household. For victims of domestic violence, the first priority is to ensure the victim’s safety. There is no court fee for an application for a non-molestation order or any applications in relation to one.
I turn to money claims. There has been criticism of the introduction of enhanced fees for money claims in March 2015, and some criticism of the quality of the research that supported those increases. We have said all along that we took the decisions that we did based on the best evidence available at the time. As things have turned out, the impact of those fee increases on the volume of claims has been greater than we thought. It is easy to be wise in hindsight, and we are investigating the reasons, but in the meantime we have decided not to implement the further increases we proposed. But given the very challenging financial circumstances, we have been clear—I want to be honest with the Chair of the Select Committee and hon. Members—that we may need to come back to those and look at them again when we have got a better understanding of the specific impacts.
There have been criticisms of our proposals to raise the fee in immigration tribunals to full cost levels. We estimate that those proposals would generate about £35 million a year in additional income. The normal policy over many years has been to charge fees at full cost unless there are good reasons not to. I do not see, given the remissions and the other flexibility, why the taxpayer should foot the bill in this case. We are currently considering in detail the responses to the consultation. Under our proposals, certain types of appeal would continue to be exempt from fees; we are talking about vulnerable people who need such flexibility the most. People receiving means-tested benefits, such as asylum support, would continue to have fees waived. We sought views on further exemptions, and specifically on whether we should exempt people in receipt of a Home Office destitution waiver. We are making sure that, notwithstanding the difficulty of the decisions, the most vulnerable are protected.
Meeting the challenges ahead cannot just be about increasing fees. That is why we recognise the need to invest in the courts and tribunals so that they are lean, efficient and fit to serve a modern, digital society. In the spending review, we announced that we would be investing, as I have said, more than £700 million to transform our courts and tribunals system. The scale of that investment and the ambition of our reform plans will enable us to build a justice system that is simpler, swifter and more efficient, because it takes better advantage of modern technology.
Other points and criticisms have been made. We take them on board, and we will respond to them fully in due course. We also need to have a sense of realism. Given the financial situation that we are still grappling with, fees are a critical part of the Ministry of Justice’s plans to meet our spending review challenges.
Mr Raab
My understanding, off the top of my head, is that it was £71 million. I will come back to the hon. Lady if I find out that that is incorrect.
The truth is that we cannot afford to duck these decisions around fees if we want to secure the long-term funding of the courts and the tribunals and deliver on the mandate on which the Government were elected. It is all very well for the Opposition to say that they want to scrap every fee that has been imposed or duck every difficult decision, but unless they can explain to the House how that will be paid for or the impact that it will have on our economy, it is not the responsible thing to do.
Mr Raab
I am going to finish, because of the second debate. Fee increases are never popular, but at every stage we have made it clear that we intend to protect the most vulnerable and make sure that those who cannot pay do not have to do so. We continue to consider carefully all the detailed points and recommendations made by the Select Committee, and we will publish our response later this year.
Oral Answers to Questions
Dominic Raab Excerpts(8 years ago)
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Gavin Newlands (Paisley and Renfrewshire North) (SNP)
3. What assessment he has made of the potential effect on the protection of human rights of UK citizens of the UK leaving the EU.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
The Government’s assessment of fundamental rights is set out in their policy paper, “Rights and obligations of European Union membership”, which was published on 14 April.
Gavin Newlands
I thank the Minister for his answer, but his Secretary of State wants to leave the EU and the Home Secretary wants to leave the European convention on human rights, so should we take it that when this Government are finished, the UK will no longer be party to any international human rights treaties? Is that really the message that the UK Government want to send to the rest of the world?
Mr Raab
I thank the hon. Gentleman for his question, but I think he probably knows by now that, in regard to the plans being worked up for the Bill of Rights, it is not the Government’s policy to withdraw from the convention. We have said that we cannot rule that out for ever and a day, but that is not our proposal now, and it is absolutely not the case that we would withdraw from a whole range of other international human rights treaties if we left the EU.
