There have been 13 exchanges between Nick Thomas-Symonds and Attorney General
|Mon 22nd June 2020||Extradition (Provisional Arrest) Bill [Lords]||3 interactions (1,694 words)|
|Thu 3rd October 2019||Oral Answers to Questions||5 interactions (177 words)|
|Wed 25th September 2019||Legal Advice: Prorogation||3 interactions (329 words)|
|Fri 29th March 2019||United Kingdom’s Withdrawal from the European Union||35 interactions (1,668 words)|
|Tue 12th March 2019||Withdrawal Agreement: Legal Opinion||3 interactions (778 words)|
|Tue 19th February 2019||Northern Ireland Backstop (Urgent Question)||6 interactions (383 words)|
|Tue 15th January 2019||European Union (Withdrawal) Act||23 interactions (2,072 words)|
|Mon 3rd December 2018||Withdrawal Agreement: Legal Position||7 interactions (1,055 words)|
|Tue 13th November 2018||EU Withdrawal Agreement: Legal Advice||3 interactions (1,070 words)|
|Tue 15th May 2018||Public Legal Education (Westminster Hall)||9 interactions (1,363 words)|
|Thu 10th May 2018||Belhaj and Boudchar: Litigation Update||3 interactions (435 words)|
|Wed 6th December 2017||Unduly Lenient Sentences (Westminster Hall)||10 interactions (894 words)|
|Thu 29th June 2017||Oral Answers to Questions||5 interactions (146 words)|
(3 months ago)Commons Chamber
I beg to move, that the Bill be now read a Second time.
I will start by making clear what the Bill does not do. It does not change our extradition process or any safeguards that already exist in extradition proceedings. It does not make it more or less likely that a person will be extradited, and it does not in any way affect the current judicial oversight of the extradition process, or the character of core proceedings. Nor is the Bill concerned with the UK’s extradition relationships with other countries, or the criminal behaviours for which extradition can be sought from the United Kingdom. The Bill is concerned only with how persons who are wanted for crimes enter the UK’s court system. It changes when and how a fugitive who is wanted for a serious offence by a trusted country is brought before a UK court.
Currently, when UK police have a chance encounter with a person who is wanted by a non-EU country, they cannot arrest them. The officer is required to walk away, obtain a warrant from a judge, and then try to relocate the individual later to make the necessary arrest. That means that fugitives who are known to the police to be wanted for serious offences remain free on our streets and are able simply to abscond or, worst of all, to offend again, thereby creating further victims.
Let me give you a shocking example, Madam Deputy Speaker. In 2017, an individual who was wanted by one of the countries within the scope of this Bill for the rape of a child was identified during a routine traffic stop. Without the power to arrest, the police could do nothing to detain that individual there and then, and he is still at large. The Bill will change that and ensure that fugitives who are wanted by specified countries, and then identified by the police or at the UK border, can be arrested immediately. They can be taken off the streets and brought before a judge as soon as it is practicable to do so.
The usual way that police officers become aware of an international fugitive is after a circulation of alerts through Interpol channels. Interpol alerts from all countries are now routinely available to UK police and Border Force officers. Access to that information by frontline officers has created a situation whereby a police or Border Force officer might encounter an individual who they can see, by performing a simple database check, is wanted by another country for a serious offence. Many countries, including most EU member states, afford their police the power of immediate arrest on the basis of Interpol alerts, and this Bill will create a similar power with appropriate safeguards. That power will apply only to alerts from countries with which we already have effective extradition relationships, and—crucially—when we have confidence in their use of Interpol.
The warrant-based system in part 1 of the Extradition Act 2003 carries an immediate power of arrest for individuals who are wanted by EU member states. Last year, more than 60% of arrests made under part 1 of that Act by the Metropolitan police were the result of a chance encounter. Without a similar immediate power of arrest for people wanted by our key international partners, known fugitives will walk free.
Let me turn to the specific provisions in the Bill. It proposes a power for UK law enforcement officers to arrest an individual on the basis of an international arrest request—typically an Interpol alert—without a UK warrant having first been issued. The new power will apply only when the request has been issued by specified countries with which we already have effective extradition relationships and in whose use of Interpol and the alerts that they issue we have confidence. Initially, the power will apply to requests from the United States of America, Canada, Australia, New Zealand, Liechtenstein and Switzerland.
Members will appreciate that we have taken care to tune the application of the powers to strike the right balance between ease of use by our law enforcement agencies and the provision of proper safeguards to those who might be arrested. The Bill will identify a designated authority, which will have the power to create an alert—typically an Interpol notice—only when it relates to a serious extradition offence. In practice, that will mean three things: first, the offence for which the person is wanted must be an offence in one of the United Kingdom’s jurisdictions; secondly, the offence must be able to attract a period of imprisonment of at least three years; and finally, the offence must be a serious one—that is, the seriousness of the conduct constituting the offence makes the certification appropriate.
What is intended by “serious” in this context is reflected by the proportionality assessment in section 21A of the Extradition Act 2003, which similarly refers to
“the seriousness of the conduct alleged to constitute the extradition offence”.
Operational bodies are well versed in applying the test in their consideration of other cases, and they can bring to bear considerable expertise in exercising the new power.
It is not frontline police officers who will have to decide whether an Interpol alert is from a specified country or for a sufficiently serious offence. The National Crime Agency receives Interpol requests and, as the designated authority, it will identify which alerts have been issued by a specified country and for a sufficiently serious offence. Arrangements are in place to ensure that, when the agency is satisfied, the request is underpinned by a warrant for arrest or conviction in the requesting country. The NCA will then certify that those alerts, including the immediate power of arrest, will apply. Certified alerts will be clearly distinguishable on the databases available to police and Border Force officers. Following arrest, the individual must be brought before a UK judge as soon as practical.
The Bill does not change any other part of the subsequent extradition process, and all the safeguards that currently exist in extradition proceedings, as set out under part 2 of the Extradition Act, will continue to apply. The courts will have the same powers and protections they have now—including the fact that they must ensure that a person will not be extradited if it would breach their human rights, if the request is politically motivated, or if they would be at risk of facing the death penalty.
The need for the power has been expressed by the law enforcement community. Members will be interested to know that the Director of Public Prosecutions, Max Hill, QC, wrote to my right hon. Friend the Minister for Security on 2 March to explain why the power is needed; I will place his letter in the Library of the House. We will continue to strengthen our security with like-minded security partners across the globe. In future, additional countries could be specified if we have effective extradition relationships with them; if—crucially—we have confidence in their use of Interpol alerts; and if Parliament agrees to the extension of the arrangements to those countries.
Scrutiny of the Bill in the other place has served to improve it; however, two amendments were made on Third Reading that the Government have considered carefully but do not support. The first requires the Government to consult on the merits of adding, removing or varying a territory in the Bill with the devolved Administrations and relevant interested stakeholders; requires the Government to lay a statement before Parliament on the risks of adding, varying or removing a territory; and requires the Government, when a territory is to be added to the Bill, to lay a statement before the House to confirm that that territory does not abuse the Interpol system.
That amendment is not necessary. The Bill mirrors the existing provisions in the Extradition Act 2003 in respect of the designation of any additional countries, and the Government are committed to ensuring that Parliament has the ability to question and have the final say on whether any new territory should come within the scope of the legislation. Also, although extradition is a reserved matter, relevant officials are engaged in regular discussions with their counterparts in the devolved Administrations about how it should operate in practice.
