Procedure for Appointing Judges

Debate between John Howell and Stuart C McDonald

Tuesday 8th October 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move,

That this House has considered the procedure for appointing judges.

It is a pleasure to serve under your chairmanship, Mr Sharma. I look forward to a positive and perhaps consensual debate on the procedure for appointing judges and the importance of those procedures being consistent with the independence of the judiciary, the separation of powers and the rule of law.

I sought this debate because I was concerned about certain headlines that appeared in the press in the days following the Supreme Court judgment in the Cherry and Miller cases. I pay tribute to my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) for her work on the Cherry case, as well as the legal team, which did such great work. I was pleased to be one of the MPs party to that case. The headlines I was concerned about came in response to a decision that the Government did not particularly like. They were perfectly entitled not to like the decision, but they were not entitled to consider changing the system for appointing the Supreme Court judges.

For example, a headline in the Daily Mail read:

“Geoffrey Cox suggests UK could move to US-style political vetting of judge appointments in the wake of the Supreme Court’s prorogation ruling”.

The Daily Telegraph ran the headline:

“Supreme Court justices could be appointed by MPs in wake of Brexit ruling, Geoffrey Cox says”.

In a slightly more understated fashion, The Law Society Gazette headed its report with certain exchanges in the Commons Chamber with the headline:

“Supreme Court appointments may need MPs’ approval—attorney general”.

In fairness to the Attorney General, it took a degree of journalistic licence to get from what he said in the Chamber to what was reported. Those headlines arose from exchanges in the Chamber during an urgent question tabled by my hon. and learned Friend the Member for Edinburgh South West.

[John Howell (Henley) (Con)]

Does the hon. Gentleman agree that the independence of our judiciary and the way in which we appoint them is admired right across the world, and that that fits in with our role in the Council of Europe, which is there to uphold the rule of law?

[Stuart C. McDonald]

I agree with the hon. Gentleman wholeheartedly. I will return to that point later. The exchanges that sparked those headlines came when the Attorney General was asked by one of his Back Benchers whether it was time for MPs to get involved in approving appointments at the Supreme Court level. The Attorney General responded:

“I do think that we are going to have to look again at our constitutional arrangements…there may very well need to be parliamentary scrutiny of judicial appointments in some manner.”—[Official Report, 25 September 2019; Vol. 664, c. 666.]

As I said, I think the subsequent headlines required considerable journalistic licence. It would be useful if the same headline writers would publish the subsequent remarks that the Attorney General made during Attorney General’s questions last week, when he said that

“certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements.”—[Official Report, 3 October 2019; Vol. 664, c. 1360.]

Similarly, I welcome the Lord Chancellor’s words this morning at Justice questions in defence of judicial independence and against any notion of political appointments.

With impeccable timing, as soon as I received notification that I had secured this debate, I received a written answer from the Minister—I welcome him to his place—confirming that there were no plans to change the judicial appointments processes. The answer continued:

“Our judges are selected following a rigorous, independent, merit based process which is key to maintaining the quality, integrity and independence of our world class judiciary.”

That answer echoed the point made by the hon. Member for Henley (John Howell).

In the light of all those assurances, I wondered whether it was worth proceeding with this debate, but I think it is. I am grateful to hon. Members for staying to take part. It is still relevant to proceed because, despite the words of the Minister, the Attorney General and the Lord Chancellor, one fairly significant member of the Government does not seem to be singing from quite the same hymn sheet—perhaps not for the first time. Between the Attorney General’s original comments and his clarification, when the Prime Minister was asked about the consequences of the Supreme Court judgment by The Sunday Telegraph, he said:

“It will take a while to be worked through. But I think, if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability.

The lessons of America are relevant.”

Whether the Prime Minister was thinking about putting the UK on the path to a US-style system, under which Supreme Court judges are overtly political appointees, as The Sunday Telegraph interpreted it, only he knows—I very much hope not.

The pot was stirred even more firmly by a former Conservative leader who told The Times at the end of last week that

“more and more people are beginning to ask, with some legitimacy, whether it might be time to hold hearings as they do in America to find out what their political views are and what we can expect. We need to know more about these people.”