Mr David Nuttall (Bury North) (Con)
Does the Minister agree that if we stay in the European Union the real risk is that, rather than human rights policy being determined by this House and adjudicated on by British courts, it will be decided by the Brussels bureaucrats and the European Court of Justice, and that before we know it, prisoners will be given the right to vote?
Mr Raab
My hon. Friend makes his powerful point in an eloquent way. There is a recognition across the House, on whichever side of the wider debate, that some of the laws that have come out of the EU have been damaging to civil liberties, whether involving the European arrest warrant and the injustice inflicted on my constituent Colin Dines, or the right to be forgotten, which has a muzzling effect on free speech. There are certainly areas of concern, on whichever side of the wider debate Members are.
Joanna Cherry (Edinburgh South West) (SNP)
Gender equality is recognised as a fundamental human right by the European Union, and a report from the TUC has identified 20 key areas in which European Union law has enhanced the rights of working women, often in the face of opposition from Tory Governments. How does the Minister propose to ensure that these hard-won employment rights are protected in the event of a Brexit?
Mr Raab
I thank the hon. and learned Lady for her question. First, the vast majority of equal pay rights and women’s and workplace rights have been introduced by this House—by elected representatives accountable to the British people. I am surprised that she believes that the human rights and wider rights of our citizens and her constituents are better protected at EU level by bureaucrats and unaccountable politicians rather than by hon. Members in this House who are accountable to the British people.
Joanna Cherry
As the Minister well knows, we did not get equal pay for work of equal value until the European Court intervened, and we have wide maternity rights only because of European directives. The Prime Minister’s former adviser Steve Hilton, who supports leaving the EU, said in 2011 that maternity leave should be abolished. Does the Minister wish to add his voice to that particular pungent voice? If not, which employment rights would he abolish in the event of a Brexit?
Mr Raab
I thank the hon. and learned Lady for that, but I do not think that any of the factual assertions she has made are right. There is absolutely no plan such as that she suggests, and I do not support abolishing paternity rights; in fact, when I was a Back Bencher under the last Government and this point was raised, I was fully in favour of transferable parental leave. She is mistaken in what she says, but what is most striking is that the message she is sending to her constituents and the wider citizens of this country is that they should have no faith in her ability and that of the Scottish National party in this House to protect their rights.
Mr Ranil Jayawardena (North East Hampshire) (Con)
The convention was agreed in the 1950s, Britain joined the EU in the ’70s and the Human Rights Act was agreed in the ’90s. Twenty years on, does the Minister agree that it is important that we revisit all these papers, because rights were not invented by pieces of paper? Instead we should have a British Bill of Rights.
Mr Raab
My hon. Friend is right and makes an important point about the future direction of human rights laws in this country. We are party to the European convention on human rights, and that is a different and separate issue from the EU. Our regime is based around our membership of the European convention, and considerable legal uncertainty is created if the Luxembourg Court starts to interfere and create risks and wider uncertainty about which rules apply and how.
Andy Slaughter (Hammersmith) (Lab)
The Minister may wish this was not the case, but in fact the EU has provided and protected employment and human rights for part-time workers and working parents, with paid holidays, maximum working hours, measures to tackle discrimination at work, and time off to care for sick children. Does he think that those rights are worth protecting? Or does he agree with the billionaire stockbroker who is funding the Brexit campaign, Peter Hargreaves, who thinks we should leave the EU because
“we will be insecure again. And insecurity is fantastic”?
Mr Raab
It is thunder and lightning but it does not provide much clarity on the issue; the bottom line is that the hon. Gentleman has little faith in Labour fearsomely defending workers’ rights. Whichever side someone is on in this House or in this debate, they should want to uphold the right of this House to make those finely balanced decisions on employment regulation and make sure that they are tailored to the precise needs of this country, not those of bureaucrats and other vested interests in Brussels.
Mr Philip Hollobone (Kettering) (Con)
4. How many non-UK EU nationals (a) the UK has ever returned to prison in their own EU country under the EU prisoner transfer directive and (b) are in a UK prison.