The second amendment specifies that if a Government want to add territories to the legislation in future, they would not be able to add more than one country in a single statutory instrument. Similarly, we consider that that is not required and is unnecessarily burdensome. Again, the Bill already mirrors the existing provisions in the Extradition Act 2003 in respect of the designation of any additional countries. Including any additional countries in the Extradition Act is subject to a high level of parliamentary scrutiny and, similarly, there would be the opportunity for both Houses to debate and scrutinise proposals in relation to any new territory to which the provisions in this Bill might be extended. If the Government of the day were minded to make the case to Parliament that this legislation should be extended to six new countries, what specific value is added by considering six separate statutory instruments to do so? For those reasons, the Government do not feel these amendments will add further scrutiny to the legislation than is already in place, and therefore believe they should be reviewed during its passage through this House.
To conclude, I would like to reiterate the point I have made throughout my remarks. The Bill is first and foremost about protecting the UK public. Any individual arrested under the powers contained in it would be in front of a UK judge as soon as reasonably practicable, and the existing safeguards afforded to every person before the UK courts for extradition would remain as now. As a global leader in security, we want to make the best use of our overseas networks and international tools to protect our nation from those who would do it harm. The Government are committed to doing all we can to protect the public. This Bill is directed to that end, and I commend the Bill to the House.
I agree with the shadow Home Secretary that this legislation fills a gap. It is a really important, sensible, sound and sober piece of legislation that meets a need and builds on our existing tried and tested relationships with valued partners across the globe. It is limited in scope and tightly focused, and the amendments passed in the other place to ensure that people should be brought to a judge as soon as possible are incredibly sensible, understanding the geographical nature of our country and addressing clause 39 of Magna Carta—no imprisonment without due legal process.
The Bill addresses a real need to get people off the streets as quickly as possible. The most interesting part of the Bill has been that most extradition seems to revolve around chance encounters; as the Minister said, 60% of people just happen to be stopped in traffic incidents or other minor legal infractions. I am particularly glad that this legislation will enable us to get those people to speedy justice, rather than allowing them to slip through the net for something that might not have been a crime that they would otherwise be arrested for. I am also glad that it does not change any safeguards in our extradition practices; that is a fundamental underlying principle of this legislation. As the legislation only applies to people whose crimes would lead to a sentence of over three years, and is considered a serious offence in the UK, there are quite clearly sensible safeguards in place to protect people.
This piece of legislation is not before time, and I welcome the fact that speedy extensions can be made to new countries via statutory instrument with the appropriate safeguards in place, rather than having to go back to primary legislation. I support the Bill and look forward to its speedy passage through the House.
I have not seen the response to which the hon. Gentleman refers, but I can certainly confirm that the Government will comply with the law. I am not convinced that the Prime Minister said anything contrary to that; I would have to look at Hansard.
The hon. Gentleman has read it out, and he does not need any confirmation from me. He is a superbly competent lawyer—[Interruption.] So I am told by others on his side of the House. The reality is that the Government will comply with the law.
I certainly can say to my right hon. and learned Friend that it is important when we reflect on judgments that may be seen to go against the short-term interests of any particular Government that we remember that they stand as precedents and principles for the future. I invite all my hon. Friends to reflect on precisely the situation that my right hon. and learned Friend has set out before the House, which is that this would stand for Governments of a colour of which those on my side would not approve and for their actions too. It is important that when we comment on the decisions of judges we remember that those judges are both impartial and independent, and they are entitled to reach the view that they have reached. We are fortunate in this House to have one of the finest judiciaries, I believe, in the world, and it is important to remember that the principles they set apply to both sides, as my right hon. and learned Friend has said.
I do not know whether in the hon. Gentleman’s practice at the Bar he felt that just because he had given advice that might not have been upheld by a court he had no credibility. That is an absurd and ridiculous proposition. Furthermore, it was advice that was agreed with by the first instance court in Scotland and by the Lord Chief Justice of England. Is the hon. Gentleman calling for his resignation as well? Is he calling for the resignation of the Master of the Rolls? Is he calling for the resignation of the President of the Queen’s bench division? Is he calling for the resignation of Lord Doherty? [Interruption.]
I must make some progress. I am very conscious that it is Friday and that we need to move forward as swiftly as we can.
The House can take a single, decisive step today to afford certainty to the millions of people throughout this country who are waiting for it and to have a short—not prolonged—extension that will bring our exit from the European Union to 22 May. There will be no further uncertainty. The political declaration can be resolved in that time. The ratification of the Bill can proceed with any amendments that might be forthcoming in connection with the subsequent negotiating stage.
I submit to the House the responsible thing. I ask the House to consider and reflect carefully, because what we have before us today is the legal right to extend. No other extension is guaranteed; every other extension would require European parliamentary elections, as the right hon. Member for Leeds Central (Hilary Benn) said. We are therefore at an important crossroads for the purposes of this nation’s future and its history, and I urge all Members of his House to embrace this opportunity now, when this withdrawal agreement, in its substance, is in no way objectionable to any Member willing to consider moving forward with it. In those circumstances, what conceivable point can there be now in not embracing this agreement, subject to further discussions on the political declaration? I urge the House to vote for this agreement.
The fact is that the withdrawal agreement would be accepted by the European Union—that is the first point. The second point is that it sorts out the implementation period and the money and, crucially, that it guarantees citizens’ rights for my constituents, EU nationals and Brits abroad. Which of those factors does the hon. Gentleman actually disagree with? The answer is none.
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I thank my hon. Friend for giving way. He is making excellent points and, in the process, demolishing the premise of the Attorney General’s request to the House today. The Attorney General did not take my intervention, but in his speech he promised mechanisms and processes to Parliament to guarantee a future say. We acted in good faith on section 13 of the European Union (Withdrawal) Act 2018, which put both these things together. With the Government today undermining that mechanism, why should we trust a word the Attorney General says?
In the cul-de-sac of certainty that the Government are announcing today, is it not possible that they might seek to appeal or revoke section 13 at some date, which would get them out of their problem?
I am grateful to my five-a-side colleague for giving way. Will he kindly tell us: which bits of the withdrawal agreement does he disagree with?
People outside this Chamber will rightly wonder what on earth is going on today, so can my hon. Friend confirm, for the benefit of my constituents and the rest of the country, that the Labour party has voted repeatedly for Brexit, but for a different deal—for a Brexit that supports and protects jobs and workers? If the Conservatives would move their red lines a bit, we could honour the result of that referendum, as we all want to do.
Does the hon. Gentleman agree that what we have heard today from the Attorney General is an attempt to dress up political shenanigans as a requirement to secure legal certainty, when in actual fact what the Government are trying to do is solve the Tory party’s political problems so that they can usher in an unelected right-wing Prime Minister to negotiate—[Interruption.] Shut up! [Interruption.]
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Perhaps hon. Members on the Government Benches would like to go and join the mob outside. What this is about today is an attempt to solve the Conservative party’s political problems and usher in a right-wing, unelected Tory Prime Minister to negotiate a Canada-style free trade agreement and a workers’ rights-free Singapore-style economy.
I will take no lectures from the SNP, who failed to vote for a customs union that could have created the conditions for a compromise. Can my hon. Friend confirm that it is entirely conceivable—[Interruption.]
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It is entirely conceivable that the motion could be voted through today, but then when we are required to bring forward the meaningful vote, the exact same legislation could be voted down. What type of constitutional crisis would that create?