I could not disagree more strongly with that statement. A better response to the Prime Minister’s comments came from a former Cabinet colleague of his in an article for The Sunday Times this weekend:

“If he means we should learn from the weaknesses of the US system, he is absolutely right. If he means we should copy that system, he is wrong. It involves far too much political interference in the appointment of judges and also too much judicial law-making.”

My ambition in this debate is, therefore, quite modest: to achieve as broad a consensus as possible, saying clearly and loudly that we believe in the rule of law, the separation of powers and the independence of the judiciary; that our appointments processes must always respect that; and, specifically, that we reject the politicisation of the judiciary, in particular through US-style appointments processes. The Prime Minister and some of the less sensible members of the Conservative party should stop stirring that pot.

I am not saying that the appointments processes in the UK are absolutely perfect, whether through the Judicial Appointments Commission of England and Wales, through its Northern Ireland equivalent, through the Judicial Appointments Board for Scotland or through the appointments commissions that are convened for the purposes of selecting Supreme Court justices. No system is perfect, and they have all been criticised. It is absolutely right that we should keep those systems under review and scrutinise them to ensure that they deliver the appointment of the best judges.

Other hon. Members may want to make suggestions about how we can improve each of those systems, including to better protect judicial independence or to improve the scrutiny and accountability of judges through ombudsman and complaints processes. I have no doubt that more can be done to improve diversity on the bench, for example.

Sharia Law Courts

Debate between John Howell and Stuart C McDonald

Thursday 2nd May 2019 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Hanson, and I congratulate the hon. Member for Henley (John Howell) on having secured this important debate about sharia councils. I take part in this debate with some trepidation, as it is a complicated issue, touching on family law, freedom of religion, culture, gender relations and many other issues in between. It is quite right to say that our response should first and foremost be informed by the experiences and views of those most affected: those are, of course, Muslim women, 90% of whom are seeking a divorce. Their experience of sharia councils varies greatly, which reflects the fact that sharia councils themselves vary significantly. Unsurprisingly there is no unanimous opinion, even among Muslim women, on how—or whether—we in Parliament or the Government should respond to some of the issues that have been raised, both today and in other reports.

I too was a member of the Select Committee on Home Affairs when it was looking at the issue of sharia councils. It was probably one of the most polarised issues that I looked at during my time on that Committee, involving widely diverging and strongly held opinions. On the one hand, at some of the events that the hon. Member for Bradford West (Naz Shah) has described, I spoke to women who were absolutely positive about their experience with sharia councils and how they had secured divorces there; others pointed to horrendous practices and discrimination, which we have heard about.

Dr Siddiqui’s report found similar disparities in practice, but that review, as we have also heard, concluded that banning sharia councils is not a realistic option; I support that conclusion. There is demand for advice and guidance, for determinations on the meaning of religious texts and procedures, and for religious divorce. That review warned that if anything, such a ban would likely drive councils underground, making transparency even more difficult and risking more widespread bad practice and discrimination.

The second issue I want to touch on is how civil marriage law can play a role in this area. I make absolutely clear that I am not a family lawyer, so I will not go into fine detail about the specific proposals for marriage law reform in England and Wales that Dr Siddiqui’s review put forward. However, it does seem—the evidence suggests this—that a significant number of Muslim women in the UK have a religious marriage, but not one that is recognised by the civil law. As we have heard, that seriously limits the options and powers available to women, should that marriage then break down.

However, I went on to the website of Glasgow Central Mosque today to see what options there are for marriage. I was met with a well set-out and positive page that starts by celebrating the fact that

“Family life is a building block of a successful society, and marriage is an occasion of great joy.”

That page goes on to say:

“We can perform religious marriages, which are recognised by the law. A marriage ceremony (Nikah) at Glasgow Central Mosque must also be a religious marriage (i.e. the legal equivalent of a civil marriage conducted by a registrar). Our Imams are authorised to solemnise religious marriages, therefore it is not necessary to have a separate civil marriage. If the civil marriage has already taken place, please bring the marriage certificate on the day.”

