Private International Law (Implementation of Agreements) Bill [Lords]

Joanna Cherry Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 2nd September 2020 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to follow the Chair of the Justice Committee. I found much with which to agree in what he said and I share his regret that the Bill is necessary.

I start, however, by recognising that the Bill is necessary as a result of the United Kingdom’s withdrawal from the European Union, and I wish to make it clear that the Scottish National party supports the swift implementation of the 1996, 2005 and 2007 Hague conventions, because that will allow vital family law co-operation measures to continue after the transition period. My party is all for close and co-operative judicial relationships and we hope that, despite some worrying signs to the contrary, the United Kingdom will work with the European Union to ensure such relationships during and beyond the transition period.

However, my party’s support for the Bill does not change the fact that the Scottish National party, along with the majority of people living in Scotland, deeply regrets the withdrawal of the United Kingdom from the European Union on 31 January 2020. That happened without the consent of the people of Scotland and against the explicit wishes of our Parliament. In the EU referendum, which seems an awfully long time ago now, Scotland voted by a significant majority to remain in the European Union, and majority support for EU membership remains constant in opinion polls in Scotland. Indeed, at every electoral opportunity since the 2016 referendum, voters in Scotland have given my party and the other pro-EU parties a resounding majority. I know these facts may be unpalatable to some on the Government Benches but they are facts, and ignoring these facts—ignoring the repeatedly expressed democratic wishes of people in Scotland—has consequences. These consequences are plain to be seen in the fact that, even in the absence of a campaign, support for Scottish independence has reached 55% in the opinion polls during the current crisis. Brexit is widely recognised as a significant factor in the rise of that support, which is now at unprecedented levels.

The Government and those on their Back Benches would do well to listen to wise voices, such as that of the right hon. Member for Sutton Coldfield (Mr Mitchell), who last night told “Newsnight” that

“Brexit has made the case for the Union more difficult to push in Scotland”

and that it would be

“very difficult to resist”

a second independence referendum.

[Mr Deputy Speaker (Mr Nigel Evans)]

Order. I understand the point that the hon. and learned Lady is making, but is there any chance that she could now get to the Bill in front of us?

[Joanna Cherry]

I was about to do so, Mr Deputy Speaker, but I think it is important for the record that we restate the view, and make it crystal clear—as my constituents, and those who elected my fellow SNP Members, would wish us to do—that we are agreeing to the Bill only because we see it as inevitable to protect constituents and businesses in Scotland; but that we do not agree to the fact of Brexit, and that that has consequences, which I am sure are relevant to all discussions in this Parliament going forward—at least from the point of view of Scottish Members of Parliament.

Returning to the specific terms of the Bill, we accept the need to make preparations for the circumstances that will arise as a result of the end of the transition period. As others have said, although international private law is rather dry—as a student, I regarded it with dread—nevertheless it is really important to our constituents, and particularly important in the field of family law, but also really important for commerce and business.

As an aside, I was pleased to see that during the Bill’s passage through the Lords, the UK Government registered their intent to ratify and implement the 2000 Hague convention on the international protection of adults. That has already been done in Scotland, but I am pleased to see that it will now happen in England and Wales, and that there will be an appropriate consultation with the Northern Ireland Executive.

Although the Bill’s introduction has been triggered by the UK leaving the EU, there are aspects of it that go beyond Brexit. I think the Bill—certainly clause 2—was very much about the future strategy for international relations in the area of private international law, about which the Lord Chancellor spoke. I very much hope that for so long as Scotland remains part of the United Kingdom and, indeed, afterwards, when it becomes an independent nation, the strategy of the Government will be based on a commitment to international co-operation on private international law, including multinational agreements, and not just limited to the European Union. As others have said, these agreements are important because they allow and support the legal services sector in the United Kingdom, including in the separate jurisdiction of Scotland, to participate in private international law developments internationally. The commitment to international co-operation on international private law is in line with my party’s policy. We would like to see more international co-operation, not less, and that is certainly the strategy that an independent Scotland will pursue in the years to come.

I welcome the fact that this Bill was drafted to recognise that Scotland is a separate legal jurisdiction and to make provision accordingly. The Lord Chancellor knows that, in another area, I have had occasion to write to him recently to remind him of the fact that the Scottish system of civil justice is indeed completely independent from that of England. That is not just because of devolution, which, of course, is a fairly modern event. It is important to understand that the civil justice system under the Scotland Act 1998 is the preserve of the Scottish Parliament, but that separateness is also guaranteed by the Treaty of Union—in particular by article 19 of the Treaty of Union.

Although I am afraid, as the Lord Chancellor knows, that in the field of judicial review there may be a threat of an excursion into Scottish territory, I am very pleased to see that, in this Bill, that is not the case. None the less, it is worth reminding ourselves that it has often been said that some parts of the Treaty of Union, such as the preservation of Scotland’s Church and also Scotland’s legal system, are so fundamental that this Parliament does not have the power to legislate in contravention of them. I am aware that that point has never been definitively tested in a court of law, but were there to be an excursion into Scots law in the field of judicial review, that might be the opportunity to test that question, and I think the outcome of any such litigation could have interesting knock-on effects. However, as I say, it is not a bridge that we need to cross in relation to this Bill. I see the Lord Chancellor shaking his head with something approaching belief and I am sure that he will be aware that any interference in Scotland’s independent legal system would be met with some resistance, not just from adherence to the cause of Scottish independence, but from the Scottish legal profession. The two things are not always the same thing, although they are increasingly becoming the same thing.

I do not mean to jest here because I am grateful to the Government for having drafted this Bill in a way that recognises that, under section 126(4)(a) of the Scotland Act, private international law is part of Scots private law and that includes matters such as choice of law that this Bill covers, choice of jurisdiction, recognition of judgments and enforcement of decisions. There is also the convention under section 28(8) of the Scotland Act—the Sewel convention—that this Parliament would normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament without the consent of the Scottish Parliament. I know that that has been breached on a number of occasions recently, but thankfully not in a relation to this Bill. Under the original clause 2 of this Bill, Scottish Ministers were given certain powers in relation to delegated legislation because, whereas negotiating and joining international agreements on private international law is reserved, implementing them in domestic law is devolved. As the Lord Chancellor will be aware, the Scottish Government have considered carefully the provisions of the Bill as originally laid insofar as they legislated for Scotland and legislative consent was sought from the Scottish Parliament and granted on 17 June. That was very much because the view was taken that, because the provisions of the Bill cover Scotland as a separate jurisdiction, Scotland would be placed in a prejudicial position if allowance was not made, and that would adversely impact on Scottish citizens and businesses. I think it is fair to say that my colleagues in the Scottish Government wanted to provide reassurance to those affected by cross-border family support and custody mechanisms, as other Members have adverted to.