I am very grateful to the hon. Gentleman for giving way. It was the EU Council itself that separated these two strands of the process. Both strands have to be delivered. The letter that he referred to from Presidents Tusk and Juncker, while referring to both parts of the package, in no way suggested that they had to be voted upon on the same day or simultaneously. May I put it gently to the hon. Gentleman that he is dancing on the head of a pin to provide a fig leaf?
I thank my hon. Friend for giving way. As always, he is giving a fine performance at the Dispatch Box highlighting the Labour party’s position, but could I seek from him two points of clarity? As was made clear by my hon. Friend the Member for Ashfield (Gloria De Piero), the Labour party has on numerous occasions put forward what we consider to be an acceptable form of Brexit. If the Prime Minister were to relent on her red lines and accept that form of Brexit, and the Labour party were to consider that acceptable, can he confirm for me whether the Labour party would still consider that deal as requiring a confirmatory public vote? Secondly, when this deal fails this evening, our choice on 12 April will be no deal or a lengthy extension. Can he outline for me what length of extension the Labour party will be seeking and for what purpose?
Order. Mr Seely, calm yourself. Your attempt to intervene was politely rejected. Do not holler across the Chamber, man. Calm yourself—Zen.
In my view, as a matter of law, the provisions relating to the timing of the efforts to be made in resolving withdrawal agreements make time of the essence in the negotiation of a subsequent agreement. A doctrine with which the lawyers in the House will be familiar is of legal relevance. In my opinion, the provisions of the joint instrument extend beyond mere interpretation of the withdrawal agreement, and represent materially new legal obligations and commitments which enhance its existing terms.
Let me now turn to the unilateral declaration. It records the United Kingdom’s position that, if it were not possible to conclude a subsequent agreement to replace the protocol because of a breach by the Union of its duty of good faith, it would be entitled to take measures to disapply the provisions of the protocol in accordance with the withdrawal agreement’s dispute resolution procedures and article 20, to which I have referred. There is no doubt, in my view, that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration provide a substantive and binding reinforcement of the legal rights available to the UK in the event that the Union were to fail in its duties of good faith and best endeavours.
I have in this statement, and in the letter that I have published today, set out, frankly and candidly, my view of the legal effect of the new instruments that the Government have agreed with the Union. However, the matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed.
The hon. Gentleman asks me about my opinion. He knows that my opinion is that there is no ultimate unilateral right out of this arrangement. The risk of that continues, but the question is whether it is a likelihood, politically. One thing that we did not hear from him is what the Labour party’s position is on the backstop. Does they accept the backstop? Do they think it is a good thing? If they think it is a good thing, why on earth are they criticising it? Or is this just the usual political opportunism that one expects to hear from the Front Bench of the Labour party?
The hon. Gentleman says to me that there is nothing new in this agreement, but that is not so, and some of the authorities that he has quoted are saying that this morning. There are material new obligations—for example, in relation to alternative arrangements. There is now a heavy emphasis upon a swift and expedited track to negotiate them, and it would be unconscionable if, having made that emphasis and having said that time was of the essence, the European Union simply refused to consider or adopt reasonable proposals relating to alternative arrangements. That is new. What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. This makes significant reductions in that risk.
I say to the hon. Gentleman that it would be a good thing if we could hear from the Labour party just occasionally not only political shenanigans but some sincere engagement with the real issues that this withdrawal agreement now raises. The question now is: do we assume our responsibilities as a House and allow not only this country—yearning as it is for us to move on—but the entire continent of Europe to move on? To do that, the time has come now to vote for this deal.
Before I answer the hon. Gentleman, my constituents would expect me briefly to express their dismay and deep concern about Honda’s announcement this morning, which will deeply affect the community. I anticipate the statement of my right hon. Friend the Secretary of State for Business, Energy and Industrial Strategy—
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I am very sorry, Mr Speaker, but I said what I said.
The Government recognise the legitimate desire of Members on both sides of the House to understand the legal effect of the proposed withdrawal agreement. On 12 February, the Prime Minister set out ways in which legally binding changes to the backstop could be achieved. She explained that the UK and the EU would hold further talks to find a way forward. Those discussions are ongoing, and it would not be appropriate to provide a running commentary.
What would be reckless and irresponsible is for the Government to provide a running commentary on sensitive negotiations. I would have thought it is as plain as a pikestaff to the hon. Gentleman that that is not the way negotiations should be conducted. Let the Government get on with this work at pace, which is what we are doing.
Rather than criticising from the sidelines, it now behoves the hon. Gentleman and all Opposition Members to work for a constructive solution and end the uncertainty. It is in his hands as much as it is in the hands of the Government.
I say to the House with the greatest respect, we must seize this opportunity now. This is the key—the first of two—by which we unlock our future outside the European Union. I believe that it is an exciting future. I believe that the opportunity for this House to hold the pen on 40% of our laws, from the environment through to agriculture and fishing, should excite us as an opportunity to do good in this country.
Let us not forget, however, that many outside this House as well as in it wish to frustrate the great end to which the people of this country committed us on 23 June 2016—17.4 million of them in hundreds of constituencies, regardless of party, voted to part company with a political structure that no longer commanded their assent. We should be deeply grateful, because in other ages and other places, such a moment could only have been achieved by means that all of us present would deplore—but we should not underestimate the significance of the moment because it was expressed peacefully by the ballot.
If we approve this agreement, we know that we shall leave the EU on 29 March in an orderly way, and can commence negotiation of the permanent treaties. This agreement and the accompanying political declaration are the two keys that unlock the demand of the electorate that we should repatriate control over vast areas of our laws that hitherto have been in the exclusive legislative competence of the EU. If we do not take that first step, history will judge us harshly, because we will be plunged into uncertainty.
If this vote fails today, those who wish to prevent our departure will seek to promote the conclusion that it is all too difficult and that the Government should ask the electorate to think again. That is why former Prime Ministers and their spin doctors, and all their great panjandrums of the past, are joining the chorus to condemn this deal, for they know that this deal is the key. There is no other. Destroy it—in some form or other, the only practicable deal—and the path to Brexit becomes shrouded in obscurity. If we should be so deceived as to permit that, when historians come to write of this moment, future ages would marvel that the huge repatriation of powers that this agreement entails—over immigration, fisheries, agriculture, the supremacy of our laws and courts—was rejected because somehow it did not seem enough and because of the Northern Ireland backstop.
Name me a single other country that is in a customs union with the EU that has a say over trade deals. Is not this an unprecedented legal and political novelty of the kind that is rightly called a unicorn?
May I inform the hon. Gentleman—I am sure he already knows—that the vast majority of farmers, businesses, fishermen and community leaders in Northern Ireland strongly support this deal negotiated by the Government? I heard his warm words about his support for the Good Friday agreement, but actions speak louder than words. Voting down the Brexit deal tonight will be a clear signal that the Labour party does not care about the consequences for the Good Friday agreement.
The hon. Gentleman is making a case about trust, and that is what the country is being asked to do—make this great leap of faith. We do not know what our future trading and security relationships will be. The sorry story is that all the way through the past two and a half years we have had a series of promises that have not been delivered. He will remember, for example, the then Secretary of State for Exiting the European Union, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), saying at the Dispatch Box that we would have a deal before we left that would convey the “exact same benefits” of our current membership of the single market and the customs union. That is what is troubling people. This is a blindfold Brexit and that is why people will not vote for it.
