Parole Board and Victim Support
Joanna Cherry Excerpts(6 years, 6 months ago)
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Mr Gauke
My hon. Friend is right to raise that case. I met Professor Hardwick this morning and he is already participating in this debate. He has been making the case for greater transparency and, as I said in an earlier response, he makes a good case. There is a strong case for ensuring that the reasons for particular decisions are put in the public domain, where that provides reassurance.
Joanna Cherry (Edinburgh South West) (SNP)
I welcome the Lord Chancellor and Secretary of State to his place, and I thank him for advance notice of the statement. I was pleased to hear him say that it is a priority for the Government that victims of rape and sexual assault have full confidence in the criminal justice system.
In Scotland, where these matters are devolved, we have put a huge amount of work into improving the prosecution of sex crimes, and Police Scotland works closely with the National Sex Crimes Unit—I was proud to be one of its first prosecutors nine years ago. In Scotland we have robust victim notification schemes. What has gone wrong with the notification scheme in this case is just one issue. There were also very serious failings from the outset in the way in which the police approached the investigation, and the House needs assurance that those serious police failings could never happen again. Can the Secretary of State give us that assurance?
It is concerning that, as Home Secretary, the Prime Minister intervened to support the police against victims who had successfully obtained findings in the lower courts that the police had been in breach of the Human Rights Act 1998 in the way they investigated them. I appreciate that, as the Lord Chancellor has said, those cases are currently sub judice, but can he give an undertaking that when the judgment is issued he will make a statement to the House about why the Government took the side of the police against the victims?
Worboys is going to be free later this month unless further charges are brought. We are all aware that there were many more Worboys victims than those in respect of whom there has been a prosecution. The Guardian has reported that the police say there is no live investigation, but it has also reported that the victims would like to see proceedings brought. Can the Lord Chancellor confirm whether any of those cases are still live? Will there be any further charges?
Mr Gauke
Further charges are a matter for the police and the Crown Prosecution Service, and I am very limited in what I can say about that. What I can say is that of course it is a priority for us that rape and other sexual offences are pursued. As I mentioned earlier, sentences for rape have increased in recent years by approximately 30% on average. We take these matters extremely seriously, and we continue to ensure that these horrendous crimes are pursued. It is not for me to make a statement about likely further prosecutions in this particular case. We are talking about a case that was prosecuted in 2009, and I know that there is an ongoing debate about whether more cases should have been brought at that point. It is important that we learn the lessons from this case and, not just looking at the particular facts of this case, ensure that we have a victim support system that works for victims across the board.
Oral Answers to Questions
Joanna Cherry Excerpts(6 years, 7 months ago)
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Dominic Raab
My hon. Friend is right. Of course, I take very seriously the concerns of those who think we need to mitigate the risks, and that is what our negotiations and the EU (Withdrawal) Bill will do. We also have a huge opportunity to promote UK legal services on a global level through trade liberalisation and by promoting the UK as a hub for international dispute settlement. We should grasp the opportunities as well as managing the risks.
Joanna Cherry (Edinburgh South West) (SNP)
Last month—just two weeks ago—while the House debated the EU (Withdrawal) Bill, the Prime Minister’s spokesman told journalists that the Government expect the role of the European Court of Justice to remain unchanged during an implementation period of two years after the Brexit date in March 2019. Will the Minister confirm to the House that that means that it will not be possible to bring into force large parts of the EU (Withdrawal Bill), including the repeal of the European Communities Act 1972, until the end of the implementation period?
Dominic Raab
The position is set out in the EU (Withdrawal) Bill, and the hon. and learned Lady will know from Committee debates that we have made it very clear that we are not going to pre-empt or prejudge the outcome of the negotiations on either the withdrawal agreement or the implementation period.
Joanna Cherry
Last week “Sky News” reported that the Government wish to stay in the European Aviation Safety Agency after Brexit and accept that that will mean remaining under the jurisdiction of the European Court of Justice, because it is the ultimate arbiter of EASA rulings. Will the Minister now confirm that this means the Prime Minister’s red line of no ECJ jurisdiction after Brexit has been shown to be utterly and completely untenable?
Dominic Raab
I am afraid that the hon. and learned Lady is relying yet again on second-hand reports via the media. We will not pre-empt or prejudice the outcome of negotiations on the partnership deal, and I hope that she will support us in getting the very best deal for that sector and for the UK as a whole.
European Union (Withdrawal) Bill
Joanna Cherry ExcerptsTuesday 21st 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 21 November 2017 - (21 Nov 2017)
Joanna Cherry (Edinburgh South West) (SNP)
The hon. Member for Banbury (Victoria Prentis) suggested that the charter of fundamental rights contains rights that are too complicated to be incorporated into English law. Will the hon. Member for Nottingham East (Mr Leslie) reassure her that those rights have been incorporated into Scots law, which is a separate legal system, and into all the legal systems of the other member states of the European Union? In fact, it is not too complicated to incorporate the rights into English law.
Dominic Raab
I will just make a little bit of progress and then I will give way to my right hon. and learned Friend.
I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle—indeed, I think we would find it counter- productive in practice—to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.
Dominic Raab
I will not give way just for the moment, but I will give way to the hon. and learned Lady shortly.
Dominic Raab
I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments.
I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn). My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of law”, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments—at least as I have understood them, and I stand to be corrected—would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK’s basic constitutional hierarchy that we are seeking to restore and affirm.
Dominic Raab
My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.
I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:
“The United Kingdom will cease to be a member of the European Union on the 29th March 2019”.
I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.
Joanna Cherry
The hon. Gentleman said earlier that one of his guiding principles was not to exacerbate any legal uncertainty, but the Exiting the European Union Committee has heard evidence from a senior lawyer that the body of retained law will contain instruments that make explicit reference to the charter. If the charter is not part of retained EU law, how are the courts supposed to interpret the body of retained law that refers to it?
Dominic Raab
The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing subsections (4) and (5) of Clause 5. I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country’s record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.
Dominic Raab
I am going to make a bit of progress, but I will give way shortly.