Finally, I come to the removal of clause 2 in the other place. I appreciate that if clause 2 is not reinserted into the Bill, it will mean that for each private international law agreement the UK enters into in future, primary legislation will be required to implement it domestically. A lack of clause 2 would not mean that the UK did not have the ability to enter into these agreements, but it would mean that they would have to be brought before this House and implemented into law by way of primary legislation. I note that the Lord Chancellor intends to reinstate clause 2, but I say to him, having read the debate in the Lords, that legitimate concerns about parliamentary scrutiny, or the lack thereof, in relation to delegated legislation were raised.

Let me pick up on what other hon. Members have said. If it is the case, as it appears to me, that the Government’s clear policy is to rejoin the Lugano convention—obviously, we would need to do that quickly—I suggest to the Lord Chancellor, and I am indebted to the Law Society of Scotland for this suggestion, that one way around this would be to reintroduce clause 2 on the basis that it focuses only on the implementation of the Lugano convention. I believe that was suggested by the hon. Member for Huntingdon (Mr Djanogly). If the Government are insistent on bringing it back on a general basis, might I suggest attaching a sunset clause to it, perhaps for a year or so?

More broadly, the Government need to establish a clear and comprehensive approach to ratifying treatments, one that includes an appropriate role for this Parliament in providing scrutiny, because when the transition period ends, the UK will negotiate and sign treaties on a much larger scale than when we were members of the EU. Although the negotiating and signing of treaties is a function of government, exercised through prerogative powers, the increasing complexity of modern treaty obligations and the way they affect individual rights creates a need to ensure that they are adequately scrutinised here. As others have mentioned, it is particularly important that that happens when criminal offences are being created, or indeed amended or extended, because that has particular implications for individual rights. Let me finish by saying that if the Government do not find a way to enhance parliamentary scrutiny of these matters, the promise that leaving the EU meant taking back control will be made a mockery of.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.

As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.

As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.

How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.

It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.

Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.

As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.

The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.

Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.

Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.

The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.

[Joanna Cherry]

Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.

[Alex Chalk]

When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 14th July 2020 Commons Chamber

[Alex Chalk]

I thank the hon. Lady for her question. Of course, it is axiomatic that membership of that committee, which has yet to be settled, must include those who have the wherewithal to comment on precisely the points she indicated, including the impact upon Scotland. I would want to see that being the case and, indeed, in respect of the other jurisdictions as well. We have to make sure that, as we go forward, we respect and recognise the differences that exist in the United Kingdom in this most important regard.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Scottish Government have plans to pass a new human rights Act incorporating economic, social, cultural and environmental rights in the devolved areas. Does the Minister agree that it is unfortunate that, at a time when the Scottish Government are working to expand the rights of people living in Scotland, at least in respect of devolved areas, the UK Government are perceived as threatening to diminish human rights protections in respect of reserved matters and across the United Kingdom?

[Alex Chalk]

Can I thank the hon. and learned Lady for her question? She will, I hope, acknowledge that perceptions are not always borne out by reality. The United Kingdom Government remain committed to the European convention on human rights, and nothing that will take place by way of an update or any proposals that emerge will threaten that fundamental point. We are a nation of laws. We are committed to upholding human rights. That is the way it is going to stay.

[Joanna Cherry]

I thank the Minister for his answer and I hear clearly his assurance that the United Kingdom remains committed to the ECHR, but of course it is the Human Rights Act that gives people living in the United Kingdom the ability to avail themselves of the rights protected by the convention in the United Kingdom’s domestic courts. If, in updating the Human Rights Act, the Government have no intention of abrogating the domestic law that gives effect to the ECHR, why are they allowing the perception that they might do so to undermine the chances of securing an agreement with the European Union on future co-operation on law enforcement and judicial co-operation on criminal matters?

[Alex Chalk]

The hon. and learned Lady is right that, of course, the Human Rights Act does provide the power for individuals to assert and invoke those rights, but if we are committed to the convention, we are also committed to article 13 of the convention, which is the right to an effective remedy. The courts play an important role in allowing citizens to invoke and assert their convention rights. That will continue.

Lammy Review

Joanna Cherry Excerpts

Tuesday 30th June 2020 Commons Chamber

[Alex Chalk]

I am very grateful to the Chair of the Select Committee, and I recall that in March 2019 his Committee conducted an inquiry into this. One of the most important themes that came from the Lammy review was the adoption of the principle “Explain or change”—in other words, explain why there are these discrepancies, or do something about it, to put it in plain English. One of the key tools to enable that change to happen is publishing data. Data is one of the most powerful tools in all this. One of the things that encourages me is that, because we have now published the data on ethnicity facts and figures, we can pick a certain minority, see the data on homelessness, for example, or on the kind of accommodation people are in, and put that alongside criminal justice data to see how the outcomes are going.

[Joanna Cherry (Edinburgh South West) (SNP) [V]]

If the words “black lives matter” are to have any real meaning, we must have honest appraisals of whether or not the Government have implemented the recommendations of the many reports that have already explored racial discrimination and disparities in the United Kingdom. There is no point in commissioning yet further reviews if the Government have not adequately addressed the recommendations in the reviews that have already been completed. In common usage, the word “implementing” in relation to a recommendation means giving it effect; it does not mean looking at it and then discarding it as inconvenient, or getting rid of it because it is too much like effecting real change.

It is important that we get to the bottom of what is going on here, because the Government’s curious use of language is not confined to this report. Last week, the Home Secretary told us she was accepting the recommendations of the “Windrush Lessons Learned Review” in full and that she would be coming back to the House before recess to update us on how they would be implemented. But when she was pressed on the recommendation that requires a review of the hostile environment policy, she refused repeatedly to say that such a review would be carried out.

So can the Minister, for whom I have the greatest respect, clarify the position for us? Have the Government invented a new meaning for the word “implemented,” or does it still mean “giving effect to recommendations,” and will he be crystal-clear about which recommendations of the Lammy review are to be given effect, and when?