That point is exactly at the heart of this question of trust. The Attorney General just committed the EU to not agreeing to future trade deals, in response to our request for a customs union, but he refused to say—the Government still refuse to do so—whether the Government will commit to a customs union in that future trade agreement. If they were to do so, there would be no need for this discussion about the backstop or about the matter of trust that the right hon. Member for Broxtowe (Anna Soubry) talked about.
We have talked about trust and promises, which are vital. We promised to deliver on the outcome of the referendum. It was this House that gave the people the referendum in the first place. We passed our sovereignty to the people and promised that we would deliver on their verdict. That verdict was to leave the European Union. Does not the hon. Gentleman believe that if we failed to deliver on that verdict, it would be seen as one of the greatest betrayals of trust in this country?
Order. The first of the approximately 70 Members wishing to speak from the Back Benches is the Father of the House, Mr Kenneth Clarke.
It is very good of the Prime Minister to warm up for me today.
With permission, Mr Speaker, I wish to make a statement to the House. I should make clear the context in which I consider that I am to do so today; my statement is intended to inform the debate that is shortly to commence on the motion to approve the withdrawal agreement and the political declaration on the future relationship concluded with the European Union by my right hon. Friend the Prime Minister.
It is important to understand how the Law Officers habitually give their advice, which may be a mixture of oral and written communications given at different times during fast-developing events. Ministers are advised by their own departmental lawyers, and the points that arise for consideration of the Law Officers are invariably limited to the relatively few of particular importance to the policy decision of the Government. Therefore, my statement today is complemented by a detailed legal commentary, provided for the purpose of the debate and published this morning, that analyses the effect of the agreement as a whole. That legal commentary has been produced with my oversight and approval, and I commend it to the House as both an accurate examination of the provisions of the agreement and a helpful exposition of some of the salient issues that arise from them.
There is, of course, no want of other sources of helpful commentary available to the House, and in making this statement in these unusual circumstances and in answering any questions that hon. Members may have, I consider that I have a solemn and constitutional duty to this House to advise it on these legal questions objectively and impartially, and to place such legal expertise as I have at its disposal. The historical precedents strongly support that view. The House may be sure that I shall discharge this duty with uncompromising and rigorous fidelity. If this agreement is to pass this House, as I strongly believe it should, I do not believe that it can or should pass under any misapprehension whatsoever as to the legal matters on which that judgment should be based.
It is important to recall that the matters of law affecting the withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed. In the time available to me, it is impossible to have covered each of the matters of law that might arise from 585 pages of complicated legal text, and no Attorney General—certainly not this one—can instantly possess the answers to all of the pertinent questions that the skill and ingenuity of hon. Members may devise.
However, I am aware that there are certain parts of the agreement the meaning of which attracts the close and keen interest of the House, and it is to some of these that I now turn: first, the Northern Ireland protocol and some of the other provisions of the withdrawal agreement relevant to it. The protocol would come into force, if needed, on the conclusion of the implementation period on 31 December 2020 unless, pursuant to article 132 of the agreement, both the UK and the EU agreed to a single extension for a fixed time of up to one or two years. By article 1, the protocol confirms that it would affect neither the constitutional status of Northern Ireland nor the principle of consent as set out in the Belfast or Good Friday agreement. The statutory guarantee that a majority in Northern Ireland would be required to consent to a change in its constitutional status as part of the United Kingdom and the associated amendment to the Irish constitution to remove its previous territorial claim remain in place.
Once in force, by article 2.1 of the protocol, the parties would be obliged, in good faith, to use their best endeavours to conclude by 31 December 2020 an agreement that supersedes it. There is a separate but closely related duty on the parties under article 184 to negotiate expeditiously and use best endeavours in good faith to conclude an agreement in line with the political declaration. Having regard to those obligations, by article 1.4 of the protocol, it is expressly agreed not to be intended to establish a permanent relationship but to be temporary. That language reflects the fact that article 50 of the Treaty on European Union does not provide a legal basis in Union law for permanent future arrangements with non-member states.
If either party did not comply with its obligations of good faith after the implementation period, it would be open to them to bring a complaint under the dispute settlement provisions set out in articles 164 to 181 of the agreement. These include independent arbitration. Clear and convincing evidence would be required to establish a breach of that obligation. If the protocol were to come into force, it would continue to apply in international law unless and until it was superseded by the intended subsequent agreement which achieved the stated objectives of maintaining the necessary conditions for continued north-south co-operation, avoiding a hard border and protecting the Belfast agreement in all its dimensions.
There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down. How likely that is to happen is a political question, to which the answer will no doubt depend partly on the extent to which it is in either party’s interests to remain indefinitely within its arrangements.
Under the protocol, the UK would form with the EU a single customs territory for goods for fiscal or tariff purposes. Accordingly, Northern Ireland would form part of the same customs territory as Great Britain, with no tariffs, quotas or checks on rules of origin between Great Britain and Northern Ireland. However, Northern Ireland would additionally apply defined aspects of the EU’s single market rules relating to the regulation and control of the supply of electricity on the island of Ireland; goods, including cross-border VAT rules; and the EU customs code. Those rules would be enforced as they are now, including preliminary references from Northern Ireland courts to the Court of Justice of the European Union.
By those means, the need for any hard border would be avoided, and goods originating in Northern Ireland would be entitled to free circulation throughout the EU’s single market. In all other respects of its regulatory regime, Northern Ireland would follow the applicable UK legislation, save where those were devolved. By article 7, a Northern Ireland business would also enjoy the same free circulation of its goods throughout the United Kingdom, while its EU competitor—whether situated in the Republic of Ireland or elsewhere in the single market—would not.
I turn to the role of Union law and the CJEU under the withdrawal agreement and within the dispute settlement provisions. It is important to place these provisions in the context of the objectives of the agreement, which is the orderly exit of the UK from the EU for our citizens and businesses. To that end, following the implementation period, the agreement provides for the continued application of Union law in defined and strictly limited respects, where it is necessary or desirable for legal certainty to do so.
Although we will legally leave the EU and cease to be a member state on 29 March 2019, part 4 of the agreement provides for an implementation or transition period of 21 months, which is designed to enable our people and our businesses to adjust to the changes that are coming. During that implementation period, so as to give the time, predictability and continuity that is needed, it is provided that Union law should continue to apply, and the laws, systems and institutions of the EU will have the same role and functions as before.
But on the conclusion of that period, on 31 December 2020, that will come to an end. Thereafter, Union law and the Court of Justice will possess a relevance in the United Kingdom only in so far as it is necessary, in limited and specific areas, for the winding down of the obligations of our relationship of 45 years. For example, the rights of our own citizens living in EU member states and of EU citizens in the United Kingdom are created and defined by Union law. If they are to be preserved in equal measure and with the necessary consistency and certainty, it is inevitable that the mutually protected residence and social security rights of those particular groups of people must continue to be defined by reference to that law. Those rights are provided for in part 2 of the agreement.
Our citizens living in member states throughout the EU will continue, as is natural, to depend for their ultimate protection on the CJEU, while EU citizens living in the United Kingdom will look to the UK independent monitoring authority set up under article 159 and to the UK courts. But they will no longer be able, as now, to require our Supreme Court to refer a question of interpretation of their rights under Union law to the CJEU where the determination of such a question is necessary to resolve a dispute.
Instead, pursuant to article 158, the UK courts, for a fixed period of eight years only, may refer—I repeat, may refer—to the CJEU a question of interpretation of part 2 of the agreement in the interests of achieving consistency in the enforcement of the rights of citizens while the new system is established. After that time, our courts will, pursuant to article 4.5, continue to interpret concepts and provisions of Union law in the areas in which the agreement applies it as they always have, and to have due regard to relevant post-implementation case law where, for example, it may be required for the practical operation of the agreement, such as in regard to the co-ordination of social security rights for the protected EU and UK citizens.