Catherine McKinnell (Newcastle upon Tyne North) (Lab)
10. What progress he has made on proposals for reform of the Human Rights Act 1998.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
We will bring forward our proposals for a British Bill of Rights to replace the Human Rights Act. We have made good progress on the development of our plans, with input from practitioners, non-governmental organisations, academics and many others right across the UK. Our proposals will be announced in due course and we shall consult fully on them.
Catherine McKinnell
The Minister says that plans will be published in due course, but plans to repeal the Human Rights Act were announced in the Conservative manifestos in both 2010 and 2015 and in the Queen’s Speech in 2015 and 2016. Can he please explain why his Department has so far failed to publish any proposals or begin a consultation on those plans?
Mr Raab
I appreciate that the hon. Lady is eager to engage in a detailed, substantive debate on human rights. Distinguished people in the Opposition, from Lord Irvine through to the current shadow Justice Secretary, have talked about the defects in the Human Rights Act. They have made compelling points and we intend to act on them. I look forward to debating the matter with the hon. Lady in due course.
Maria Caulfield (Lewes) (Con)
12. What steps are being taken to improve safety and reduce violence at HM Prison Lewes.
Angela Crawley (Lanark and Hamilton East) (SNP)
15. When he expects the review of employment tribunal fees to be completed.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
The review will report in due course, and it will assess how effective the introduction of employment tribunal fees has been in the achievement of the original objectives.
Dawn Butler
So we still await the official report from the Government, but it is obvious that tribunal fees have affected the number of cases being brought, especially by women. In 2013 there were 18,398; in 2015 there were just 6,423. Will the Minister elaborate on those figures? Will he also elaborate on the multiple cases brought by men? Were those men from the private sector or the public sector? Were they white-collar or blue-collar workers?
Mr Raab
The assessment will look at the impact on protected characteristics, including the ones the hon. Lady mentioned. It is only fair and reasonable that those using tribunals make some contribution to the cost where they are able to. It is not right that the whole bill for employment tribunals, which is about £71 million per year, should be picked up by taxpayers, so we are looking to strike the right balance. There is, of course, a system of fee remissions to protect vulnerable workers, and we have taken steps to raise awareness of that scheme. We have also taken steps to encourage voluntary conciliation, which is a good way of settling disputes away from the tense, stressful and costly environment of a courtroom.
Angela Crawley
I received assurances from the Government that the post-implementation review of tribunal fees would be published last year. We now find ourselves six months beyond that deadline, and we are still waiting. Evidence suggests that tribunal fees do act as a barrier to justice and that they are compounding pregnancy and maternity discrimination. While we wait for the Government to get a move on, women continue to be discriminated against daily. When will the Minister finally publish the post-implementation review and scrap tribunal fees completely?
Mr Raab
The hon. Lady makes some powerful points. We are going to publish the assessment shortly. It is also right to point out, though, that we are seeking to divert people away from costly and often acrimonious tribunal hearings. Fees are a part of that, as is pushing in the direction of conciliation. Although conciliation is not compulsory, I am sure she will be reassured to know that parties agree to participate in it in 75% of cases, and satisfaction levels are very high.
Mr Jonathan Djanogly (Huntingdon) (Con)
Does the Minister agree that employment tribunal fees have played an important part in reducing the threat of litigation that hangs over businesses, particularly small businesses? Does he agree that they have also played an important part in the resurgence of our economy and job creation?
Mr Raab
My hon. Friend has a lot of experience of this issue, and he is absolutely right to look at its dual impact, particularly on small businesses. However, it is also right to say that this is not a binary, zero-sum game, and we attach huge importance to the fact that early conciliation has been used by more than 80,000 litigants in the first year, with over 80% of those participating reporting that they were satisfied with the outcome.
John Cryer (Leyton and Wanstead) (Lab)
I have met many constituents who say that they will not pursue their cases to tribunal because of the introduction of fees. Does that not suggest that the existence of the fees acts as a deterrent?