[Alex Chalk]

I am grateful to the hon. and learned Lady, for whom I also have a great deal of respect. In December 2017, the Government response to the Lammy review said, at paragraph 8:

“We have…sought to mirror the pragmatic, ‘doable’ tone of the Review by setting out how we will address the underlying issues behind recommendations where there are real constraints that prevent us from following it to the letter.”

If the statement was in isolation—for example, “Have you implemented the change in the name of the Youth Justice Board?”—then, yes, the hon. and learned Lady would have a point, but what was made clear throughout was that the Government were determined to implement the policy objective even if doing things to the absolute letter would not necessarily be the best way of achieving that. I am proud of the fact that we have gone beyond a lot of what was stated in the Lammy review, so we have more data, more transparency, and a better way of drilling down on manifest injustices. Of course there is more to do, and this report has set us on a much better path.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 9th June 2020 Commons Chamber

[Robert Buckland]

The right hon. Gentleman will be glad to know that I continue to look at that on a daily basis. The overall case load in the Crown Court is approaching just over 41,000. Before the crisis it was 39,000, so there has been a slight increase. Within that case load, the courts have managed a lot of cases that can be dealt with administratively and by way of plea, but that does leave a cohort of trials to be dealt with. Normally, 200 jury trials a week will be heard in England and Wales, and we are still dealing with a very small number. That will clearly tell him the scale of the challenge, but I can say to him that both the Lord Chief Justice and I are working together closely in order to scale up capacity, to look at court hours and the way the courts sit so that we can accommodate jurors and staff, and to do whatever it takes not just to manage that case load number but to bring it down as we go through the year.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Lord Chancellor has a strong record of defending judicial independence, and I congratulate him on that. Does he agree that it is equally important that those in Government do not seek to influence the police or the Crown Prosecution Service in the exercise of their duties? Can he confirm that that is why he, unlike other members of the Government, refrained from tweeting in support of Dominic Cummings when there was a live issue as to whether Mr Cummings had breached the lockdown regulations and guidance?

[Robert Buckland]

The hon. and learned Lady will know that I refrain, in correspondence and, indeed, in statements or questions in the House, from talking about individual cases. I remind her and the House that, as Lord Chancellor, I will always act in a way that is consistent with the rule of law. The independence of the police and prosecutorial authorities has to be paramount, and that is something that I will absolutely uphold. My constitutional duties come first, and everybody within Government knows that full well.

[Joanna Cherry]

Perhaps the Lord Chancellor could share those thoughts with the Attorney General.

Upholding human rights is also an important part of the Lord Chancellor’s Department’s priorities. When the Minister for the Cabinet Office gave evidence to the Committee on the Future Relationship with the European Union recently, he made it clear that the Government still intended to amend the Human Rights Act 1998. Can the Lord Chancellor reassure us that any such amendments will not seek to abrogate domestic law giving effect to the European convention on human rights?

[Robert Buckland]

I can tell the hon. and learned Lady that, as part of our manifesto commitment, we have pledged to update the Human Rights Act, which is now 20 years old in terms of its operation. That is only the right and proper thing to do. I can absolutely assure her that our membership of the convention is beyond any doubt or peradventure. That will very much remain the case as we go through the negotiations with our friends in the European Union on the future relationship and, indeed, domestically as well. We are working on an important independent review into the operation of the Human Rights Act, and I will update the House when further details are available.

Counter-Terrorism and Sentencing Bill

Joanna Cherry Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 9th June 2020 Commons Chamber

[Robert Buckland]

I absolutely accept and understand the motivation behind my hon. Friend’s intervention, and he makes such a recommendation not just as Chair of the Select Committee, but as a guardian of the principles of the rule of law, which, after all, is what we, as a nation, are trying to defend against those who would kill, shoot and bomb their way into power and influence. He can be reassured that this—if you like—reversion to the previous standard of proof is all about making sure that we have as agile a tool as possible, bearing in mind the rapidly changing nature of the terrorist threat that we face. It is vital that we make sure that, when applications for TPIMs are made, they can be done not only in such a way that there is clearly an evidential basis and those grounds exist, but in a way that means they can be effective and as rapidly implemented as possible. The focus of the TPIM and the number of people on it will change, adapt and evolve according to the constant and the changing nature of the threats.

[Joanna Cherry (Edinburgh South West) (SNP)]

I thank the right hon. and learned Gentleman for giving way. The point made by the Chair of the Justice Committee is very well made. Not only has the current independent reviewer of terrorism, Jonathan Hall QC, not recommended the change, but he has specifically questioned the basis for the change. So again, is the Lord Chancellor able to clearly articulate for us why this change in the burden of proof is necessary?

[Robert Buckland]

I am grateful to the hon. and learned Lady for her question. Indeed, in the lengthy answers that I am giving, I am trying to do just that. What I am trying to explain is—I know that she knows this—that the TPIM mechanism is not something that is entered upon lightly. It involves a high degree of resource and a high intensity of resource management. It is a self-evident truth that the resources of the state, however large they may be, are not infinite and therefore choices and priorities have to be allocated. What I can assure the House of is that of course every time we assess that the grounds are met and that there is a risk, we will act. That is what our security services do, day in, day out, for us. What I am saying is that the change in the threshold creates that greater agility. I accept that it will be a lower standard, yes, but the reason for that is to allow for greater flexibility when our operational partners come to apply them.    



I was talking about the importance of TPIMs’ use being proportionate. I believe that the annual review of TPIMs, which is going to be part of this process to qualify the question about their indefinite duration, strikes the right balance between the need for vigilance and control against the need for those basic civil liberties that we all guard jealously to be maintained. Let us not forget that where it is no longer necessary or proportionate to extend a particular TPIM for the purposes of public protection, that TPIM will be revoked. That check and balance is very much at the heart of the regimen that we are proposing in the Bill.

The Bill also amends legislation governing serious crime prevention orders. Those are civil orders imposed by the courts that protect the public by preventing, restricting or disrupting an individual’s involvement in serious crime, which of course includes terrorism. The Bill supports the use of these orders in terrorist-related cases by allowing counter-terrorism policing to make a direct application to the High Court for a serious crime prevention order. We are therefore streamlining that process. The independent reviewer of terrorism legislation has noted that these mechanisms are at the moment an under-utilised tool in terrorism cases, and I believe that by streamlining the process we will see a greater reliance upon them.