Part 3 deals with the lawful conclusion of judicial and administrative proceedings, transactions, processes and other matters that have arisen or commenced under Union legal frameworks before the end of the implementation period, and to which Union law and the role of institutions must continue to apply for their orderly disposition. It allows a four-year limitation period on the power of the Commission to refer to the Court an alleged breach of an obligation incurred prior to the end of the implementation period.
Part 5 deals with our agreed financial obligations. It provides, under article 160, for Union law and the jurisdiction of the Court to apply beyond the implementation period only for the time and purpose of closing out the UK’s financial obligations and entitlements incurred under Union law, again prior to the end of that period.
All of these are inherently time-limited functions, and once they are at an end the Court will have no jurisdiction in relation to disputes involving citizens and businesses in the United Kingdom. A dispute between the EU and the UK about the systemic operation or interpretation of the agreement may be referred by either side to an independent arbitration panel in which the Court has no automatic role, but if the panel needs to and a question of interpretation of Union law is relevant to the dispute, it can ask the Court to resolve that question. It is then for the panel to apply that interpretation to the facts of the dispute, and thus decide how the dispute should be resolved.
The divorce and separation of nations from long and intimate unions, just as of human beings, stirs high emotion and calls for wisdom and forbearance. It calls also for calm and measured evaluation by the House of the terms of the separation agreement in the light of the complexity and difficulty of the task it is intended to achieve. The gradual loosening and removal of the legal ties that have bound us to the European Union for 45 years will take time to work out. This agreement and the European Union (Withdrawal) Act 2018, already passed by the House, allow for the necessary time and legal means for that process to unfold in a peaceful and orderly way.
I am at the disposal of the House to answer questions, in so far as I can, on these and other legal matters. I commend this statement to the House.
First, let me say to the hon. Gentleman that he has far better than any advice I may or may not have given to the Government: he can ask me. All he has to do is ask and he will receive, because I will give him a frank answer. [Interruption.]
Break in Debate
No, I do not believe that that is the case. Once it became de facto the subsisting and permanent arrangement, in that there was no prospect of agreement because negotiations had broken down, it would be severely vulnerable to challenge, because it is widely understood that article 50 cannot be a proper basis for any sort of permanent or enduring arrangement. The fact of the matter is that it would be extremely vulnerable to legal challenge.
I am grateful to the hon. Gentleman for his point of order and for his characteristic courtesy in giving me advance notice of his intention to raise it—[Interruption.] I shall ignore the sedentary chuntering, which is undertaken for no obvious benefit or purpose. I have only just seen the letter to which the hon. Gentleman refers. I shall give it immediate attention when I leave the Chair. Having sat through these exchanges, I intend to come to a rapid decision, which I will convey to the House before it rises tonight, or, if that proves impossible, at the earliest opportunity tomorrow. I hope that that is helpful to colleagues.
It is always a pleasure to follow the hon. Member for Witney (Robert Courts), who speaks eloquently and courteously, as always, although I disagree with him on this occasion. I rise to support the Labour party’s motion. In doing so, I declare an interest. Like many who have spoken in this debate, I have previously acted as a Government lawyer. I was a standing junior counsel to the Scottish Executive—as they used to be known before my colleagues came to power and changed the name to the Scottish Government, and quite right, too—and have acted as Crown counsel and one of the Lord Advocate’s deputies.
I understand the particular concern that Government lawyers have, but I have also acted for members of the public. I know there is a balance to be struck and that the interests of the Government are not always synonymous with the public interest. In this particular case, I do not think the interests of the Government are synonymous with the public interest.
My hon. Friend the Member for Glenrothes (Peter Grant) has already referred to the difference between the ministerial code in the United Kingdom and the ministerial code in Scotland on the disclosure of legal advice. The UK Cabinet Office ministerial code says:
“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”
That is an important qualification, and I will come back to what “Erskine May” says in a second.
By contrast, the ministerial code in Scotland has a section about exceptions to the convention of not disclosing legal advice:
“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”
The ministerial code in Scotland envisages that there can be disclosure in exceptional circumstances. Having regard to what “Erskine May” says, and having regard to some of the precedents we have discussed today, I would suggest that that, in effect, is what is recognised by this House. “Erskine May” says that
“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence…and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding.”
“Erskine May” recognises that the UK Government can make the sort of exception that the Scottish Government are entitled to make in exceptional circumstances, and some historical precedents have already been mentioned today.
What I am saying is that these are exceptional circumstances. Again, as my hon. Friend the Member for Glenrothes said, another parliamentary convention has already been ridden over roughshod in relation to Brexit. The Sewel convention states that normally the Scottish Government should be consulted. The Government have said this is not a normal situation, and they may well be right. Of course, there is great legal debate about what “normally” means in the Sewel convention but, by the Government’s position, we are not in normal times. No, we are in exceptional times. Even if there were no precedent—and there are precedents—it would be appropriate for the Government to publish their legal advice on the finalised deal, if there is one, in full.
In this event, very unusually, I find myself in agreement with DUP Members. The people of Northern Ireland have a right to know this advice in full, as do the people of Scotland, England and Wales. It is this House that will make the decision on whether or not to accept that final agreement, not the Government. They are in danger of mixing up the functions of the Executive and the legislature in relation to Brexit.
Reference has been made to the case in which I am a petitioner, and which is going to the European Court of Justice, on the question of the unilateral revocability of article 50. The Government have fought that case tooth and nail, because they say it is up to them whether or not to revoke article 50, but the highest court, Scotland’s supreme court, has said, “No, it is up to this Parliament.” Just as it will be up to this Parliament whether to revoke article 50, it is up to this Parliament whether or not to accept the deal, so this Parliament should be given the advice that the Cabinet has been given. That is why I cannot agree to the compromise put forward by the Government Front Bencher, because it is a matter of trust now. As has been said by the hon. Member for Pontypridd (Owen Smith), the referendum in 2016 was won on the back of what we now know to have been some lies, some misinformation and, in some cases, breaches of electoral law. Unlike in the Scottish independence referendum, there was no prospectus as to what Brexit would look like. People have lost trust in the process. If trust is to be won back, this Parliament and indeed the people must be fully informed about the deal that is reached before the final decision is made to endorse the deal.
Legal privilege can be waived by the client, and that is what we are asking the Government to do. In the public interest, in these exceptional circumstances, we are asking them to waive that privilege. I am conscious that I have less than a minute left, but on the compromise offered from the Government Front Bench, I have three specific questions I would like the Solicitor General to answer. First, will what the Government are offering be made available to the devolved Governments? Secondly, how much detail will be in the legal advice that they are going to put forward—will it be sufficient for those of us who are going to be looking at it carefully to take an alternative opinion on it? Thirdly, if the Attorney General is going to come to this House to answer questions on it, will he give answers that are meaningful? Ministers so often do not give us a meaningful answer. In addition, will the Government allow a reasonable amount of time to elapse between the provision of their written document and the oral statement, so that the written document can be studied in order that properly informed questions may be asked?
