Sentencing Code
Robert Buckland Excerpts(4 years, 12 months ago)
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The Minister of State, Ministry of Justice (Robert Buckland)
I am today announcing the Government’s interim response to the Law Commission’s report on the Sentencing Code, published on 22 November 2018. The interim response can be found at: https://www.gov.uk/ government/publications/government-response-to-law-commission-report-on-the-sentencing-code. I am also announcing the Government’s intention to introduce the Sentencing (Pre-consolidation Amendments) Bill to Parliament, which will pave the way for the sentencing code.
The Law Commission’s draft sentencing code is a consolidation of legislation governing sentencing procedure which aims to ensure that the law relating to sentencing procedure is readily comprehensible and operates within a clear framework as efficiently as possible. For the code to operate as intended, there are some amendments required to the existing law to facilitate the consolidation and to remove historic, and now redundant, layers of legislation. To enable this the Law Commission has also drafted a pre-consolidation amendment bill. Neither the code nor the pre-consolidation amendments make any changes to existing offences and penalties, nor do they introduce any new substantive law or sentencing disposals.
The key recommendation of the report is that the draft legislation be enacted. The Government welcome the Law Commission’s report and draft legislation and consider the consolidation of sentencing procedure to be a major step forward in simplifying what is often a complex and technical area of law. It is absolutely vital that unnecessary errors made in our criminal justice system are minimised, and that the courts, offenders, and victims of crime and their families are not put through the time and expense of unnecessary appeals.
The Ministry of Justice is looking carefully at substantive sentencing reform. For example, there is persuasive evidence showing that community sentences, in certain circumstances, are more effective than short custodial sentences in reducing reoffending, and therefore keeping the public safe. At this stage, we are still considering options and have not ruled anything in or out.
However, questions of substantive reform are distinct from the important task of making sure that sentencing procedural law is clear and accessible to those that need to use it. We believe the sentencing code provides that clarity and transparency. I will bring forward more detailed proposals in due course, but I emphasise that the opportunity for the consolidation of complex sentencing procedural law presented by the code is a separate matter, and should be brought forward separately.
The Law Commission has also made some further recommendations to the Government for the reform of sentencing law. These have not been given effect in the draft legislation and both Bills as drafted by the Law Commission can be enacted without taking these additional recommendations forward. The Government are grateful for the in-depth analysis that has gone into these complex issues during consultation, acknowledging that in some cases they were unsuitable for inclusion as part of the consolidation process or outside the terms of reference for the project. For those reasons, we do not propose that these recommendations be taken forward at this time, while noting that the benefit of the sentencing code is that it will be readily open to Parliament in future to make such changes. We will, however, provide a fuller response to these further recommendations raised by the Law Commission in due course.
The Government thank the Law Commission for the considerable effort that has gone into producing the report and draft legislation. While the sentencing code itself should be brought forward through the parliamentary procedure for Law Commission consolidation Bills, I am pleased to announce that the Government will be introducing the Sentencing (Pre-consolidation Amendments) Bill to Parliament, giving effect to the pre-consolidation amendments, through the special procedure which is available for Law Commission recommended Bills.
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Prisons and Probation
Robert Buckland Excerpts(5 years ago)
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The Minister of State, Ministry of Justice (Robert Buckland)
It is a pleasure, after only two working days in office, to close this important debate and to make my first speech to this House as Minister of State for Justice. I heard a call in this debate, and I will deal with the issue, because my predecessor, my right hon. Friend the Member for Penrith and The Border (Rory Stewart), to whom I pay warm tribute, made a pledge. I have already said this, but I will say it again: I am going to do things my way. I am going to bring nearly 30 years of experience in the criminal justice and penal system to bear upon the serious job that I will undertake. The work of the “10 prisons project” will carry on, and we will see its results in the summer. It will continue in the same determined and urgent way that it has been pursued up to now.
I am here to reflect on the prison and probation services and, indeed, the whole criminal justice system. I want to leave a legacy that will demonstrate that, in whatever time I am given to serve in this office, I will have played my part in making justice neither tougher nor softer, but smarter when it comes to serving the public.
Anna McMorrin (Cardiff North) (Lab)
I welcome the Minister to his new role. He says that he would like to leave a legacy. Does he agree that the current devolved settlement between Wales and the UK is broken? To fulfil that legacy and simplify the system, we need to devolve justice, prisons and probation to the Welsh Government to enable the smooth running of this broken service.