Let me, again, be clear about what the Bill does. It takes a snapshot of substantive EU law, including the underlying fundamental rights and principles at the point of exit. It converts those into UK law, where they will sit alongside the Human Rights Act and other UK legislation on human rights. That is a crucial point. As my right hon. and learned Friend the Member for Beaconsfield rather perceptively asked during debates on the Lisbon Treaty in 2008,
“Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European Convention on Human Rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights?”—[Official Report, 5 February 2008; Vol. 471, c. 804.]
During the same debate, my right hon. and learned Friend made the point, far better than I can—and I say this with all due deference—that the risk of adopting the charter was that it would, at least potentially, run into conflict with domestic human rights law, thereby creating at least the potential for legal confusion. This is the point that I want to make to my right hon. and learned Friend the Member for Rushcliffe. If we incorporated or implemented the charter, we would in effect be triplicating human rights standards in UK law, opening up wide scope for uncertainty. My right hon. and learned Friend the Member for Beaconsfield was right about that then, and I think he is right about it now.
Joanna Cherry
With all due respect, I do not understand the point that the Minister is making. The charter is already part of UK law, because we are a member of the European Union.
Dominic Raab
As we leave the European Union, it will make no sense to retain the institutional framework of membership. What we will do is retain, in the way that I have described very carefully, the substantive rights that were codified in the charter. If, when we publish the memorandum, the hon. and learned Lady, or any Member on either side of the House, thinks that there is a gaping gap, we will be able to address that.
Joanna Cherry
I rise to give my support and that of the Scottish National party to the amendments designed to retain the charter of fundamental rights in domestic law, and those designed to preserve legal remedies for individuals and businesses to enforce these rights in the courts and to be compensated when the rights are breached.
It is heartening to see such strong cross-party support for these amendments. I very much hope that the Conservative rebels will have the courage of their convictions to push these amendments to a vote tonight, despite the unpleasant pressure they have been subjected to as a result of the actions of certain newspapers. That is a matter for them. There are other cross-party amendments on the charter that I am sure will be pressed to a vote if those in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) are not.
Before I address why the SNP supports these amendments, I have a crucial question for the Minister. It needs to be answered, not for my benefit, but for the benefit of the whole House and, indeed, the country. The clause we are debating revolves around the supremacy of EU law and whether the charter will be part of domestic law after exit day, but, as has already been mentioned in our debate, this morning the Prime Minister’s official spokesman told a routine Westminster briefing that the Government expect
“the ECJ’s role to be unchanged during an ‘implementation period’ of around two years following the official Brexit date in March 2019”.
Are those on the Treasury Bench aware of that statement? Can they explain to us how it impacts on what we are debating today? If the Prime Minister is of the view, as her spokesman has said, that the Court of Justice’s role will be unchanged during a two-year implementation period from exit day, not only is the rather ridiculous amendment brought to this House by the Government last week defining exit day rendered utterly meaningless, but much of the debate we are having this afternoon about clause 5 and, indeed, the debate we had last week about clause 6 and other clauses are rendered meaningless.
I am not trying to score a party political point here. This is a matter of legal certainty which is of the utmost importance to all UK citizens and to UK business and universities. Which is it? Is what the Prime Minister’s official spokesman said this morning correct? Is the Court of Justice’s role going to continue unchanged during a two-year implementation period and, if so, how does that impact what we are debating today? I am very happy for the Minister to intervene on me to clarify that, but if he wishes to take advice, I am sure that his ministerial colleague the Solicitor General will clarify that vital point and the impact of the Prime Minister’s statement this morning on the entirety of this Bill, and most particularly the clause we are debating.
In any event, if this somewhat holed-beneath-the-waterline Bill is to survive and limp on, the SNP commits itself wholeheartedly to the amendments to keep the charter of fundamental rights, to keep individuals’ and businesses’ rights to sue and enforce, and to make those rights meaningful, because that is what the individual right of enforcement and Francovich damages are all about: making rights meaningful. For anyone who has studied law, a right without a remedy is a pretty useless thing; it is trite law.
The Scottish Government published their programme for government earlier this year, and reiterated their commitment to international human rights norms. It is important to remember that human rights are not wholly reserved by this Parliament when it comes to the devolution settlement, so what the Scottish Government choose to do could be very important, particularly if Scotland is to be taken out of the European Union against her will. My colleagues in the Scottish Government have emphasised that it is essential that existing safeguards are not undermined by Brexit, and that the rights enjoyed by everyone in these islands, as EU citizens, need to be permanently locked into a future deal. That is why we oppose the removal of the EU charter of fundamental rights from domestic law, and why we opposed the Government’s previous desire to repeal the Human Rights Act.
I was interested in the Minister’s reiteration—in fairness, this has been reiterated by the Government several times as part of this debate—that there is no intention to withdraw from the European convention on human rights. But, as I have already said, rights without remedies are not much use. The great thing about the Human Rights Act was that it gave UK citizens the opportunity to enforce their rights by raising actions in the courts of their own jurisdiction. Will the Minister—or the Solicitor General, when he gets to his feet—confirm the Government’s intentions regarding the Human Rights Act?
Dominic Raab
I think I have already said this, but I am very happy to reaffirm for the hon. and learned Lady that the Government have no plans to withdraw from the ECHR, or to revise or repeal the Human Rights Act.
Joanna Cherry
I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on it. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.
My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to
“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”
The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.
That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and voted in considerably larger numbers for parties that support international human rights norms than for those that do not.
It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.
A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.
As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?
As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.
I am interested to see the list that the Minister is going to produce on 5 December, but he could make his life a lot easier—I know that he and his colleagues have a lot on their plate at the moment—if he just incorporated the charter, rather than running around with bits of paper listing the general principles when they are all listed in the charter anyway. Surely that would be the logical and practical thing to do; unless there is, to use someone else’s phrase, some devilish plot, whereby removing the charter of fundamental rights means that rights will be removed. There is some evidential basis for believing that at least some Government Members think it is a good thing not to incorporate the charter of fundamental rights because it includes rights that they do not like. I am sorry to single out one Government Member, but I did read the article in The Sun yesterday by the hon. Member for Fareham (Suella Fernandes). I am not normally a reader of The Sun, but it caught my eye on Google that it contained an article about the charter of fundamental rights and I thought that every newspaper should be given a chance from time to time, so I had a little look. Like me, the hon. Lady is a lawyer, and she writes:
“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,
but it has also
“crept into many areas of UK law, from asylum to even national security.”