We are also adding the offences of breaching a TPIM notice and breaching a temporary exclusion order to the list of relevant terrorism offences that can trigger the registered terrorist offender notification requirements. Again, the independent reviewer has publicly confirmed his support for that change. The regime requires individuals aged 16 or over who have been sentenced to 12 months or more in custody for a relevant terrorism offence to provide certain information about changes in their circumstances, such as their address, to the police and to notify them of any foreign travel plans. Together, these changes strengthen our ability to manage the risk posed by those of terrorism concern in our community, including those who have been released from prison without a period on licence.

The Bill also reforms how we deal with terrorist offenders under the age of 18. We recognise, of course, that there is a separate sentencing framework for that category of offenders, and that it has distinct purposes and aims that differ from those relating to adult offenders. We have carefully considered which measures it would be appropriate to apply to under 18-year-olds in developing this proposed legislation. Although we remain firm in our aim to ensure that custody should be used only where absolutely necessary, it is a sad and inescapable fact that some young people are susceptible to radicalisation or to the adoption of extremist views, and that among those, there are a few who pose a very serious threat to the public.

The Bill will therefore ensure that the courts have the right range of tools at their disposal to deal with those under the age of 18 who commit serious terrorist or terrorist-related offences. We will do that by introducing a youth equivalent to the special sentence for offenders of particular concern. This will mean that, if convicted of terrorist offences serious enough to warrant custody, these offenders will serve a fixed period on licence once they have been released into the community. This will ensure that they receive an appropriate level of supervision. We are also replicating the changes to the extended determinate sentence to ensure better public protection from young terrorist offenders who have been assessed as dangerous. This removes Parole Board consideration of the two-thirds point for the most serious terrorism offences, and in the interests of public protection, it gives the courts the option to apply an extension period of up to 10 years on licence. I accept that this is an exceptional series of measures, but we are dealing with an exceptional type of offending.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

We in the Scottish National party take our duty to protect the public from all serious crime, including terrorism, very seriously, as our record in government in Scotland shows. We have a number of reservations about the Bill, which I shall outline, but like the official Opposition we do not intend to divide the House. We intend to take a constructive but critical approach. To that end, we will play a full part in the Bill Committee.

I thank the Lord Chancellor and his colleagues for the engagement that we have had to date on the Bill. I look forward to further discussions about the Scottish National party’s and the Scottish Government’s concerns. I also thank the right hon. Member for Tottenham (Mr Lammy) and the hon. Member for Torfaen (Nick Thomas-Symonds) for the constructive discussions that we have had prior to Second Reading. It is fair to say that the Scottish National party shares many of the official Opposition’s concerns about the Bill. We note that those concerns relate to matters about which the Independent Reviewer of Terrorism Legislation has also expressed reservations. That is to say, they are responsible concerns.

No discussion about terrorist legislation in this House should take place without parliamentarians taking the opportunity to extend their deepest sympathies to all those who have suffered bereavement or injury as a result of terrorist acts. I look back to the past, particularly in Northern Ireland and indeed the whole island of Ireland in that respect. On behalf of the SNP, I also pay tribute to the brave members of our police and security services, first responders, those in the Prison Service, probation officers and those who work in rehabilitation. All those people have to deal with the consequences of terrorism. We have heard some moving tributes to them. I also pay tribute to the brave bystanders who have intervened to help others in the immediate aftermath of terrorist attacks.

Many of the provisions in the Bill relate to sentencing, which is of course a devolved matter. Discussions are ongoing between my colleague Humza Yousaf, Scotland’s Justice Secretary, and the Lord Chancellor. Of course, there will need to be a legislative consent motion. I will outline the concerns that I share with the Scottish Government and my colleagues in the Scottish Government about the sentencing aspects of the Bill, as well as the use of polygraphs, the changes to TPIMs and the provisions regarding the review of the Prevent strategy. I want to make it clear that I do so from this viewpoint: it is the Scottish National party’s aim that our communities in Scotland are inclusive, empowered and resilient, so they can resist those sowing the seeds of division that can lead to radicalisation and terrorism.

The Bill has some far-reaching changes in it, with implications for human rights as well as policy, and the Scottish Government have already expressed their concerns directly with the Lord Chancellor, as I have done with his junior colleagues. I know that the UK Government, in relation to this Bill at least, realise that they need to work closely with Members of all parties and with the devolved Administrations, because that is what is necessary to ensure effective counter-terrorism measures across the United Kingdom and in Northern Ireland. I hope that this consideration will be at the forefront of the Minister’s mind as the Bill pilots its way through the House.

On the issue of sentencing, I am pleased that the UK Government are following the Scottish Government’s lead in ending automatic early release for the most serious offenders. Some time has now passed since the Scottish Government introduced a change to the effect that no long-term prisoner—four years or over—would be eligible for automatic early release after two thirds of their sentence. However, I am far from convinced—as I know others are far from convinced—that simply locking up terrorists for longer and then providing longer supervision on release is going to do much to deradicalise terrorist offenders.

The Bill will require the courts to ensure that certain terrorist offenders receive a custodial sentence of a certain minimum length and that a minimum length of supervision applies on release. In that respect it is a form of minimum mandatory sentencing, which is against the general approach in Scotland. However, it is not completely new to the justice system in Scotland, and that is why discussions are ongoing with my colleague, the Scottish Justice Secretary.

Sentencing is only a small part of the answer to terrorism, however. What happens during the sentence also matters, and, to date, deradicalisation and disengagement programmes have been largely underfunded and poorly executed. That is not my view; that is the view of Nazir Afzal, the former chief Crown prosecutor for the north-west of England. He is an experienced lawyer and a prosecutor worth listening to. He says that this has happened as a direct consequence of the decision by successive Conservative Governments to cut funding to probation and other rehabilitation programmes. The costs of extensive post-release surveillance far outweigh the costs of adequate funding for preventive measures and deradicalisation. I wonder whether the Lord Chancellor agrees with me and Mr Afzal on that point, and whether he is in a position to assure the House that sufficient funds and resources will be made available to deal with preventive and deradicalisation programmes in prison.

Can the Lord Chancellor also assure me that the Bill will not turn out to be counterproductive by leading to less parole, less offender management and less incentive to behave well during a sentence and to attempt deradicalisation? In this respect it will be interesting to hear what the professionals who work in the area of offender management and parole have to say about the Bill, and I look forward to the Bill Committee’s evidence sessions. I am pleased that will there be more than one of those—

[The Parliamentary Under-Secretary of State for Justice (Chris Philp)]

Three.

[Joanna Cherry]

Three? Excellent.