Robert Buckland
As a proud Welshman, I have a long and deep interest in such issues, and I think greater unity is the way forward. Many excellent lessons have been learned from the Welsh probation system, and they inform our decision making as we reach a final decision on the future of the probation service. At this time, I much prefer to support a Wales-and-England approach when in Wales and an England-and-Wales approach when in England, and we need greater unity.
Robert Buckland
Let me develop my points, and I will give way in a moment.
My right hon. Friend the Lord Chancellor and Secretary of State for Justice has proposed a radical, evidence-based approach to put rehabilitation truly at the heart of our prison and probation services. I am delighted to be joining his team, and it is right to pay tribute to and congratulate my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) who has taken her place—it was my place for many years—as the Solicitor General.
This has been a wide-ranging and informed debate. It included speeches from distinguished members of the Justice Committee, on which I served for four years with some Members present, and I am grateful to them for their considered, eloquent contributions. The debate moved away in a welcome manner from the rather false dichotomy of public good, private bad, or vice versa, because the truth is that neither is true. We are seeking a genuinely mixed approach that works whether in the south-west or north-east of England. We want an approach that keeps rehabilitation and reducing reoffending at the heart of our deliberations.
I want to take this opportunity—my first such opportunity—to pay tribute to the biggest single asset in our prison and probation services: the people who work in them. I have been in professional contact with these people since the early 1990s. Probation officers work hard to prepare important pre-sentence reports. Prison officers work tirelessly, often on the frontline of potential harm, to make our prisons civilised and safe places. I am thinking, too, of the volunteers who work alongside them—the prison chaplaincy has been mentioned—and the healthcare staff and charity workers. Of course, we should not forget the offenders and former offenders who work hard to help their peers, and the listeners trained by the Samaritans to help prisoners who are struggling to cope. The system just would not work without all their dedication, skills and bravery, and it is my task to champion their work and to give them the resources, tools and conditions in which to excel.
A lot has been said about the need for a clear evidence base. As a lawyer, of course, I naturally support that, and it is right to support it because I think we can agree that blind ideology, whether in favour of an overweening state or in favour of a mythological free-market paradise, is not the right answer for our prison and probation services.
Sir Nicholas Soames (Mid Sussex) (Con)
I welcome my hon. and learned Friend to his job, to which I hope he brings the same tremendous skills as he brought to his previous job as Solicitor General. He was kind to listen to my representations last night about my local probation area in the south of England, which has managed to make the system, as it currently exists, work extremely well. My local service has an outstanding reputation, and in listening to what it says, I am struck by the fact that for it to tear up all the progress it has made under the present system for another system would not help those it looks after. I urge him to consider some form of flexibility in his plans so that the very best that has been learned in the current system can be incorporated into the new system.
Robert Buckland
I am grateful to my right hon. Friend, and of course I am familiar with the CRC to which he refers. It is an example of how best practice has been achieved, and it shows excellent delivery of unpaid work placements right across the region. It offers a comprehensive range of programmes and, frankly, outstanding leadership, too. He is right to talk about flexibility within a national framework.
The right hon. Member for Delyn (David Hanson), as he always does, made some pertinent points about recall rates. It is right to say that the increases are a direct consequence of the fact that 40,000 more offenders are being supervised as a result of the positive transforming rehabilitation changes. It is inevitable that there will be an increase in breaches with an increase in numbers, but I take his point. It is very much part of my consideration and thinking to ensure that, as we go forward, the monitoring and enforcement of orders is as important as the imposition of those orders—in fact, more important in many respects.
I am grateful to my hon. Friend the Member for Bromley and Chislehurst (Robert Neill), the Chairman of the Justice Committee, who in his inimitable way made the important point that, from the evidence he has heard at length, a mixed-economy approach to prisons and probation is the right one. He spoke about through-the-gate support, and it is good to note that there is £6 million of funding from the Ministry of Housing, Communities and Local Government to support people to move away from rough sleeping and into accommodation, which is clearly one of the key gateways away from reoffending.