So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.
Suella Fernandes
I am flattered that the hon. and learned Lady is quoting me in the Chamber. Does she not find it odd that the effect of her proposals would actually be legal chaos and uncertainty? We would have interacting rights regimes, with the convention through the Human Rights Act, and the charter. This would be precisely at the time at which the Bill is designed to provide legal certainty for businesses, individuals and other Governments.
Joanna Cherry
With respect, we have all that at present. The status quo is that the ECHR and the charter of fundamental rights are part of domestic law, and I do not see any legal chaos in our courts, although I do see an awful lot of political chaos.
Wera Hobhouse
Does the hon. and learned Lady agree that there is some kind of misunderstanding here, and that it is the gaps that we are addressing? We are not creating uncertainties. The situation proposed by the Bill will create gaps, and that is the main problem that we are addressing.
Joanna Cherry
The hon. Lady makes her point eloquently. Some of those on the Government Benches say that incorporating the charter into domestic law would cause uncertainty and chaos, but our point is that not incorporating it while we are incorporating everything else at the point of the snapshot is what will cause uncertainty. I do not know whether I would go so far as to call it chaos. After all, there is going to be so much chaos around after Brexit, and a difficulty in establishing the difference between fundamental rights and general principles might not be the biggest example of that chaos. However, there will be legal uncertainty. The Minister himself said that one of the Government’s guiding purposes in the legislation was to avoid legal uncertainty.
Antoinette Sandbach
Our independent judiciary is clearly quite capable of balancing the rights contained in the charter, the Human Rights Act and other pieces of domestic legislation, and it has done so successfully for many years.
Joanna Cherry
Indeed it has; that is its job. In particular, judges at the higher level such as the Supreme Court and the High Court of Judiciary in Scotland are used to grappling with the complex interplay of international treaties and international human rights protections.
I mentioned earlier that the Exiting the European Union Committee had heard evidence from a variety of witnesses about the effect of not incorporating the charter. I have to be honest and say that some of them were happy for the charter not to be incorporated, but even they said that something would be lost by its going. Hon. Members on both sides of the House have given a number of examples of what would be lost, and I would like briefly to add to that list.
Lady Hermon (North Down) (Ind)
Just before the hon. and learned Lady comes to her list, may I add one more item to it? The Government have made great play of their commitment to the Good Friday agreement—the Belfast agreement—and stated that they are going to uphold all their obligations under it. One of those obligations relates to respect for human rights; indeed, that element has quite a large chapter in the agreement. Part of that obligation involves having, at the very least, an equivalence between human rights protections in Northern Ireland and in the Republic of Ireland. It is obvious that when the UK leaves the European Union, Northern Ireland will not have the protections afforded by the charter that we are discussing, but that the Republic of Ireland will. I hope that the hon. and learned Lady will therefore press the Government to fill that gap in Northern Ireland’s protection of fundamental rights.
Joanna Cherry
Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—
The Solicitor General (Robert Buckland)
I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.
Joanna Cherry
I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on 5 December, because with all due respect, a list prepared by a Minister does not have the same weight in a court of law as a codification that has been signed up to by a number of countries.
It is not just my view and that of the hon. Member for North Down (Lady Hermon) that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government’s approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.” This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.
Mr Jenkin
I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.
Joanna Cherry
If I may say so, I think that that is to misunderstand. I am not responsible for the false assurances that were given about the opt-out when this country signed up to the charter. They did not come from the Scottish National party, and I think it is fair to say that they have now been disowned by the Labour party. In reality, the incorporation of the charter in our law has meant enhanced direct effect. I use the term “direct effect” rather than “direct applicability” because people are able to take an action and refer to those rights in the course of their action, as we saw in the Supreme Court case last summer when a gentleman named Mr Walker was able to realise equal pension rights for his husband, despite a loophole in UK law about the equalisation of pension rights for gay couples, because the EU charter closed that loophole.
I want to give the House a brief list of some of the rights involved. We have heard a lot about data protection, and I know that others will want to address that issue, but it is worth remembering that the right to be forgotten on Google and other search engines—which I believe is of interest to some Members—stems from the EU charter. There is more to it than that, however. Let us look at the words of others, rather than simply accepting the argument on my say-so.
When the Exiting the European Union Committee took evidence on these matters, Caroline Normand, the director of policy at Which?, told us that
“the Charter of Fundamental Rights contains some really important principles for consumers. The particular ones that I would highlight are the right to a high level of human health protection, which is article 35, and a right to a high level of consumer protection.”
She referred to the case last May—it has already been mentioned today—when the large tobacco companies brought judicial review proceedings challenging the regulations that introduced standardised packaging for tobacco products. The High Court dismissed the case, referencing the public health and other rights set out in the charter. That is a pretty meaningful right for public health in these islands.
Dr Charlotte O’Brien, a senior lecturer at York Law School, told the Select Committee that she had produced an approximate count for the number of times the charter was referenced in case law. She found that the charter was cited in 248 cases in England and Wales, 17 in Northern Ireland, 14 in Scotland and 98 in the European Court of Human Rights, and in 832 EU judgments, 515 of which were from the Court of Justice. Her point was that that is an awful lot of cases that would have to be read differently, and it is not clear how they are to be read differently.
Seema Malhotra (Feltham and Heston) (Lab/Co-op)
The hon. and learned Lady and I both sit on that Committee. I would like her views on another point made by Dr O’Brien, which was that the school of thought that says that excluding the charter might not make that much difference is misleading because of the extent to which it is embedded in a lot of what we would consider to be retained EU law, and disentangling that would be extremely complicated.