The hon. Member for Bromley and Chislehurst (Sir Robert Neill) raised the issue of polygraphs. He will be aware that in Scotland’s justice system, polygraph testing is not used as a mechanism to monitor compliance with licence conditions or any kind of orders. Indeed, it is not used at all. The reason we have chosen not to use it is the lack of evidence of its effectiveness. If the provisions of the Bill were to apply in Scotland, that would require a significant shift in policy and practice and could also have significant implications for investment in infrastructure. In Scotland, we already have mechanisms in place to monitor compliance with licence conditions and conditions associated with statutory justice orders. These include supervision by justice social workers and the use of electronic monitoring for high-risk offenders. There is a multi-agency public protection arrangement—MAPPA. Under that procedure, those assessed as high or very high risk and who require multi-agency management are subject to a regular review. In Scotland, individuals convicted of terrorism-related offences can be managed under that MAPPA approach, and there are indeed a small number of cases that have been managed in this

More generally on the issue of polygraph testing, I note, as has already been said, that the independent reviewer of terrorism legislation expressed some concerns about the lack of pilots and emphasised that there would therefore be a very strong case for very thorough post-legislative scrutiny of the measures. I look forward to hearing what the Minister summing up has to say in response to that point.

On TPIMs, much of what I have to say has already been canvassed. Clearly, the amendments would: reverse the changes to the burden of proof, lowering the burden of proof; reverse changes to the curfew provisions to allow for what is effectively home detention; and allow us to make the orders potentially indefinite. I am not convinced that the changes are necessary and nor are my colleagues in the Scottish Government. We are fortified in that view by the views of the independent reviewer of terrorism legislation, who is also unconvinced of the necessity of the changes. To be frank, I have heard nothing so far this afternoon to convince me that our reservations are wrong. Those reservations are really important because of the human rights implications, the lack of safeguards built into the Bill, and the lack of any review mechanism.

I am not going to go through what Jonathan Hall, QC said in his two very detailed notes, but he has tackled, in some detail, both the reduction of the standard of proof and making the orders potentially indefinite. He has been very clear that he is not convinced of the case for change, so my questions for the Minister are these. Can we hear more clearly why? Can we see an example of what justifies both the reduction in the burden of proof and the need for the orders to be without time limit? Can we hear why, in the face of such potentially draconian powers, there are no safeguards in the Bill? Would the Government be prepared to consider an oversight mechanism or a review mechanism?

Finally, on Prevent, it is important to remember that the delivery of the Prevent strategy in Scotland is devolved and that while national security is referred to the UK Government, the way the Scottish Government deliver the Prevent strategy in Scotland reflects Scottish differences and is unique to the challenge faced by Scottish communities. I think it is fair to say that the delivery of the Prevent strategy in Scotland has not encountered the same community resistance and community impacts as it has south of the border. Because of the problems encountered in England, the Scottish National party supported the call for a review of the Prevent strategy, but we also shared the very widespread concerns about the Government’s initial choice of reviewer. We believe now that it is very important that a new reviewer is found quickly, and that lessons about impartiality and the important appearance of impartiality are learned from the debacle over the previous putative appointments, so that the review can be seen as genuine and robust. We are a little concerned that the time limit for the review has been removed. I heard what the Lord Chancellor had to say about that, but it is very important that the removal of the time limit does not simply become an excuse to kick this into the long grass. That is the final point on which I seek reassurance from the Minister in his summing up.

Domestic Abuse Bill

Joanna Cherry Excerpts

2nd reading & 2nd reading: House of Commons
Tuesday 28th April 2020 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP) [V]]

Thank you, Mr Deputy Speaker. It is a pleasure to follow the right hon. Member for Maidenhead (Mrs May). Whatever our political differences, I know that this is an area where she cares passionately and has made a difference. Before I address the Bill, I would like to welcome to his place the hon. Member for Torfaen (Nick Thomas-Symonds). I congratulate him on his appointment as shadow Home Secretary, and I pay tribute to his predecessor, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott).

With some important caveats, the Scottish National party welcomes this Bill. Most of its provisions will apply only to England and Wales; domestic abuse is a devolved matter, and Scotland passed its own consolidating legislation two years ago. The UK Government should look to the Scottish Government’s groundbreaking Equally Safe strategy, which has been hailed as one of the best strategies in Europe for tackling violence against women.

In the current covid crisis, there is ample evidence that social isolation is adding pressure to those who live in abusive domestic situations. There may be women and children watching this debate at home today who are in that position, and the Scottish Government have moved to reassure anyone experiencing domestic abuse that support is available to them during these difficult times. Scotland’s 24-hour domestic abuse and forced marriage helpline is available on 0800 027 1234, and I know that similar help is available in England, Wales and Northern Ireland. Of course, if anyone feels threatened or in fear of harm, they should call the police.

There is much to welcome in this Bill. The inclusion of non-physical abuse in the statutory definition of “domestic abuse”, the inclusion of children aged 16 and 17, and the appointment of the domestic abuse commissioner are all to be applauded. Like others, I pay tribute to the work she has done already. However, I regret that this Bill is a lost opportunity to tackle a number of important matters—these are reserved matters and therefore can be addressed only by the UK Government. For example, I would like the Minister, in her summing up, to explain why the Government have failed to take the opportunity to ensure that this Bill helps all women in the UK, regardless of their immigration status. I would also like her to address why, despite years of lobbying from the SNP, the Government have not used this Bill to address two important matters relating to the payment of universal credit. This Bill is a missed opportunity to introduce a system whereby UC is paid separately by default. The current system of single-household payments makes it even easier for abusers to perpetrate economic abuse. The Scottish Government have legislated to introduce separate payments, but are dependent on the Department for Work and Pensions’ information technology infrastructure to make this happen. I know that the Minister is likely to respond by saying that victims of domestic abuse can apply for separate payments, but she will be well aware that a survey carried out by Women’s Aid some time ago said that 85% of domestic abuse survivors would not dare to apply as an exceptional measure, because it would attract further abuse. That is why this needs to happen automatically. This Bill was the perfect opportunity to change the system, so why not just do it?

Likewise, when domestic abuse survivors leave their partner and apply for UC, the five-week wait leaves many in abject poverty, at a time when they are attempting to rebuild their lives and replace essential belongings. SNP MPs have repeatedly explained to the UK Government why it is vital that UC advances are paid as grants to survivors, yet, once more, the opportunity to achieve that, which this Bill afforded, has not been taken. I do not understand why, and I await the Minister’s explanation with interest.