The hon. Member for Barnsley East (Stephanie Peacock) raised a horrifying case, and I reassure her that a serious further offence review is under way. The Government remain in favour of raising the maximum sentence for causing death by dangerous driving, and we will look to do so as far as parliamentary time allows.
Stephanie Peacock
Exactly when will the Minister do that? The Government have committed to it previously, but we are still waiting.
Robert Buckland
I hear the hon. Lady, and I share her sense of urgency. I cannot promise a specific timescale, but, as a former Solicitor General, I have considerable experience of dealing with such offending, which is a very high priority for me. I am grateful to her for raising it at this early opportunity.
My hon. Friend the Member for Banbury (Victoria Prentis) made an important and comprehensive speech. Although I would like to address her many points in turn, it would perhaps be an invidious encroachment on the House’s time, but I look forward to working closely with her, particularly on developing better alternatives to custody. She is absolutely right on that; I have been a sentencer, as a former part-time judge, so I know that it is vital to have integrity in all the options before the sentencing court—whether custody, community sentences or another type of disposal. I take her points very much on board and look forward to engaging with her.
Right and hon. Members made other points about the performance of CRCs. I accept that performance has been mixed, but quick actions have been taken to raise the quality of supervision. For example, telephone supervision was amended last year to mandate at least one face-to-face appointment per month with every offender. Changes were also made to introduce higher standards to more fairly reflect the cost of delivering services. As a result of the ending of the CRC contracts earlier, we will now expect to spend about £1.4 billion less on CRCs than was originally expected.
Robert Buckland
I cannot, because time does not permit me to do so. I am under some pressure and I wish to deal with Members’ contributions.
My hon. Friend the Member for North Dorset (Simon Hoare) was right to mention the excellent performance of his local prison, Guys Marsh. It is a good example of a prison that has had past challenges but, with excellent leadership, is turning around. We are working closely with Guys Marsh to identify the problems of drug issues and of rural recruitment. Indeed, there is a £3,000 income supplement for people who wish to work at that prison.
The hon. Member for Great Grimsby (Melanie Onn), in an interesting speech, talked about prisoner welfare and self-harm. I can reassure her that that is taken extremely seriously, with the rolling out of new training on suicide, self-harm and mental health to more than 14,000 staff who have completed their training. That means an improvement in the way in which vulnerable prisoners are assessed and supported. Further work has been done with the Samaritans, which supports the listener scheme to which I referred.
The hon. Member for Bedford (Mohammad Yasin) talked about his local prison. We are taking robust action to respond to that urgent notification by appointing a new and experienced governor and additional operational managers, by making sure that staff undergo intensive training, by increasing the number of searches and by seeking support from national and regional specialists to support a safer regime in that prison. I know that he will be holding me to account and keeping a close eye on that.
May I deal with the role of the private sector and the evidence of the current chief inspector of probation? Dame Glenys Stacey is retiring shortly, and I want to pay warm tribute to her. Her evidence was more nuanced than perhaps has been suggested. In the body of her evidence, she acknowledged that the private sector has brought benefits to the service, particularly with regards to the delivery of IT and training, and innovation in rural areas, where local communities’ needs have been recognised. In her evidence, she acknowledged that a mix of the public, private and voluntary sector working together is indeed a viable and appropriate way forward.
I have answered the hon. Member for Bath (Wera Hobhouse), who challenged me about the pledge of my predecessor, and I have answered in the words of Mr Frank Sinatra.
The hon. Member for Bristol West (Thangam Debbonaire) made an important and interesting speech about the vicious cycle involving coercive control, abuse and perpetration. I want to work with her to improve our understanding of that, because we have done some excellent work in the field of women’s offending. The number of women in prisons has reduced, as a result not just of some target exercise but of increased understanding of the particularly vulnerable position of women, who are often the victims of domestic abuse. I am grateful to her for raising those important points.
The hon. Member for St Helens South and Whiston (Ms Rimmer) reminded us all eloquently and clearly to respect and support justice and the rule of law. I could not agree with her more, and that is what I intend to do throughout my tenure.
It was suggested that the words of the former Cabinet Minister and my friend, Sir Malcolm Rifkind, were in some way a condemnation of Government. May I assure this House and all hon. Members that, ultimately, the deprivation of liberty is always the responsibility of Government? How that is administered is a legitimate place for the voluntary and private sector to be involved. As I have said, based on the evidence, I believe we can continue the work that is under way, not only to make our prisons safe, decent and secure, but to make sure that there are viable community alternatives. I look forward to the work ahead and am grateful to the House for its indulgence.