Joanna Cherry
Dr O’Brien did indeed make that point, and I think that anyone interested in the detail of why removing the charter from domestic law would take away rights would be well advised to read her evidence.
Mr Geoffrey Cox (Torridge and West Devon) (Con)
The number of cases in which the charter is cited— 248 in England and Wales—does not mean that it has had the slightest practical effect on the outcome of judgments, as the hon. and learned Lady knows quite well.
Joanna Cherry
I do know that, because I have sat through cases—so, too, has the hon. and learned Gentleman, I suspect—in which case law has been cited and it is hard to see its relevance. However, Dr O’Brien made her point advisedly, having taken care to prepare for the Select Committee hearing, so it is not an isolated point—as the hon. Member for Feltham and Heston (Seema Malhotra) has indicated, there was quite a bit more to her evidence. She touched in some detail on data protection issues, but I will leave it to other Members to discuss those, because the right hon. Member for East Ham (Stephen Timms) had a very interesting exchange with her on these issues and will no doubt address them later, because he has tabled an amendment.
Joanna Cherry
The hon. and learned Gentleman is no doubt commenting on the English jurisdiction, and I cannot comment on that because I have not appeared here, except in the UK Supreme Court. But certainly in Scotland it is sometimes referred to, and sometimes it is relevant and sometimes it is not, but that applies to all references made in cases. However, to counter his point, there are hard examples of where the charter has made a huge difference. The right hon. and learned Member for Beaconsfield referred earlier to the Benkharbouche case, which concerned the rights of an employee in an embassy in London, and another against the embassy of the Republic of Sudan. The individual complained of unlawful discrimination and a breach of working time regulations, and she would have been denied remedy had it not been for the charter.
One may forget Dr O’Brien’s evidence about the number of references if one wants to, but look at the hard examples of where the charter has made a difference. We have also heard about the tobacco packaging legislation. There are many examples relating to data protection, perhaps the most celebrated one being the litigation of the Secretary of State for Exiting the European Union.
Darren Jones (Bristol North West) (Lab)
I hope that the hon. and learned Lady can help me with a point of confusion that I am struggling with—I hope that I do not embarrass myself in front of more learned Members of the House. Is it not right to say that the application of charter rights in the European Court of Justice creates case law that, under this Bill, we are saying has UK Supreme Court-level status, so in effect are we not copying across ECJ case law on the charter into UK common law while not copying across the charter, and is not that nonsensical?
Joanna Cherry
The hon. Gentleman is absolutely right, and that point was also made by Dr O’Brien in her evidence. If, in the snapshot of retained EU law that will be taken on exit day, we are taking across all sorts of aspects of EU law that refer to the charter, it is nonsensical not to take the charter across as well, particularly if the Government insist on sticking to what they say in the explanatory notes, which is that the charter does not really add anything that is not already in the general principles. What it does add is clarity.
The process of leaving the European Union is already extremely complex and unpredictable, and the removal of the charter of fundamental rights simply risks creating an additional level of legal uncertainty and instability. So why do it? Why not reconsider? The Government have bigger issues on their plate, such as the Prime Minister’s spokesperson’s admission this morning that we will be in the European Court of Justice for another two years after exit day, which as I said earlier renders a lot of what we are discussing this afternoon somewhat irrelevant—at least in the short term. The Government have bigger fish to fry, so why remove the charter? Why take away from ordinary British citizens and businesspeople the right to sue to enforce their rights and to realise damages if their rights have been breached? Why do that unless it is part of a wider agenda—one bigger than Brexit—that is about rolling the United Kingdom back from its adherence to international human rights norms? The Government need to think carefully about the message they are sending out.
Wera Hobhouse
I thank the hon. Gentleman for making that point. Legal experts the Select Committee has listened to have made the point that there are gaps, so what is the point of not taking the charter into our retained EU law as a whole, because we are taking everything else, and making sure these gaps do not exist?
Joanna Cherry
Does the hon. Lady agree that it is hard to substantiate the claim that Britain leads the world in equality rights, given that we have so often had to fall back on the charter to fill gaps in our equality laws, as, for example, in the Walker case before the Supreme Court in the summer?
Wera Hobhouse
The hon. and learned Lady makes a good point. I am proud of the British legacy of fundamental rights, but as is clear, and as seems to be stated in a lot of legal cases—as I say, I am not a legal expert—lawyers are using different kinds of law because different laws apply to different cases. That is why we have this charter and we would lose a fundamental protection if we did not have it.
Mr Cox
Broadly speaking, there have been two means of protecting human rights in international law. The first, which is generally followed by civil and continental law systems, has been to adopt charters of general rights with very broad statements of those rights and then to turn over to the courts the interpretation, in specific circumstances, of how those rights should be applied. The second, which is generally followed by common-law traditions, has been to proceed not by general statements of rights, but by specific statutory remedies in defined circumstances and by case law that defines the facts and allows the remedy to be extended by analogy with the facts of the particular case.
With due respect to Opposition Members, it seems to me as though some of them have made a mistake in equating the need for the incorporation of the charter with the protection of fundamental rights in this country. Article 7 of the universal declaration of human rights provided in 1948 that all subscribing nations to the United Nations should respect the principle of equality. But it has never been suggested that the United Kingdom, because it did not incorporate that principle into a general statement of an equality right, was not compliant with its obligation in international law, under the declaration and subsequently the covenant, to respect equality.
That is because there are two ways in which one can protect human rights. One can either adopt a general statement of rights and leave the protection of it to the courts, or one can adopt specific remedies in given circumstances that cumulatively and substantively protect those rights. Nobody has suggested that because the Soviet Union incorporated a right to equality into its constitution, equality rights were better protected there than they were in this country, which did not. Therefore, the absence of a general statement of rights, such as that in the charter—I do not say that there is not a function for such statements, but let us begin with first principles—is not to be equated with the protection of human rights. We have to look at the substantive effect of the cumulative common-law and statutory protections in our law.