I will devote the rest of my remarks to the provisions omitted from this Bill, which mean that it will continue to be impossible for the United Kingdom to ratify the Istanbul convention. In 2017, Dr Eilidh Whiteford, then the SNP Member of Parliament for Banff and Buchan, led a successful campaign to pass a law that required the UK Government to ratify the Istanbul convention. That was the first time an SNP MP had managed to get a private Member’s Bill into law, so it is particularly frustrating that three years later the United Kingdom has yet to ratify the Istanbul convention. It is also rather shameful that the UK is one of only six states in Europe to have failed to ratify it.

The Istanbul convention is based on the understanding that violence against women is committed against women because they are women. It makes clear that it is the state’s obligation to address fully violence against women in all its forms, and that the state must introduce measures to protect all women from violence, to protect all victims, and to prosecute perpetrators. Parties to the convention are encouraged to apply the protective framework that it creates to men who may also be exposed to violence in the domestic unit. However, it should not be overlooked that the majority of victims of domestic violence and abuse are women, and that domestic abuse is perpetrated against women as part of a wider pattern of discrimination and inequality based on their sex.

The Scottish Parliament has passed all the measures that are necessary and within its competence to enable ratification of the convention to proceed, but the UK Government are holding things up. The Bill before us introduces certain provisions regarding extraterritorial effect, which are necessary for ratification, but it falls short in the key area of provision of services to migrant women.

As others have said, some migrant women find it impossible to access emergency protection because of the no recourse to public funds condition. Two weeks ago, the Home Affairs Committee took evidence about that condition from the Victims Commissioner, the domestic abuse commissioner designate, and the Children’s Commissioner, all of whom were clear that the no recourse to public funds provision should be scrapped, not just during this crisis, but for good. The cross-party joint parliamentary scrutiny committee that preceded the first iteration of this Bill also recommended that the Bill should include proper protections for migrant women, yet all those recommendations have been ignored. I would like an explanation from the Minister of why they have been ignored.

I have no doubt that amendments will be tabled in Committee to rectify those omissions and enable all migrant women to access vital protections from abuse. Will the Minister accept those amendments? Will she look favourably on amendments that address the payment of universal credit, which I mentioned earlier? I look forward to hearing about that point later this afternoon, because if the UK Government do not address the matters I have raised, protection for victims of domestic abuse will not be universal. Gaps in provision will remain, particularly for migrant women, and the UK Government will continue to be unable to ratify the Istanbul convention.

[Mr Deputy Speaker (Mr Nigel Evans)]

We are now back to five-minute contributions for the rest of the debate.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 25th February 2020 Commons Chamber

[Robert Buckland]

As well as introducing our important domestic abuse Bill, we are already committing more resources to rape crisis centres. For example, rape and sexual abuse support services have had their funding increased to £32 million over the next three years—an increase of over 50%—which will provide free advice, support and counselling at 94 rape support centres, which is more than ever before. That is encouraging progress.

[Joanna Cherry (Edinburgh South West) (SNP)]

On International Women’s Day last year, Ireland became the 34th country to ratify the Istanbul convention, but unfortunately the United Kingdom is one of only six countries yet to do so. Can we take this as an indication of where the UK intends to position itself on the world stage in terms of rights and protections of citizens post-Brexit?

[Robert Buckland]

I can reassure the hon. and learned Lady that not only is the United Kingdom committed both internationally and domestically through legislation—I know that she actively supported that back in 2017—to implement the convention, but in many respects we are ahead of the obligations that the convention places upon us, and we are among the leaders of the world in our support and in our approach to violence against women and girls and the victims of sexual abuse. We should not be complacent about that, but it is worth reminding ourselves of how far we have come.

[Joanna Cherry]

That is all very well, but the right hon. and learned Gentleman’s own Government’s report identified two major respects in which UK law has yet to comply sufficiently to make us able to ratify the convention. The legislation to which he refers, introduced by my former colleague Dr Eilidh Whiteford, was introduced three years ago, so what we need to know today is what is stopping the UK Government following the lead of the Scots and the Irish. Is it by any chance the requirement to support migrant women experiencing domestic abuse, who often find it impossible to access emergency protection because of the no recourse to public funds condition? His own Government identified that as one of the two major problems. What will be done about that, and when?

[Robert Buckland]

The hon. and learned Lady knows that in response to the Joint Committee on the Draft Domestic Abuse Bill the Government are taking careful account of the evidence that has been provided on that specific issue. In previous annual reports we have indicated compliance with the articles, but we have to make sure that the concerns raised in the Joint Committee are properly addressed. We will no doubt have an opportunity with the forthcoming Bill to debate these issues, and I look forward to engaging with the hon. and learned Lady on the subject.

Streatham Incident

Joanna Cherry Excerpts

Monday 3rd February 2020 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Select Committee on Justice. It would perhaps be wrong of me to go into specific detail as to the regimen that applied in prison to this offender. I would make the general observation that the terrorist cohort is complex and difficult to assess, and if there is not engagement by individuals with the programmes on offer, the assessment of risk becomes a much more complicated exercise. I simply say that bearing in mind the exceptional nature of the terrorist cohort, exceptional approaches are needed.

[Joanna Cherry (Edinburgh South West) (SNP)]

May I start by extending my sympathies and those of the Scottish National party to those injured and terrorised by yesterday’s events, and by praising the security and emergency services? I am pleased that the UK Government are following the Scottish Government’s lead in ending automatic early release for the most serious offenders. The Lord Chancellor has said that he intends to introduce emergency legislation, making retrospective provision in relation to those sentenced before the law was changed. Will he assure me that the usual legal difficulties with retrospective legislation have been addressed to his satisfaction?

Sentencing is only a small part of the answer to terrorism, and what happens during the sentence is what matters. To date, deradicalisation and disengagement programmes have been largely “unfunded and poorly executed”. Those are not my views, but the views of Nazir Afzal, the former chief Crown prosecutor for the north-west of England, an experienced lawyer and a prosecutor worth listening to. He says that that has happened as a direct consequence of the decision by successive Tory Governments to cut funding to probation and other rehabilitation programmes. Of course, the costs of the sort of post-release police surveillance that we saw yesterday far outweigh the costs of adequate funding for preventive measures and deradicalisation. Does the Lord Chancellor agree with me and Nazir Afzal on that? Will he assure the House that in future sufficient funds and resources will be made available to deal with preventive and deradicalisation programmes in prison?