I read an article by a Muslim woman who is a solicitor in Glasgow, who wrote about how the culture in the Glasgow mosques is one of working together to ensure that the civil requirements are met at the same time as the religious ones. It seems—of course, I stand to be corrected—that the general practice in that city has become to meet both religious and civil requirements at the same time. It would be good to know how that culture has come about. It would be good to find out what impact that has had on the number of women who are without a civil marriage in Glasgow and Scotland, and whether the doubling-up of those processes has been encouraged or helped by provisions in family law—slightly different in Scotland from those in England and Wales—or whether something else has made that happen. That could inform our thinking, both in Scotland and in England and Wales, as to whether there needs to be legal change or whether we can do more in terms of culture and awareness raising, as the hon. Member for Bradford West has said.

[John Howell]

For many years I have been an organist, and I have played at Catholic weddings. In many cases, the service has been delayed because of the late arrival of the registrar. A marriage conducted by a priest is religiously legal, but in order to make it civilly legal, a registrar has to be there. That seems to be the established position in the Catholic Church; as I understand it, only in the Anglican Church and the Church in Wales is the priest automatically a registrar.

[Stuart C. McDonald]

That is interesting to hear. If there is a way to remove such complications to ensure that such delays can be avoided, it should be looked at. I understand—I repeat, I am not a family lawyer, so I might be completely wrong—that that is not the position in Scotland, where priests are generally able to conduct both the religious and civil ceremonies in one go without the presence of a registrar. To my mind, that clearly makes things simpler.

The second group of recommendations in the Siddiqui report is essentially about empowering women, a topic on which I suspect we will all be at one. That seems to be front and centre of the issue that we face. There absolutely must be awareness raising about rights; for example, many of those who have ended up with a religious but not a civil marriage have done so purely because they did not know about the law or their status.

Awareness-raising about civil rights is only the first step in empowerment. Support is also needed to ensure that all are able to overcome the potentially “huge cultural barriers” described in the report, which can inhibit the exercise of rights even when people are aware that those rights exist. Those barriers stop women choosing to pursue civil remedies instead of religious ones. We need to give greater backing to all the NGOs, advice centres, human rights bodies and others that can provide that support. That is not just about supporting women to overcome barriers; those organisations can help to lower the barriers in the first place, encouraging a culture that respects women who choose to use their civil rights in the first place.

Do we need to go further? That question takes us on to the third group of recommendations in the Siddiqui report. The steps that we have just discussed about empowerment tend to focus on providing alternatives to sharia councils. We also need to ask whether we can improve practices in sharia councils themselves, which is perhaps the toughest issue.

As we have heard, the Siddiqui review recommended a form of regulation via a state-constituted body and a code of practice, and many sharia councils and women’s organisations supported such an approach. Presciently, the report acknowledged that the Government could be reluctant to adopt a wholesale regulatory approach for fear of being seen to legitimise a different system of law. I can understand that response, but it should not be an end to the matter. Not adopting full-scale regulation does not absolve us of the need to look at the seriously bad practices that have been recorded in some cases, how that relates to the law, and whether the law can be changed in other ways to stop those practices. If I understood it correctly, that was what the dissenting opinion in Dr Siddiqui’s report was getting at.

For example, should we require in law that anyone providing advice about family law matters must provide signposting to civil remedies? How should the law respond if an institution is seen to aid and abet domestic violence by coercing a victim to mediate with the perpetrator? Are there existing regulations in respect of “service providers” that could be strengthened and better applied to stop the serious issues that we have seen? What should happen if evidence shows that councils are undertaking tasks that should be exclusively for the courts? Crucially, given that consent is so important, what is the legal response when certain councils are engaging in proceedings, providing opinions and making judgments when there was never genuine consent to the process in the first place? I do not have the answers to all those questions, but we have to consider them and be led by the evidence, particularly the evidence we hear from those who have been caught up in these processes.

On balance the Siddiqui review is correct that banning would be ineffective, counterproductive and not justified. The main objective must be to encourage the use of civil processes and access to civil redress and rights where appropriate. Marriage law changes might help with that, but more importantly, so too might policies that empower women, such as support for NGOs and other groups. While a distinct form of regulation and a complete new regulatory regime may not be the right approach, that does not mean that we should not be looking at whether other civil and criminal laws and regulations could be better applied to stop or prevent some of the bad practice we have heard about. If we do all that, hopefully we can continue to protect the sharia councils that are doing a job that accords with all the values we want to be upheld, while at the same time clamping down on those that are not.