That is why my right hon. Friend the Member for Forest of Dean (Mr Harper) suggested that the Government’s approach should not be to incorporate this charter of wide, broad and, quite frankly, vague general statements of rights and allow courts to take those statements, which are often rich with value judgments, and apply them to the facts. That is why the approach of my right hon. and learned Friends on the Front Bench is right and, I suggest, consistent with the common-law tradition of this country.
Joanna Cherry
I am wondering which country the hon. and learned Gentleman is talking about, because the common-law tradition melds with the civilian tradition in Scotland. I take nothing away from his erudite explanation of the background to all this, but the point that hon. Members seek to make is that, as is the case with the Human Rights Act, having the charter of fundamental rights as part of our law gives ordinary citizens and businesses the opportunity to go to court to enforce those rights, which this Bill will take away from them.
Mr Cox
No such charter existed with binding legal force before 2009, even in the European Union, but let us look at the circumstances. I contend that there are two ways of proceeding, of which the first is to have a broad and general statement of human rights—indeed, extended human rights under the charter—and to allow the courts simply to interpret them in given circumstances.
Some Government Members and—I think—some Opposition Members believe that the proper place to resolve moral dilemmas is not necessarily in a court. As someone once said, why should a majority of five or nine judges take precedence over a majority of the 650 Members of this House on questions of moral dilemma? Many of these—
The Solicitor General
I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.
The Solicitor General
I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.
The Solicitor General
I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.
Joanna Cherry
I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister’s spokesperson that the Government expect the ECJ’s role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?
The Solicitor General
The hon. and learned Lady has a keen memory and she will not have forgotten the Government’s commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period— call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period.
I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands.
I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.
European Union (Withdrawal) Bill
Joanna Cherry ExcerptsTuesday 14th November 2017
(6 years, 8 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)
Joanna Cherry (Edinburgh South West) (SNP)
I wonder whether the Minister is going to admit to the Committee that setting a date for exit is mere political window-dressing. The Prime Minister has told the House that if there is to be a transitional deal, which she wants, her understanding is that it will be under article 50. That means that we will be staying in the single market, staying in the customs union and subject to EU law during the transitional period, so this exit day is simply a sop to Back Benchers. When is the Minister going to tell them the truth?
Mr Baker
I will come to the implementation period in a moment, but one of the crucial points is that we need to become a third country in order to conclude our future relationship agreement. The Prime Minister set out in her Florence speech the outline of that implementation period, which would allow practical continuity under new arrangements that would enable us to be a third country and conclude the future relationship agreement.
Paul Blomfield
I do not disagree with the Minister. It is precisely our point that, during the transitional period, we cannot disable the role of the Court of Justice of the European Union, otherwise we will not achieve the arrangement that we apparently both seek.
Joanna Cherry
The hon. Gentleman is making a powerful point, and I wonder whether I might help. I asked the Prime Minister what she thought the legal basis of any transitional deal will be, and she said that the EU takes the view that it will be article 50. When I was in Brussels with the Exiting the European Union Committee last week, I raised this issue at the highest level of the EU and was told that, yes, it is envisaged that during the transitional deal Britain will stay in the single market, in the customs union, within EU law, within the acquis and under the jurisdiction of the Court of Justice of the European Union.
Paul Blomfield
I agree with the hon. and learned Lady. In fact, the Brexit Secretary talked about the Court in those terms yesterday.
Mrs Gillan
My hon. Friend served with great distinction on the Council of Europe and I am thrilled to have been put back on the Council of Europe today, along with several colleagues across the House. I happen to think that this is extremely important, as is our membership of the Council of Europe, and my hon. Friend is right that that situation would be looked at with some suspicion by the other 46 members of the Council of Europe. For that reason, it is important that if we change the law through this Bill, changes that result from the Bill only apply from a point in the future, so that individuals can rely on the law as it stood up to the point when the law changed.
Joanna Cherry
I am sympathetic to the arguments the right hon. Lady is putting forward. Following on from the intervention of the hon. Member for Bromley and Chislehurst (Robert Neill), does the right hon. Lady agree that if people’s legitimate expectations and right to an effective remedy are withdrawn as a result of Government action, those individuals might have cause for action against the Government under the European convention on human rights?
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.
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.
Stephen Gethins
I am loth to interrupt my hon. and learned Friend, who is making a powerful case for legal certainty, but does she agree that a wide range of industries and other organisations will need legal certainty, certainly around freedom of movement, such as our education sector and food and drink sector? Does she also share my concerns about the reports that have come from the Financial Times this evening that the Secretary of State for Exiting the European Union says that bankers and other professionals have been promised a special post-Brexit travel regime? If we are going to have freedom of movement and the benefits that brings, we should not just be protecting the bankers.
Joanna Cherry
I am grateful to my hon. Friend for bringing this matter to the Floor of the House. I was made aware of it just before I got to my feet. If the Financial Times report is correct that the Government are going to give special deals for certain professions, that will come as a great shock to the other professions that will not get such a special deal, and a particular shock to cross-party colleagues in the Scottish Parliament who have asked for a separate deal on immigration in Scotland, as have Unison, the chambers of commerce in Scotland and the Institute of Directors. I look forward to the Secretary of State for Exiting the European Union coming to the House to explain what is going on here.
To returning to the issue of legal certainty, the Institute for Government looked carefully at different tests that might be put on this Bill to direct the courts, and expressed the view that if Parliament passes the buck on this question to the judges, it will leave the judges open to fierce political criticism. We have already seen the sort of fierce political criticism that the judges got earlier this year, and regardless of the different views we might have about the British constitution, all of us can probably accept that the independence of the judiciary is a fundamental part of any constitution that recognises the rule of law. We perhaps do not have to look too far from home in the EU at present to see a judiciary that is not independent, but I digress.
We need an independent judiciary in this country, and we have one, but it has to be protected from criticism because judges cannot go into print to defend themselves when criticised. We must provide the courts with a specific legal test on the face of the Bill governing the treatment of Court of Justice case law after Brexit, and that is what my amendment 137 seeks to achieve.