Finally, it was reported earlier today that an anonymous No. 10 source told Sky News that the system for dealing with terrorism has significant problems because of

“the shocking influence of lawyers on policy”.

I imagine that the Lord Chancellor does not share that view—[Laughter.] This is important. Will he join me in condemning those sorts of anonymous briefings? Does he agree that there is plenty of room to introduce robust anti-terrorism policies that are rule-of-law compliant?

[Robert Buckland]

I am grateful to the hon. and learned Lady for her remarks about the solidarity that we have across these islands with regard to terrorism.

Let me deal with her last point first. It is important to remember that we in this country stand for the rule of law and due process. That is what marks us out as different from those who rely on the bullet and the bomb—those who use indiscriminate and arbitrary means and methods to impose their will on us. If we stand for nothing else, we have to stand for the rule of law. That makes us better than them, it makes us different and it means that we have something worth defending. I hope that answers the hon. and learned Lady’s latter question.

On the first issue that the hon. and learned Lady raised, as I said, this is an exceptional situation. The issue of retrospective effect is of course a key factor. The important point is that we are talking about the administration of a sentence—the way it is dealt with, as opposed to its length or type. For that reason, it is entirely appropriate to look at the administration of a sentence and I would regard that as a reasonable approach.

The hon. and learned Lady asked about resources. I am happy to tell her that in the past several years, counter-terrorism funding has increased year on year. I repeat the point that I made to the hon. Member for Leeds East (Richard Burgon): resources will never get in the way of our dealing properly and robustly with those who pose a threat to us. The way in which we deal with terrorism continues to evolve, and programmes change and adapt according to the knowledge that we accrue. I will not pretend that we are in a state of grace when it comes to these things, because we are still learning, but make no mistake about it: this country is a world leader and many other states look to us as a beacon because of the way we deal with counter-terrorism and the particular threat that it poses.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 8th October 2019 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I thank the Lord Chancellor for speaking out in favour of the independence of the judiciary.

Lord Hope of Craighead, a former Deputy President of the Supreme Court and Lord President of the Court of Session, has pointed out that

“The Supreme Court justices were careful to explain in their judgment”

on the Prorogation case

“that they were not pronouncing on political questions. The issues with which they were dealing…were issues of law.”

Will the Lord Chancellor explain that to those in his party demanding a politicised appointment process for the judiciary?

[Robert Buckland]

I am grateful to the hon. and learned Lady. I treat the remarks of the noble Lord Hope with extreme gravity, bearing in mind his experience and knowledge. It always bears repeating that the judiciary do not have political motivations, and that case was no exception. Frankly, I think the matter needs no further debate. If we ended up with an American-style approval system, we would all be the poorer for it.

[Joanna Cherry]

Yesterday a Scottish court recorded the Prime Minister’s unequivocal promise to comply with his statutory duties under the Benn Act. The judge, Lord Pentland, said:

“it would be destructive of one of the core principles of constitutional propriety and of the mutual trust that is the bedrock of the relationship between the court and the crown for the prime minister or the government to renege on what they have assured the court that the prime minister intends to do”.

Can the Lord Chancellor assure us that he will be impressing on the Prime Minister the grave consequences of ignoring that warning from a senior member of the Scottish judiciary?

[Robert Buckland]

I read the transcript of what Lord Pentland said with great interest. Of course, that matter is subject to appeal, and it would be wrong of me to speak about it in detail, but those comments are noted.

Procedure for Appointing Judges

Joanna Cherry Excerpts

Tuesday 8th October 2019 Westminster Hall

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mr Sharma. I congratulate my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this important debate. What a pleasure it is to speak after the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill).

I will begin by declaring a few interests. Not surprisingly, most of us speaking in the debate are lawyers, and I am a non-practising member of the Scottish Bar. I am also vice-chair of the all-party parliamentary group on the rule of law and, as has been kindly mentioned by others today, I was the lead petitioner in the case that came to be known as the Cherry case, because that is my surname, which went to the Supreme Court. I am also involved in litigation currently proceeding in Scotland under the name of Dale Vince. I declare my interest, having been supported by the Good Law Project and the generosity of Mr Vince, who is a green energy entrepreneur.

Today’s debate has come about because of comments prompted by ill-informed fallout from the decision of the Supreme Court on Prorogation. My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East laid out the circumstances in which that happened. It is a particular matter of regret that on 11 September Downing Street sources briefed The Sun that

“legal activists choose the Scottish courts for a reason”.

Well, I chose the Scottish courts because I live in Scotland. The implication that the Scottish courts are somehow politicised is offensive as well as ignorant. There is, however, a tradition in Scotland going back to the declaration of Arbroath and the claim of right that neither the monarch nor the Government are above the law. I was very proud to see that tradition followed by the Scottish courts.

It was also great to hear Lady Hale, the President of the Supreme Court, remind us that it is also part of the English tradition, when she said that

“the courts have exercised a supervisory jurisdiction”

over the lawfulness of acts of the Government “for centuries”. As long ago as 1611, the court held that the King, who was effectively the Government, had

“no prerogative, but that which the law of the land allows him”.

I join others in particularly deprecating not so much the press, of which we have come to expect very little, but Government sources—particularly unnamed Downing Street sources, who seem to be cropping up all over the place at the moment—for the anti-judicial and anti-Scottish sentiment that they tried to stir up.

It was also a matter of some regret that a Government Minister, the right hon. Member for Spelthorne (Kwasi Kwarteng), went on television and said:

“The extent to which lawyers and judges are interfering in politics is something that concerns many people.”

He went on to say that

“many people…are saying that the judges are biased”.

He specifically claimed that

“many leave voters...are beginning to question the partiality of the judges”,

while going on to state that he personally believed that the judges were impartial.

[Dr Poulter]

As I was sitting here, it occurred to me that a former colleague of ours, albeit from before our time in the House, Humfrey Malins, who was the hon. Member for Woking, was, while he was a sitting MP, a practising barrister and, I believe, a recorder. I do not believe that anybody called into question his impartiality when he was overseeing cases in that role, or indeed subsequently when he stood down from the House, even though he is a committed Conservative. I wonder whether the hon. and learned Lady would like to reflect on that, in the context of what she was just saying.