It is more than a pleasure—it is a privilege—to speak at the end of this well-informed, wide-ranging and important debate. May I pay tribute to my right hon. Friend the Chancellor of the Duchy of Lancaster for, in the right spirit, reaching across and making a proper and considered offer with regard to the Government’s position? His contribution reflected very much the careful and deliberate argument of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), who rightly, and perhaps almost inevitably—he will forgive me for saying that—moved away from the wide-ranging terms of the motion and very clearly set out his and his party’s position with regard to the subject matter that he and other Opposition Members wish to deal with.
The hon. Member for Torfaen (Nick Thomas-Symonds) rightly explained the context of the debate. This is an extraordinary time in our nation’s history, with grave decisions to be made by this place that will affect the lives of all of us. I readily accept all that, but I do hope that hon. and right hon. Members will forgive me if, as Law Officers have done in times gone by, and I hope will do so in the future, I dwell a little on the particularly important and unusual role that is filled by both the Attorney General and me within this wonderful unwritten constitution that we all have and celebrate. I will not repeat the proper references made by the hon. Gentleman and others to “Erskine May”, the ministerial code and indeed the Cabinet Office code—they all stand on the record and do not bear repetition.
It comes to this: the quality of collective decision making in government is dealt a fatal blow when, bit by bit, that decision making is subdivided, unpicked and, frankly, made almost impossible even in circumstances as important and exceptional as this. The argument that we are now having boils down to whether Labour Members and others in this House can accept the Government’s clear statement that we wish to provide a comprehensive position statement that deals with not just the economic and political consequences of any withdrawal agreement and future relationship, but the legal consequences of that decision.
We have inevitably and properly focused on the question of Northern Ireland, which the right hon. Member for East Antrim (Sammy Wilson) quite properly raised, together with the hon. Member for North Down (Lady Hermon), who is no longer in the Chamber. We accept all that, but say that, consistent with previous incidences when the Government’s legal position has been set out in a way that has helped debate in this House, that would be the appropriate course of action here, rather than publishing Law Officers’ advice.
Much has been made about the previous occasion when that was done in relation to the Iraq war—in fact it was the only occasion when the full text of Law Officers’ advice has ever been disclosed. It was two years after the event in particular circumstances when, as has already been referred to, the question of the lawfulness of an action by the Government lay at the heart of the debate. We are in a different position now.
Right hon. and hon. Members know that it would be wrong if I were to try to speculate about the content of any advice on this issue that may or may not have been given by Law Officers. I have to remain true to the convention that we have referred to, but doing the best that I can, it would seem to me that using the Iraq precedent, bearing in mind the particular context and the particular circumstances, is not a helpful guide for where we are today.
Instead, I have looked back to the time of a previous Solicitor General, the late Lord Howe of Aberavon— Sir Geoffrey Howe as he was then—who is sadly no longer with us. He was the Solicitor General who took through the accession of this country to the treaties and the European Communities Act 1972. Although he spoke a lot about the legal basis and effects of entry to the then European Economic Community and the other communities, there was no suggestion at that time that any advice that he may or may not have given should be published. That is probably the best parallel that we can draw between the important events of 2018 and the very important events of 1972. If the House can accept that parallel, perhaps it can go on to accept the Government’s position.
The right hon. and learned Member for Holborn and St Pancras sought to make four key points. First, he spoke about the unprecedented context of the negotiations—I agree with that point—and, secondly, he referred to the nature of the advice as general, rather than something specific with regard to an action. Thirdly, he talked about the operation of the convention with regard to Law Officers’ advice and its position regarding privilege. His fourth point was that the advice or parts of it could not be shown to some but not others. These are all fairly reasonable and clear points.
I have already mentioned why I say that although these circumstances are exceptional, there is no reason at all for Law Officers’ advice to be published in the way in which the right hon. and learned Gentleman seeks. However, I want to deal with the point that he makes about—I hope he will forgive me if I use this phrase—a carve-out from the convention on the basis that the Government’s approach should allow for the disclosure of advice when that advice is in general terms. I would resist any suggestion that we should look at the disclosure of Law Officers’ legal advice on anything other than a strict case-by-case basis. In other words, the particular facts of each disclosure will very much depend on whether Law Officers’ advice should be published.
I agreed to some extent with the right hon. and learned Gentleman’s point about legal professional privilege, although I would say that the context of litigation is really the source of any disclosure, rather than a particularly special status whereby Law Officers’ advice is in a different category of legal professional privilege. If anything, there is a particular premium on the care that Government Departments take about the disclosure of Law Officers’ advice for all the consent reasons mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry). With respect to the right hon. and learned Member for Holborn and St Pancras, one must look at the context. It is the litigation context that would allow disclosure, as opposed to anything intrinsically to do with the status of Law Officers’ advice.
I have dealt with the past as best I may, but I want to reiterate—I hope for the benefit of the House—why the Law Officers’ convention still remains important. It is important not just when it comes to legal professional privilege, but because it protects the public interest in reflecting collective Cabinet responsibility. That is a vital constitutional principle. Why? Because it would be wrong and damaging to start distinguishing the specifically legal components of collective decision making. This places the rule of law at the centre of Government decision-making processes and at the centre of the minds of all Ministers, not just the Law Officers, and it does not permit a delegation of those important responsibilities by Ministers to me and to the Attorney General.
As one of my illustrious predecessor Law Officers and fellow “sosbanite”, the late Sir Elwyn Jones, wrote:
“the Minister who is advised by the law officers that he cannot do something…is not allowed to say, ‘I cannot do it because the Attorney-General tells me that I cannot.’”
I could not have put it better myself. We are talking about the indivisibility of Government decision making, and I am sure that the House will agree that it is a pretty fundamental point.
It is the role of the Law Officers to guard this principle, however tempting—however convenient—it might be to publish legal advice. We are the stewards; we are here to jealously guard the gate. A decision to disclose Law Officers’ advice requires a very powerful countervailing public interest to override that position. The authority of the Law Officers to disclose the fact that they have or have not advised, and then the actual content of that advice, is rarely sought and rarely given. Contrary to what some people have suggested about the right of the client—in this case, the Government—the content of the advice must not be disclosed outside the Government without the authority of the Law Officers.
In the few short minutes I have left, as I am mindful of the need to move on to other important debates—the Opposition Chief Whip is in his place—I think it would be right for me to refer very briefly to some of the important contributions made by hon. Members. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, spoke fundamentally about the need to speak truth to power—if Law Officers cannot do that, where are we? I entirely agree with him.
The right hon. Member for Leeds Central (Hilary Benn) made a really important point about the difference between legal advice and the legal position of the Government. I think he accepted the point that my right hon. and learned Friend the Member for Beaconsfield made in an intervention. I do not wish to repeat that, but I simply reiterate the point for, I hope, the benefit of him and everybody in the Chamber.
I pay particular tribute to my hon. Friend the Member for Banbury (Victoria Prentis), who spoke with authority as a former Government lawyer. She rightly reminded us in detail about the litigation position of the Government and the realities of disclosure, and the particular status of the Law Officers’ advice with regard to the deliberations of Government lawyers. Many other eminent lawyers spoke today—and many eminent non-lawyers as well, Mr Speaker, as I know that you regard the non-lawyer with particular affection, so I do not want to miss them out.
Today’s debate has been about not just dusty conventions, but pretty important constitutional positions. We know that the right hon. and learned Member for Holborn and St Pancras fully understands that. Admirable advocate though he is, I could not help but detect perhaps a little sense of sheepishness in his approach to the conventions. I readily forgive that, and I know that it will make him pause for thought in the days ahead. I hope that it can lead him and his colleagues to accept the clear view, and the clear offer, set out by my right hon. Friend the Minister. I readily adopt and repeat that offer. I hope that it will allow the right hon. Gentleman to draw back and, in the spirit of consensus and constructive dialogue, to accept the Government’s position and not press his motion to a vote today.