Mr Marcus Fysh (Yeovil) (Con)
Does the hon. and learned Lady agree that one aspect of the legal certainty that the Government should consider is that, as our relationship with the EU evolves, we do not want our judges to have to make decisions that might affect our commercial policy, or indeed our diplomatic policy, towards the EU?
Joanna Cherry
My amendment 137 seeks to ensure that:
“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”
The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.
This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.
The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:
“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—
she means “we, the judges”—
“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”
In my submission, under my amendment, statute would tell the judges the answer.
That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—
Joanna Cherry
I will just finish my point, then I will give way to the hon. Gentleman.
The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.
Sir William Cash
I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?
Joanna Cherry
I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution.
As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.
Joanna Cherry
The Solicitor General is absolutely right to correct my rather loose use of language. My point is that the majority of references made to the Court of Justice are made as a result of litigation between individuals or businesses to determine their respective rights rather than, as the Government’s position paper suggested in the summer, between the United Kingdom and the EU. That is not my view; that was the evidence of Professor Sir David Edward, who gave evidence on this topic to the Scottish Parliament in September. He was keen to impress on people that EU law is about the determination of individuals’ rights.
Mr Duncan Smith
That interchange was quite correct, but does the hon. and learned Lady also accept that the process of making those judgments is where the Court of Justice has widened the interpretation of the treaties by using individual cases that were sent to the Court for clarification?
Joanna Cherry
That is what modern courts do. If the right hon. Gentleman cared to study the jurisprudence of the supreme courts of the United States, Australia or New Zealand, he would find that that is what courts in adversarial jurisdictions do. I sometimes wonder whether the right hon. Gentleman’s real objection, and those of his ilk on the Government Benches, is not to the European Union, but to the very idea of courts and the rule of law itself.
Anyway, as well as creating legal certainty and protecting the judiciary, amendment 137 is also important for protecting individuals’ rights. If the UK’s courts do not pay due regard to decisions of the Court of Justice, there will be no provision to ensure that rights in the United Kingdom keep pace with EU rights after Brexit or even to encourage that to happen. That could lead to rights upheld domestically lagging behind international standards, which I am sure we would want to avoid.
Hannah Bardell (Livingston) (SNP)
Does my hon. and learned Friend agree that we have already seen examples of the denigration of our rights, particularly in aspects of the Trade Union Act 2016? Without the safety net of the Court of Justice, there is a further risk of those rights being degraded.
Joanna Cherry
I agree with my hon. Friend, and that is probably why the TUC supports my amendment.
To keep rights up to similar international standards is particularly desirable in areas that require a degree of co-operation and reciprocity, such as consumer rights, equality protections and environmental standards. The Exiting the European Union Committee, of which I am a member, has heard much evidence recently about the importance of preserving rights protections after Brexit. EU case law has had an important impact on equality rights in the UK, and my amendment seeks to ensure that British courts will continue to pay due regard to that jurisprudence as our law develops. I urge all hon. Members to give amendment 137 their support in the interests of achieving legal certainty, protecting the rule of law, protecting the judiciary from political attacks and protecting our constituents’ rights.
I turn now to pending cases and amendments 202 and 203, which I am grateful to the Law Society of Scotland for drafting. There is currently nothing on the face of the Bill about what will happen to litigation pending at the time of exit day. There just is not anything. If there is, I am sure a Minister will point me to it later.
As the right hon. Member for Chesham and Amersham said, this is all about legitimate expectations. As I said when I intervened on her, if the Government do not move in the Bill to protect the legitimate expectations of litigants, they could find themselves being litigated against for failing to provide an effective remedy.
Of course, it would be objectionable on the ground of retrospectivity if a simple cut-off happens on exit day and if no consideration is given to pending cases, as other hon. Members have said. Such a situation is not without precedent. As I said in my intervention on the Minister of State, Ministry of Justice, the hon. Member for Esher and Walton (Dominic Raab), one precedent is the way in which the transition from the Privy Council to the New Zealand Supreme Court was dealt with, and I urge the Government to look at that. I urge all hon. Members carefully to consider the amendments designed to protect pending cases and pending litigation on exit day.
Mr Duncan Smith
I have not tabled any amendments, but I will briefly comment on one set of amendments before making a point about the drafting of clause 6. For me and many of my colleagues, that is the most important clause because the clear definition of being in or out of the European Union ultimately comes down to the Court of Justice’s ability to change the United Kingdom’s laws by direct reference as a result of a clash with European law.
Twenty-five years ago, I stood in almost the same place, during the House’s consideration of the Maastricht treaty, to make the point that the Court of Justice is more political than courts in the UK, even by its appointments and by the nature of its judgments. Judicial activism is a process that came directly from the Court of Justice, and it eventually percolated, to a much lesser extent, into the UK courts.
It is through those judgments that the Court of Justice has widened the concept of where the Commission is able to rule. A good example is that, through Court reference, whole areas of social security that were never in the original treaties were widened dramatically. Rulings have been made on the application of social security payments to individuals from countries that were never referenced in the original treaties, which is a good point about the Court’s power.
This is so critical because, after the referendum, the Centre for Social Justice, the Legatum Institute and others came together to do a lot of polling asking the public why they supported the vote to leave the European Union. The single most powerful reason—more than money and more than migration—was to take back control of our laws. I was slightly surprised because I thought it was an esoteric point for most members of the public, but they said it was their most powerful reason for voting. Some people said that, even if it meant they would be worse off for a period, it was still the overriding principle behind their vote to take back control and leave the European Union.
With that as the key, the Government are right to drive this policy. It is absolutely right for them to make it clear that, on the day we leave, the European Court of Justice will cease to have direct effect in the United Kingdom. I will return to the drafting on how long some of the other principles will continue.
The hon. Member for Nottingham East (Mr Leslie) is not here at the moment but, in line with the earlier statement by the Minister, my hon. Friend the Member for Esher and Walton (Dominic Raab), it would be wrong to support new clause 14 and amendment 278. There is a simple principle behind the Bill, and the Government have now accepted that there will be primary legislation on the agreement, or lack of agreement, as we leave the European Union with regard to our trade and other arrangements. The new clause and the amendment are wrong because they would seek to bind the hand of the Government as they sought to negotiate, and that is not the purpose of this.