[Joanna Cherry]

I was not aware of that. Certainly my party, the Scottish National party, believes that MPs should devote themselves full time to that job. That is why I have been a non-practising member of the Scottish Bar from the moment that I was elected. I would find it rather curious if a Member of Parliament were, in the modern age, sitting in a judicial capacity. I think that would rather interfere with the separation of powers, whereby legislature, Executive and judiciary should be separate. However, I was not aware of those circumstances, so perhaps I should not say any more about them.

Returning to the comments made on television by the right hon. Member for Spelthorne, although it has been good to hear the Lord Chancellor repeatedly assert the independence of the judiciary, including today at Justice questions, it is reprehensible for Government Ministers to attempt to stir up anti-judicial sentiment as in this situation. I totally believe in freedom of speech, and am on the record as being somebody on the left who is very much in favour of it. Sometimes the champions of freedom of speech are to be found very much on the right, but there are some of us on the left, and I would never question anyone’s right to say that they disagree with a decision. However, if a Government Minister or unnamed sources call into question the independence or impartiality of the judiciary, such comments can serve to normalise a crude scepticism that ignores the legally complex and personally demanding work that judges have to perform. That is why we politicians have to be careful what we say. Many decisions in the past have not pleased me, and I have certainly criticised them, but I have not tried to suggest that they were made because the judges were of a different political persuasion to me.

We can do no better than look at one of England’s most respected jurists, Lord Bingham, who said in the Belmarsh case in 2004 that it is wrong to argue that judges are somehow undemocratic simply because they are unelected, or because they are asked to assess the legality of the Government’s decisions. He said that, on the contrary,

“the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.”

I think what Lord Bingham was really saying is that the very concept of a modern democracy envisages an important role for the courts.

It is particularly important to remember that the decision that was made by the Supreme Court justices was not a political decision; as Lady Hale was at pains to underline, it was a decision on the law. In Scotland’s Court of Session, Lord Drummond Young said in relation to the case:

“The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so.”

That is what the case was about: restoring to Parliament its function of politically scrutinising the Executive. Those on the right of British politics outside this room who do not like what happened in the Supreme Court should ask themselves how they would feel if a left-wing Prime Minister sitting at the apex of a minority Government prorogued Parliament because it was getting in his or her way. It cuts both ways, and that is why this is a principle of law and democracy rather than a political decision.

My hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East has already quoted some pertinent comments made by Sir David Edward, former judge of the European Court of Justice. I will also quote Lord Hope of Craighead, former Deputy President of the Supreme Court and a former Lord President of the Court of Session, who said that the suggestion—initially made by the Attorney General—that there might need to be some parliamentary scrutiny of judicial appointments was “wholly misguided”. He said:

“The Supreme Court justices were careful to explain in their judgment”

in the Prorogation case

“that they were not pronouncing on political questions. The issues with which they were dealing, as is the case with all the other issues that come before them, were issues of law.”

He went on to say that vetting judges

“would risk politicising the office which they hold, in the minds of the public”

and would be

“contrary to the fact that political opinion plays no part in the work that they do.”

He finished by saying:

“The guiding principle is that they decide cases according to the laws and usages of this country, and not according to such political views, if any that they might happen to hold.”

Very trenchantly, he added:

“We have nothing to learn on this issue from what happens in the United States.”

Somebody pointed out earlier that there will be some judges in position who have, in a previous life, expressed political views. Of course, in Scotland we no longer have a tradition of political appointments for the Law Officers—they are apolitical appointments—but in the past, we did. Frequently, the Lord Advocate in Scotland would go on to sit on the bench, and he—it was always a “he” in those days—would have been from either a Labour or a Conservative background. However, the crucial thing was that when he took his seat, he took the judicial oath of impartiality, and put aside the politics he had had before to enable him to make impartial decisions on the law. I do not think the ability to do that is confined to men. Thankfully, there are at last plenty of women coming through in the judiciary, both north and south of the border. We would all like to see more, but it has been very important to see a female English judge at the apex of the United Kingdom’s Supreme Court. As others have said, there is still much work to be done to ensure that the diversity of all our communities across Scotland and England is represented on the bench.

I will finish with a quote from almost 15 years ago, when Professor Anthony Bradley was advising the House of Lords Constitution Committee. I am pleased to say that Professor Bradley was my tutor when I was an undergraduate at the University of Edinburgh, 30 years ago; he was then, and is now, a very respected authority on constitutional law in the United Kingdom. Back in December 2005, he told that Committee:

“It is more important than ever that the courts should be able to do justice in an even-handed and impartial manner. Ministers and the Government in general should not seek to blame the judges when the courts make decisions that are adverse to the wishes or policies of the Government.”

All of us who are politicians should aspire to follow that advice. His message is just as important now as it was then, given the fallout we have had from the recent, landmark constitutional cases.

--- Later in debate ---

[Chris Philp]

I concur with both comments. I would also like to thank Judge McKinnon, who is a constituent of mine as well as a former chair of the bench. I agree that my comments on age apply as much to the magistracy as to the judiciary more generally—the court judges. As I said, I think my hon. Friend can look forward to a consultation on the topic before too long.

Several hon. Members raised the matter of the gender balance and ethnic composition of the bench, and I entirely understand why those points were raised. The proportion of newly appointed court judges from BME backgrounds is 11%, which compares to slightly over 15% of the population as a whole. Currently 7% of court judges and 11% of tribunal judges are, as the hon. Member for Bolton South East said, from BME backgrounds.

As for gender balance, as the hon. Lady said, 27% of High Court judges are female, and that figure rises to 32% across the courts more generally and 46% in tribunals. Also 56% of the magistracy are female and about 50% of court judges under 50 are female; that is an encouraging sign. Qualifying those remarks, I would say that we rightly expect more senior court judges to have decades of experience at the Bar, so appointments today reflect the Bar 30 or 40 years ago, when diversity was not what we would like, and there is a measure of unavoidable time lag. That does not mean that we should not take proactive and active steps—we should. We should encourage the JAC and work generally to improve diversity in the magistracy and the courts. The figures are moving in the right direction and improving, but I am sure we can do more. As a newly appointed Minister I will certainly consider what active steps can be taken in that area.

I am grateful for the opportunity to respond to this debate, to the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for securing it, and to other hon. Members for attending. Those include the now very famous hon. and learned Member for Edinburgh South West—

[Joanna Cherry]

Infamous.

[Chris Philp]

Let me be generous and say famous! It gives me, the Lord Chancellor, and the Government as a whole great pleasure to reconfirm our commitment to independent, non-political appointments to the bench at all levels. That is the foundation on which the rule of law is built, and that should not change.