Question put and agreed to.
That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.
Yes, I have. My constituency office in Edinburgh South West, on Dundee Street in Fountainbridge, is next door to the local citizens advice bureau in Fountainbridge library. We work closely together on this sort of issue. Citizens Advice provides an amazing service. In my experience, Members of Parliament who work in conjunction with it can have successful outcomes in fighting issues of administrative justice in the UK social security system. That is a much-neglected area; we need to look at how the social security system is functioning or, in my experience, not functioning, and failing to properly respect people’s rights. We need to look at all the facts of the case. As in the immigration field, there seems to be a considerable amount of capricious decision making, which is why it is important for people to have access to legal assistance in facing down that unfair decision making.
I am happy to say that on a number of occasions, I have referred constituents to the free legal services unit at the Faculty of Advocates with good outcomes. The Faculty of Advocates also arranges open days to encourage students from schools across Scotland to come and see what life as an advocate is really like.
I am proud that the Faculty of Advocates has done much to increase its diversity since I was called to the Bar in 1995, when I was one of a small number of women advocates in Scotland and there were no female judges on the senior Scottish bench. Now, our second most senior judge is a woman and we have many women on the senior judicial bench in Scotland, but there is still quite a long way to go before we achieve parity with the men.
There is also the issue of trying to encourage more people from working-class backgrounds and from diverse and BAME communities to come into the law. As well as holding open days, the Faculty of Advocates runs a couple of mini trials—or mock trials—initiatives, which are particularly directed at kids from schools and backgrounds from which people would not normally be expected to end up at the Bar, to try to break down the barriers and to show that—if I am allowed to say this—the law can sometimes be fun, and that it is not just for posh people who went to a private school. I hope that my former colleagues are making some progress in that area. They run the mock trials as part of the Citizenship Foundation, which has been mentioned. It is a cross-UK foundation that is supported north of the border by the Faculty of Advocates.
Another way that legal professionals can contribute to legal education is by providing briefings to parliamentarians working on Bills. In the three years that I have been here, I have had invaluable assistance from briefings provided by the likes of the Law Society of Scotland, the Law Society of England and Wales, the Bars of Scotland and of England and Wales, and organisations such as Liberty, and Justice. I am proud that the Faculty of Advocates actively contributes to law reform north and south of the border under the excellent chairmanship of Laura Dunlop, QC, who was my pupil master, although she is not responsible for any of my mistakes—only for the good parts.
The Law Society of Scotland also provides fantastic briefings. I could not have done my job as an MP properly without its assistance in the last few years, particularly the assistance of Michael Clancy, who is the head of law reform there and is well known to parliamentarians from all political parties. In more general terms, it has also engaged in significant activity in the area of public legal education.
The hon. Member for Morecambe and Lunesdale (David Morris) mentioned StreetLaw. The Law Society of Scotland participates in the StreetLaw project. That involves sending out StreetLaw trainers to teach students and schoolchildren about the law, the legal process and the sort of knowledge and skills that students can use to recognise and prevent legal problems in their lives, and perhaps also to prompt them to consider participating as legal professionals in later life.
All the Law Society of Scotland’s StreetLaw trainers are law students studying in Scotland who undertake this work on a voluntary basis. I am very proud to say that they are supported by two major international law firms in doing so—CMS Cameron McKenna Nabarro Olswang, and Pinsent Masons. They have also had support from the Law Society of Ireland and from international leaders in public legal aid education, such as Harvard University, Georgetown University and Penn State University.
As well as participating in the StreetLaw project, the Law Society of Scotland participates in a charitable foundation, which was set up to give bursaries to students and to support summer schools, schools programmes, visits and events. The Law Society of Scotland is also playing an active role in a campaign to increase diversity in professional services in Scotland.
Just before I draw to a close, I will add a note of caution. An awful lot has been said today about the importance of public legal education, but public legal education should never be viewed as an easy way to plug the gaps left by legal aid cuts. Access to justice should always be our paramount concern. Public legal education should be more about developing capacity and not really about answering specific legal problems because of unmet needs due to gaps in the legal aid system.
Recently we saw a leaked Ministry of Justice report that revealed judges in England and Wales are concerned that legal aid cuts are leading to an increase in the number of defendants without legal representation. I think it is fair to say that the extent to which legal aid has been cut in England and Wales has pushed many people out of eligibility for it in crucial areas of justice, meaning that vulnerable people are often left without legal aid and appear in court or before a tribunal without a lawyer. That is not just my view; it is also the view of many of the witnesses who have given evidence to the inquiry by the Joint Committee on Human Rights into the enforcement of rights. It is also the view of Amnesty International, which has said that the cuts included in LASPO—the Legal Aid, Sentencing and Punishment of Offenders Act 2012—have created a two-tier justice system in England and Wales.
Recently in Scotland, we had an independent review of our legal aid system. It highlighted that, despite the fact that we spend less per capita in Scotland on legal aid than is spent in England and Wales, legal aid is far more widely available in Scotland and covers a wider scope of categories than it does south of the border. As I say, that was not a Scottish Government review but an independent review, chaired by Martyn Evans, the chief executive of the Carnegie UK Trust. It shows that it is possible to have legal aid that is more widely available without actually spending any more money. So, where there’s a will, there’s a way.
I end by urging the Solicitor General to be cautious about letting public legal education plug the gaps that legal aid should fill, and I urge the UK Government—as I have done on previous occasions—to carry out an independent review of the legal aid system in England and Wales, rather than the in-house Government review that is going on at the moment.
My point was much broader than that. Far more people are affected by maternity discrimination than bring maternity discrimination cases. Although the point that the hon. Gentleman has made is factually correct, I hope he agrees that it is important to think about those women who would never even have understood that they had been discriminated against. That is the point I was making.
Order. I remind Members that the debate closes at 4.17 pm. If the mover of the motion were given two minutes to have the final word that would be wonderful.
Break in Debate
My hon. Friend makes an important point. For those of us who were in the full throes of private practice, very often the delivery of PLE was a better use of our time than our having to immerse ourselves in often very unfamiliar areas of law, with all the concomitant risks. My message to the big firms is: where there is an issue about availability, allow members of the team to go into schools first thing in the morning. I have seen that in several state schools in London. I have joined employed barristers and solicitors helping to deliver citizenship foundation courses, for example in social media law. To see the engagement and sense of ownership that young people have when talking about issues so close to their everyday lives—when they suddenly understand that law is not some remote, dusty concept, but reaches into their existence and everyday experience—is quite a sight to behold.
I want to outline and underline the work that we are doing with the public legal education panel, which has been formed from leading organisations in the field to promote the importance of that work. It was convened by me last year. It involves the professions and organisations such as the Citizenship Foundation and Law for Life. We are bringing together organisations in a joined-up way to help work out where the need is and what the provision is currently. I have two sub-groups working on those issues.
There are two types of PLE. “Just in case” PLE is all about ensuring that people have skills, information and knowledge about their rights. “Just in time” PLE is all about giving people knowledge and support when a legal issue happens to arise. Both types of provision are equally important, and we are working our way towards getting a better understanding.