Let me give an example. Not so long ago, the Secretary of State for Exiting the European Union said clearly that his view was that during the implementation period—at the beginning, we hope—we would want to have those elements of the eventual agreement in place. One of those would be a process of arbitration between the UK and the EU. If that was agreed and was part of the process, and then became part of the implementation period, the new clause and the amendment would prevent our being able to make that arrangement—they would be bound into law and we would not be allowed to go into the implementation period with these arrangements. That would immediately knock out any opportunity we have to accelerate the process of where we would eventually be by getting into the implementation period and applying an arbitration process agreed between the EU and the UK for those areas of disagreement on areas of law and other interpretations. That is why these proposals are wrong and would damage the prospects of the negotiations that are likely to take place.
Sentencing
Joanna Cherry Excerpts(6 years, 8 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Lidington
I am grateful to my hon. Friend for his comments and can confirm the point he makes.
Joanna Cherry (Edinburgh South West) (SNP)
I thank the Secretary of State for his statement and for writing to my colleague, the Scottish Government’s Cabinet Secretary for Justice, to inform him of his plans regarding the UK parliamentary franchise.
This is a difficult matter, and I welcome the fact that the UK Government are taking steps to respect the rulings of the European Court of Human Rights. Many people across the UK at first disagreed with that decision, but at Justice questions earlier this week we heard some eloquent explanations of why it is appropriate for the Government to grasp the nettle.
The Scottish Parliament’s Equalities and Human Rights Committee is currently looking at this very issue, taking evidence and examining practical points about whether devolved powers could be used in relation to the franchise for Scottish Parliament elections. The Scottish Government will respond in due course. Will the Secretary of State confirm that the UK will work with the Scottish Government to reach the cross-party agreement required for this sort of reform?
Mr Lidington
I am very concerned indeed to ensure that my officials, my Ministers and I work closely with Michael Matheson, the Scottish Justice Minister, and his colleagues and officials in Edinburgh. In my current position, I am well aware of the importance of recognising that the Scottish legal system and legal tradition are distinct from those of England and Wales. We need a policy that works as effectively in Scotland as in the rest of the UK.
Oral Answers to Questions
Joanna Cherry Excerpts(6 years, 8 months ago)
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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.
Women Released from Prison
Joanna Cherry Excerpts(6 years, 9 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
It is a pleasure to serve under your chairmanship, Mr Howarth.
I congratulate the hon. Member for Ogmore (Chris Elmore) on obtaining this debate and on putting the issues so succinctly, especially highlighting the fact that we need to question whether incarceration is always the right response to female offenders, and indeed to all offenders. Clearly there are serious offenders who must be incarcerated, but for less serious crimes we need to consider alternative modes of disposal.
The hon. Member for Stretford and Urmston (Kate Green) spoke very strongly about the issues, based on her own hard work in and long experience of this area, and she spoke very movingly about the very real issue of deaths in custody and female suicides. She also spoke about the need to transform the way that we rehabilitate women, and about the need to address the issue of the funding that is required to do so. Topically, given today’s debate in the main Chamber, she also spoke about the need to address universal credit issues for women leaving the prison estate.
The hon. Member for Swansea East (Carolyn Harris) again emphasised the importance of resources for support and counselling, and raised the genuine issue of the homelessness of many women who leave our prisons across the United Kingdom. The hon. Member for Strangford (Jim Shannon) made the point that prison officers in his constituency who serve in the system see the need for reform, and the hon. Member for Stockton South (Dr Williams) emphasised the duty of care that is owed to these women, as well as the great importance of tackling mental health issues.
This is a devolved matter, and in Scotland we have faced similar challenges. The Scottish Government have worked to support the effective reintegration and rehabilitation of women released from prison. To do that, they put together the reducing reoffending change fund, which funds a number of services that provide mentoring support to women in the criminal justice system—in particular, to women leaving prison. They also looked closely at the issue of short custodial sentences, and there is now a presumption in Scots law against short custodial sentences for all prisoners. The idea is that it is easier to rehabilitate people if they do not serve a short custodial sentence. The Scottish Government are doing work in that area.
Let us be frank: Scotland has a serious problem with the number of people incarcerated. In 2015, women made up more than 5% of the prison population in Scotland. That is the second-highest female prison population in northern Europe. Only Spain has a higher female prison population. In response to that issue, a commission was set up under the former Lord Advocate of Scotland—my boss in another life—Dame Elish Angiolini, who looked into how to improve outcomes in Scotland for women in the criminal justice system. She published a report in 2012, which made many wide-ranging recommendations, including the establishment of community justice centres, which offer a one-stop support network for women, the introduction of nationwide mentoring services to support women’s compliance with court orders, and alternatives to remand—a disproportionate number of women end up on remand. She also recommended that the women’s prison—the main women’s facility in Scotland—be replaced with a small specialist prison for women serving long-term sentences and smaller units for women on shorter-term sentences. The Scottish Government have begun to implement those changes. We should pay tribute to the campaigners for penal reform and feminist groups that called for those changes over a long period and were able to influence the system in Scotland.
When we discussed the issue of prisons in England and Wales in the Chamber recently, I invited the Under-Secretary of State for Justice, the hon. Member for East Surrey (Mr Gyimah), to visit the prison system in Scotland to see the reforms we are carrying out there, and he very generously did so. I extend that invitation to the Minister. I am not saying the situation is perfect, but we have moved forward and taken the Angiolini report’s recommendations on board. Hon. Members have argued today that the UK Government should similarly take on board the Corston report’s recommendations.
The Scottish Government are also supporting rehabilitation services in the community. I would like to mention Willow, which services women in my constituency and across Edinburgh and the Lothians. It provides a range of services for women who are returning from prison to the Edinburgh or Midlothian area. It is a partnership between NHS Lothian, the City of Edinburgh Council and the Scottish Association for the Care and Resettlement of Offenders. It aims to improve the health, wellbeing and safety of women leaving prison, enhance their access to services and reduce their offending behaviour. It is an excellent facility—one of many that are springing up in Scotland. I am interested to hear from the Minister whether similar facilities will be funded by the sort of cross-government and local government partnerships that have been set up in Scotland.