British Citizenship Fees: Children

Debate between John Howell and Stuart C McDonald

Tuesday 4th September 2018 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move,

That this House has considered fees for registering children as British citizens.

It is good to see you in the Chair, Mr Hollobone. I trust that you are feeling suitably refreshed after the summer recess. What better way to start the new term than by seeking to ensure that all children entitled to British citizenship can access it and not be prevented from doing so by an exorbitant Home Office fee?

I thank colleagues from the different political parties who supported the debate application, the Backbench Business Committee for granting the debate, and everyone who has come along to support it. I also thank the 69 MPs, from every political party in the House of Commons, who have signed early-day motion 1262. Finally, I thank all the campaigning organisations that have been working incredibly hard, including the Children’s Society, Coram Children’s Legal Centre, Let Us Learn, the Project for the Registration of Children as British Citizens—PRCBC—and Amnesty International.

What we all seek is utterly reasonable and a very modest proposal. All we are asking the Home Office to do is to put in place a charging regime for registering children as British citizens that is fair and that allows them to access their right to citizenship, rather than one that leaves them to seek various forms of costly and precarious immigration status and sometimes with no status at all.

[John Howell (Henley) (Con)]

The hon. Gentleman may have seen that my right hon. Friend the Home Secretary has announced that he has asked for a review. Does the hon. Gentleman have an idea of what might come of that?

[Stuart C. McDonald]

I hope good things come of the review, but I suspect that the Minister will be in a better position to provide us with answers.

We seek a system that reflects what Parliament intended when it passed the British Nationality Act 1981—that is, a system that makes it easy for kids with the requisite close connections to Britain to exercise their right to British citizenship, not one that makes money out of them by charging what the Home Secretary himself has described as a “huge” sum of money in order to fund other Home Office work. That is the case in a nutshell. In the remainder of my contribution, I plan to look at what Parliament intended for these children when it passed the legislation in 1981 and then to make the case that what the Home Office has put in place undermines rather than implements those intentions.

In 1983, Parliament scrapped the laws that meant that being born in the United Kingdom was in itself enough to make a person British. As well as being born in Britain, a person now also needs to have a parent who is settled or a UK citizen at the time of their birth. That was an understandable step. Many countries, although not all, have done the same. In a world in which people can live in several countries over their lifetime, place of birth is not necessarily the best way to identify a person’s true home country—the country that the person is most closely connected to and that should take them under its wing. However, in taking that step, Parliament was careful and mindful of the fact that it did not want to leave significant numbers of children for whom Britain is home deprived of that citizenship and the protections, security and stability that the anchor of citizenship can provide, which is precisely why it enacted provisions on registration.

British-born kids who were not automatically British at birth are allowed to register as British if they lived in the UK for the first 10 years of their life; either parent settles or becomes British before the kid turns 18; or if the kid was stateless at birth and lived for five continuous years in this country. Citizenship is their right. There is no discretion for the Home Secretary, although the 1981 Act rightly retained a discretion for the Home Secretary to allow other children to register, including those who came here at an early age and are to all intents and purposes British.

We could one day have a different debate on whether the rules are precisely the right ones and whether they draw the lines in the right place, but I think nobody could disagree that this type of rule was essential. The policy reasons behind them were quite right. In ending jus soli or citizenship by birthplace alone, it was vital to ensure that the thousands of kids for whom Britain was and is home should still enjoy that citizenship. The simple fact is that, by setting exorbitant fees, the Home Office is to all intents and purposes undermining Parliament’s intentions. Too many children cannot access citizenship because the Home Office charges what the Home Secretary has acknowledged is a “huge amount” of money.

When the British Nationality Act came into force in 1983, the fee set for registration applications was £30. In today’s money, that is almost exactly £100. For a quarter of a century, the fee simply represented the administrative cost of processing an application, but from 2007 the Home Office started charging more than the administrative cost. Accelerated increases mean that we have reached the “huge amount” of just over £1,000. The Home Office estimates the cost of processing an application to be £340, so it is creaming off £672 every time a child seeks to access their entitlement to citizenship.