Question put and agreed to.
Resolved,
That this House notes HM Chief Inspector of Probation’s recent conclusion that the privatised probation system is irredeemably flawed and that public ownership is the safer option; recognises that the Public Accounts Committee concluded that probation services are in a worse position than they were in before the Government embarked on its reforms; further notes the Government’s decision to return HMP Birmingham to public ownership following repeated failures under G4S; is concerned by the Government’s plans for at least two new prisons to be privately run; and calls on the Government to end its plans to sign new private probation contracts and contracts for new privately-run prisons.
Victims Strategy
Robert Buckland Excerpts(5 years, 7 months ago)
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The Solicitor General (Robert Buckland)
Before I address all the wide-ranging and important points made in this debate, which is the start of the process that the strategy seeks to inform, may I pay personal tribute to the late Denzil Davies, whose death was reported this morning? He was the first Member of Parliament I ever met. He was my MP, and although I opposed him politically, he was a huge source of advice and encouragement to me. I probably would not be here without people like him, and I want to put on record my condolences to his family and his many friends. He was a Member of this House for 35 years and served on both Front Benches with distinction.
If the victims of crime are not heard, the interests of justice are not served. If they are not served, what meaning can the rule of law continue to have? If the rule of law is undermined, what hope do we have to continue to claim to be a civilised country? It is as fundamental as that and always has been to me. I spent 20 years or so in the criminal courts, meeting the victims of crime every day of my professional life. I have met thousands of people of all ages, from all backgrounds. I have admired their courage and I have tried to empathise with them when things have gone wrong. I have watched human experience unfold before my eyes, and I have done my best to support people who end up, through no choice of their own, in the criminal justice system.
I long ago came to the conclusion that no amount of individual good will or professionalism on the part of dedicated individuals in the system could replace a more systematic approach to the care of victims and witnesses. My former colleague on the Justice Committee, the hon. Member for Bolton South East (Yasmin Qureshi), is right to bring the two subjects together. They are indistinguishable in my mind, because there are many people who, while they have not been a direct victim, will have witnessed some appalling events and have to live with the consequences, as well as go through the ordeal of having to give evidence.
What does it mean for a victim to seek and obtain justice? Obviously, the outcome of a criminal case is important. Rightly, we have independent judges and juries who make those decisions every day of the working week. Putting that to one side, however, I think that what it means for victims is not having to reinvent the wheel every time they come into contact with the various agencies that are responsible for the criminal justice service: not having to repeat their stories, their needs and the specific support to which they are entitled. As Members have rightly pointed out today, it also means that the authorities do not talk in jargon, but, in the words of a member of the victim liaison unit at the Crown Prosecution Service office in Yorkshire and Humberside, “speak in human being”.
I could not have put it better than that member of the team in Leeds whose job is to write letters, day in day out, to victims of crime. I pay tribute to the team’s work: they provide a particularly good example of how to do that. We in the House, who deal with thousands of letters every week, perhaps find letter-writing run of the mill, but to a victim of crime, receiving a letter from someone in authority in the CPS or the police is a significant moment. We really must do better, and get it right. I am glad to note that the CPS is redoubling its efforts, working across England and Wales to improve that vital process.
At the beginning of the debate, the Under-Secretary of State for Justice, my hon. Friend the Member for Charnwood (Edward Argar), spoke about the seamless support that victims and witnesses deserve. That, in two words, encompasses the approach set out in the Government’s strategy. In an intervention, my hon. Friend the Member for Bexhill and Battle (Huw Merriman) talked about the sentencing process. Again, I think that the need for the authorities to make their position clear and understandable at the right time has never been more important.
As part of my role as Solicitor General, I often conduct “unduly lenient” sentence reviews, appearing as an advocate for the Government in the Court of Appeal, so I continue to meet the victims of what are often very serious crimes, and I can tell from their faces that the process continues to be overwhelming for them. It is sometimes very difficult to explain a situation that may seem straightforward to me, but for them is still difficult to process. If we are to get this right, we need to understand that time and space are often needed for it to be done properly. That ties in with the importance of the written letter and the explanation that is given to victims in the aftermath of a conviction, a sentence or, indeed, an acquittal. I pay tribute to the groups in the third sector that do so much advocacy for victims and their families in such circumstances.