Mr Raab
The hon. Gentleman makes an important point, but we also have to factor in the proportion of those who have been diverted into conciliation. In resolving disputes like this, alternative dispute settlement will often be the best outcome for resolving the dispute, but also, in particular, for claimants who would otherwise struggle to bear the costs.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
14. When his Department plans to publish its consultation on a British Bill of Rights.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
As I have already said, we are looking to report on the review in due course. It will assess how effective the introduction of the fees has been in achieving all the different objectives we laid out.
Margaret Ferrier (Rutherglen and Hamilton West) (SNP)
I thank the Minister for his answer. However, last week the Government amended the Investigatory Powers Bill to include a duty on public authorities to have regard to the requirements of the Human Rights Act. Does this mean that the Government’s plans to repeal the Human Rights Act have now been shelved?
Mr Raab
No, we are absolutely resolute about replacing the Human Rights Act with a British Bill of Rights, and we are working on those proposals. The hon. Lady will not have to wait long to be able to engage on the substance rather than some of the scare stories flying around in the media.
Mary Glindon (North Tyneside) (Lab)
16. What assessment he has made of the potential effect of planned changes to personal injury law and whiplash claims on access to justice.
Richard Graham (Gloucester) (Con)
20. What plans he has to review sentencing guidelines related to stalking offences.
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
Sentencing guidelines are issued by the independent Sentencing Council for England and Wales. I understand that it has plans to consider the stalking guidelines next year.
Richard Graham
The Minister has read the report by my hon. Friend the Member for Cheltenham (Alex Chalk) and me on the case for extending the maximum sentences for stalking. He will also have heard Lily Allen say last week of her stalker, “You can put him behind bars but he’ll be out soon and waiting there for his victim.” What can be done to assess the case for extending the maximum sentence for a few very dangerous stalkers who severely damage the lives of their victims?
Mr Raab
I thank my hon. Friend, who makes his point in a particularly lyrical way. He knows that we are looking at a range of issues around sentencing. It is important that those are considered in the round to make sure that we better protect the public and improve reoffending levels. I read the excellent report produced by my hon. Friends on sentences for stalking, and we are giving it very serious consideration.
Mr Christopher Chope (Christchurch) (Con)
Earlier this month, my right hon. Friend the Lord Chancellor expressed his frustration at our country’s inability to prevent the entry of foreign national criminals and even terror suspects. Can he tell the House how things will change when we leave the European Union?
The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)
I think it is well known that the current test for denial of entry for people coming from the EU is that they must pose a serious, genuine and present threat, which has obviously created difficulties over the years.
Meg Hillier (Hackney South and Shoreditch) (Lab/Co-op)
Last week the Public Accounts Committee published a report on the criminal justice system. One of our conclusions was:
“The criminal justice system is not good enough at supporting victims and witnesses.”
We also cited the fact that only 55% of witnesses, many of whom are of course victims as well, say that they would go through the process again. Does the Secretary of State agree with our conclusion?
Greg Mulholland (Leeds North West) (LD)
Constituents including the families of Jamie Still and of David and Dorothy Metcalf were dismayed after the report in the Telegraph that there would be an announcement on criminal driving in the Queen’s Speech turned out not to be correct. Will the Secretary of State give a clear assurance that the review will happen quickly and that we will finally get changes to give victims of criminal driving and their families better justice?
Mr Raab
I know that the hon. Gentleman takes a close interest in this issue. Everything that we do on sentencing is informed by the need to protect the public and drive down reoffending. We will look at a range of proposals in due course with those twin objectives in mind, including the potential for prisoners to earn their release from custody. We are also looking at driving offences and, as with stalking, we will welcome any further ideas along the way.
Dawn Butler (Brent Central) (Lab)
The former Justice Secretary was warned that cuts in legal aid to domestic violence victims were “grossly unfair” and “harsh”. That is why the Court of Appeal shot them down. In response, the Government decided to do a survey, which had a very limited timeframe for being filled in. Do the Government think that that was a reasonable way to show that they take the situation seriously? Would it not be better to have a full, open, public and transparent consultation?