Through organisations and such events as National Pro Bono Week, I can champion the importance of PLE through the community, whether it is delivered in schools, to people who are homeless or those in prison, who really need to understand their rights and, most importantly, their responsibilities. Last year during Pro Bono Week, I took part in a session on social media and the law being delivered by university students to local secondary school pupils in Chester. It gave young people a chance to learn about their rights and the surrounding law. One issue that arose was the increasing problem in schools of young people taking videos of fights and other incidents in the playground. The session was about understanding what the sharing of those videos meant for privacy, the rights of the individuals involved and the problems that we are all familiar with here, but which all too often young people sadly only learn about to their expense after the event. I was proud of and impressed by the commitment of the university students delivering the sessions. That has been backed up in recent months by my experience at the Kent law clinic at the University of Kent in Canterbury. Law students there are not only delivering support and advice to members of the public; they are also helping to spread public legal education more widely.
We have some shining examples of the work that is going on, and I pray in aid the work of His Honour Judge Wildblood, QC at the Bristol family court. He is allowing his court to be used for public debates about the law. He is even using local drama groups to help to educate young people. He is bringing together the legal community in Bristol and the surrounding area in a most effective way. With that sort of leadership, many great things can be achieved but here, Mr Streeter, is where you and other colleagues come into play. As has been said by many Members, including my hon. Friends the Members for Walsall North (Eddie Hughes) and for Redditch (Rachel Maclean), there are opportunities for colleagues to take a lead in their local communities and work with local firms of solicitors or legal practitioners to help to deliver public legal education in our schools.
The hon. Gentleman is absolutely right. Only last Friday I was doing that at a school in my constituency, the Ridgeway. I was talking to young people in the sixth form who did not have a background in the law about what opportunity there was for them. Like me, he no doubt has taken on youngsters in chambers deliberately with the knowledge that they did not have a background in law. In fact, I would not take people who had any connection with the law because I wanted to empower young people and give them a chance.
I want to deal with some of the points raised by my hon. Friend the Member for Bexhill and Battle (Huw Merriman) about the curriculum. The position has yet to be clarified because more work is being done, particularly on sex education in schools and the issue of consent and withdrawal. That is not yet a statutory part of the curriculum. Citizenship remains compulsory at key stage 3. We are talking about youngsters in years 7, 8 and 9 who can access that education in school, and it must include PLE. It is a matter for schools to determine how to deliver it, but by working collaboratively with professionals, a lot can be achieved.
My right hon. Friend the Member for Basingstoke (Mrs Miller) made some important points about access in the workplace, particularly for women who have no knowledge—I say that with respect; it is not their fault—about their rights. That is why the regulatory objective in the 2007 Act is important. More has to be done to deal with the question of empowerment of our citizens via the regulatory bodies. That would not just include lawyers, even though the 2007 Act has that remit. I will go away and think about her point very carefully. Perhaps we can use it as the start of an important discussion. I thank all hon. and right hon. Friends and Members for taking part today. The law is not some mystical holy of holies and lawyers are not the high priests. We should demystify it, and that is where public legal education is so important.
I thank the Attorney General for that statement, which very properly will have been heard by Mrs Boudchar and a great many others.
I thank the hon. Gentleman for his remarks and for the tone of them. He is right to say that one thing we should seek to achieve, not least for Mr Belhaj and Mrs Boudchar, is the ability for them to have closure and to move on with their lives. He is also right to say that the framework in place for the future must be properly robust and ensure that this kind of thing does not happen again. He asked me about consultation with Ministers on questions of this nature. I am sure he will be aware of the consolidated guidance published by the coalition Government in 2010, which of course we keep under review. It indicates clearly that when it comes to the treatment of detainees and information obtained from them, there are clear expectations of the intelligence agencies; where necessary, they should refer matters to Ministers; and when they do so Ministers should be properly informed of the background to the decisions they are being asked to take.
The hon. Gentleman is, of course, also right to say that the framework that surrounds all these activities must be fundamentally based on our values, one of which is the capacity of this Government or any Government to accept where mistakes have been made and apologise for them.
Thank you, Mr Davies. If the right hon. Gentleman is patient, he will hear that I am trying to support his case by saying that there are no restrictions in Scotland, and the system works. I will also explain changes made there that may provide some ideas for how it could be made to work in England.
As I said, the right to appeal against unduly lenient sentences in Scotland is contained in the Criminal Procedure (Scotland) Act 1995. On the face of that legislation, there are no limits to the class of cases on indictment where the prosecutor can appeal sentences on the grounds of undue leniency. However, in summary cases, the right applies only to a class of case specified by order made by the Secretary of State.
On the face of it, exactly the same situation applies in England and Wales. However, for whatever reason—I do not know what the reasons were at the time—when the order was made in 1996, the class of case specified was effectively “any case”. In short, all sentences, whether on indictment or summary proceedings, can be appealed by the prosecutor. In fairness, that has not clogged up the courts there or indeed the prisons, so I think that is a separate issue. As far as I am aware, it has never been suggested since that limits be applied to such rights to appeal unduly lenient sentences. Some more recent reforms may also be relevant to the current debate; they were designed to make the court processes more sustainable, with significant changes taking place after wide-ranging reviews of both civil and criminal court processes.
In fact, it was a review of civil procedure that prompted the introduction of a new appeal tier, a Sheriff Appeal Court. To assist in ensuring that the High Court and Court of Session focused on the work it truly needed to focus on, the new Sheriff Appeal Court established in 2015 was given the task not only of taking on civil appeals work, but of hearing summary criminal appeals, including appeals against sentence, from both sheriff and justice of the peace courts. Whereas, in the past, sentencing appeals from summary cases would go to the High Court of Appeal, they now go to the new national Sheriff Appeal Court. In short, to answer the right hon. Gentleman’s point, what the Government should consider is whether, at the same time as extending the prosecutor’s right of appeal in “either way” cases, one way to make it work more effectively and efficiently without clogging up the Court of Appeal is to look for an alternative forum for such appeals against unduly lenient sentences.
Order. The sitting is suspended for 15 minutes for the Division. If there is a second vote, it will be suspended for a further 10 minutes.
Break in Debate
Using statistics is a wonderful thing. As a Minister, you get them thrown at you all the time. With all due respect, the shadow Minister is not comparing like with like. We can only use the figure of how many sentences are appealed if every one of those 80,000 cases is appealable, and they are not. That is the problem. I understand where he is coming from. We do not want the courts swamped. I do not think they would be, but I am still looking for the evidence from the Justice Department. We are not comparing like with like.
The hon. Gentleman seems to be running away with the idea that, of all these cases, only very few are deemed unduly lenient. We must make it clear that these sentences can only be appealed if they are unduly lenient. Sentences may well be lenient, but they cannot be appealed. There could be many more sentences that are lenient. These are just ones that happen to be unduly lenient.
It is vital at solemn and serious times like this that we all exercise our right to free speech responsibly, and that we are mindful that criminal investigations are ongoing, as well as concurrent inquests and, of course, the public inquiry. All of us have to make sure that we pass that very high test, and I am afraid that the shadow Chancellor failed that in his remarks this week.
The hon. Gentleman raises a very germane point, and we all need to bear the Hillsborough precedent very much in mind. I am keen, and the Government are keen, to ensure that the independent advocate has as powerful and as meaningful a role as possible. Each case will depend on its merits, but I am certainly prepared to look at all details, including the one he raises.
Like many other appointments of this kind, I can envisage the sort of accountability that the hon. Gentleman mentions. The publication of annual reports is a regular and common occurrence. Again, it is a particular point that we will consider very carefully indeed.