Prisons Policy/HMP Long Lartin
Joanna Cherry Excerpts(6 years, 9 months ago)
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Mr Gyimah
I can give my hon. Friend an assurance that there will be a full and proper investigation. There is no point in speculating today on the exact causes of the incident, but there will be a full investigation and lessons learnt. When incidents happen, it is important that we not only deal with them but learn lessons for the future, and we will be doing that.
Joanna Cherry (Edinburgh South West) (SNP)
This is not the first time in recent years that the Government have been called to account in this Chamber for trouble in prisons in England. I note that the Prison Governors Association expressed concern about the fact that this trouble took place in a high security prison and reminded the Government that it had called for an independent public inquiry into the state of prisons in England due to cuts.
In Scotland, we have been fortunate to avoid such problems due to record investment in modernising and improving the prison estate, with the Scottish National party Government spending almost twice as much as the previous Labour-Liberal Democrat Administration on modernising the prison estate. Will the Minister accept an invitation to visit prisons in Scotland to see the good work being done there to avoid this sort of trouble?
Mr Gyimah
I will almost certainly accept the invitation to visit prisons in Scotland. We should always learn from best practice, wherever it is. That is not to say that what is happening in Scotland is necessarily best practice, but I have an open mind. I reiterate that we have a £1.3 billion commitment to modernise our prison estate in England and Wales over the course of this Parliament.
European Union (Withdrawal) Bill
Joanna Cherry ExcerptsMonday 11th September 2017
(6 years, 10 months ago)
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Stephen Kerr
My hon. Friend’s excellent point brings me neatly to the nationalists, who have called the Bill a power grab and a threat to the devolution settlement. It is no such thing. They cannot name one power that the UK Government intend to grab back from Holyrood.
Joanna Cherry (Edinburgh South West) (SNP)
Does the hon. Gentleman agree with the Law Society of Scotland, a non-partisan body, that the Bill would remove legislative competence from the Scottish Parliament, including in areas of law not reserved to the UK, such as agriculture and fisheries? Has he read the Bill?
Stephen Kerr
The answer to the first question is no. I remind the hon. and learned lady, however, that it was a Conservative Government who passed new powers to the Scottish Government, and there is no evidence, other than in the feverish imagination of SNP Members, that the UK Government intend to grab back any devolved powers.
To the contrary: I have lost count of the number of times Ministers have said in this House and elsewhere that they anticipate that the Scottish Parliament will have new enhanced powers because of Brexit. The irony is that the SNP, if it ever got its way, would hand those very powers back to Brussels. The SNP Government have spent the past 10 years power grabbing for themselves from local government and local communities, and their incessant centralising of power has undermined the very fabric of local democracy in Scotland. Just a few days ago, Scottish Ministers, against all advice, including from their own reporter, ran roughshod over local democracy in Stirling by foisting a huge commercial development on scenic greenbelt at Park of Keir. Many of my constituents—
Joanna Cherry (Edinburgh South West) (SNP)
Last week, we heard excellent forensic legal analysis, on both sides of the House, from the shadow Secretary of State for Exiting the European Union and from the right hon. and learned Member for Beaconsfield (Mr Grieve). I endorse much of what they both said but, for my part, I, like my SNP colleagues, will vote against the Second Reading of the Bill. There is no question that the Scottish National party could support the Bill until there is considerable movement towards respecting the wishes of Scottish voters who, as well as having endorsed the devolution settlement 20 years ago tonight, also voted to remain in the European Union.
Conservative and Unionist Members for Scottish constituencies seem to be a little hard of hearing and appear not to have read their briefings about the Bill—or indeed the Bill itself—so let me spell out for them why this is a power grab on the devolved institutions. I will use not my own words, but those of the non-partisan and neutral Law Society of Scotland:
“The effect of the bill would be to remove the legislative competence of the Scottish Parliament in relation to any matter in retained EU law. This would be the case even if it related to areas of law not reserved to the UK under the Scotland Act, such as agriculture or fisheries.”
There are some of the devolved powers that are being grabbed back.
If Conservative Members cared to examine the Bill with the attention it deserves, particularly in relation to Scotland, they would see that it creates a complex division of decision-making responsibility that does not reflect the reality of devolution. In particular, it empowers UK Ministers to make changes in devolved policy areas without any involvement of either the Scottish Government or the Scottish Parliament. This includes policy areas such as the Scottish justice system, where the Scottish Parliament has primary responsibility. That is why we say that this Bill is a power grab.
Twenty years ago tonight, I hosted a party in my flat in Edinburgh for friends from all political parties that had voted for devolution in Scotland. The devolved scheme that followed was the brainchild of the late, great Donald Dewar.
Chris Law (Dundee West) (SNP)
On the position of Scottish Conservatives on devolution, I thought that Scottish Tory MPs would be interested in some breaking news. The Scottish Conservative leader, Ruth Davidson, has said on the BBC in the past hour that she is
“not flying the flag for Brexit”,
and would in fact vote again for remaining in the EU. I would like to hear what my hon. and learned Friend has to say about that.
Joanna Cherry
My hon. Friend makes my point for me.
The point I was about to make is that 20 years ago in Scotland, people from all political walks of life voted for the devolved settlement. It is the settled will of the Scottish people. The question for the 12 new Scottish Tory MPs is: will they make their presence felt in this Parliament, and will they protect the democratic will of the Scottish people, including their own constituents, who voted for devolution 20 years ago by 75% and voted to remain in the European Union by 62%? Tonight is a test of their mettle. Will they represent their constituents’ views? Will they defend the devolved settlement in Scotland? Will they follow what their leader in Scotland, Ruth Davidson, has said, or will they troop through the Lobby like lobby fodder to undermine the settled will of the Scottish people and their constituents?
Several hon. Members rose—
Oral Answers to Questions
Joanna Cherry Excerpts(6 years, 10 months ago)
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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.