I will never forget meeting the mother of a murdered child, whose then partner—not the child’s father—had perpetrated the most appalling injuries on that defenceless boy. I will never forget the—I will not say “gratitude”, but the relief that I could see she felt that a higher degree of justice had been done when the sentence was successfully varied by the Court of Appeal. It will never leave me, and I am sure that many other Members on both sides of the House will have had the same experience. I think that such experiences are particularly powerful when one is in the court environment, at the coalface, seeing them for oneself. That is why I think it so important for the Law Officers to continue to conduct cases in person so that they can really get a sense of what is going on and can understand and hold on to that vital of experience with the victims of crime.
The hon. Member for Ashfield (Gloria De Piero) understandably pressed us to proceed more speedily with the introduction of a victims law. She rightly said that we need to get the statutory duties right; we need to get them embedded, and we need to provide that systematic approach. We have committed in our strategy to consult upon the introduction of such a law, but it is not just about rights, important though they are; it is also about getting the statutory duties that have to underpin this absolutely right. Far too often, our experience here in this House—I think the hon. Member for Rotherham (Sarah Champion) might agree with me on this—is that we have gone ahead and passed legislation with the best of intentions, and then found that there has been a more than embarrassing, indeed a worrying, gap between the commencement of that legislation and its proper implementation. If we were to go down that road, we would fail victims badly, because we would raise expectations and then let them down. That is why we need to get this legislation absolutely right, but in the meantime we are not just sitting on our hands: we have published a strategy that commits to action here and now. Taking on board the constructive points the hon. Lady made, I think this is the best approach for victims and the interests of justice.
The hon. Lady asked a number of questions, and I will do my best to deal with as many of them as possible. The existing code has a statutory underpinning anyway, and the parliamentary ombudsman has a role in looking at and reporting on any maladministration, and we will of course, importantly, be looking at how to monitor future performance. The information that we can glean from the work of PCCs across the country about compliance with that code will help us to understand better where things are going wrong, and we expect that information to increase as the strategy is rolled out. That will help inform the important process leading up to the introduction of legislation.
The hon. Lady made a point about the cross-examination of victims of sexual offences—what we might call the section 41 point, in reference to the measure in the Youth Justice and Criminal Evidence Act 1999 that introduced the restriction in question—and she mentioned the work of the former Solicitor General, now PCC for Northumbria, Dame Vera Baird, and the points made by other Members about this. We looked closely at the use of section 41 about a year ago, because we were very concerned about Dame Vera’s observations. We keep the matter under review, but we looked at about 300 cases and we found that, happily, evidence of the misuse or non-use of section 41 was sparing. In 92% of cases analysed by the CPS, we found no evidence of the improper use of sexual history in a way that would totally defeat the purposes of the legislation.
It is important, however, that we stamp out bad practice and that we train advocates and judges as fully as possible to put up the red light immediately when inappropriate cross-examination is embarked upon, and I am glad to say that all criminal advocates and barristers are now getting training in dealing with sexual offences, in terms not just of cross-examination but of understanding fully the important procedures that have existed now for the better part of 20 years. Without being too anecdotal, I have had professional experience of prosecuting and defending in sexual cases both before and after section 41, and I remember the sea change that took place as a result of its introduction and how alert I certainly was, and other professionals were, to making sure that if applications were to be made that was done in writing before the trial, so that, importantly, complainants and victims were not taken by surprise, which is probably one of the worst things we can imagine: there someone is in court giving evidence about their statement when suddenly they find that wholly extraneous matters irrelevant to the issues in the case are being brought up. It must not happen.
Sarah Champion
I wonder whether the Minister will be kind enough to look into the evidence I have on child victims of sexual assault, because I think he might be quite shocked by the data I discovered.
The Solicitor General
I am grateful to the hon. Lady, and I would be very interested in that. Section 41 is widely framed; it involves not only adult complainants, and it embraces all types of sexual offence, not just rape, important though that is. I would be very interested to hear more about that evidence. She and I have worked together on many Bill Committees as Back Benchers, and I look forward to hearing more information from her.
Spousal rights were raised, as were the terrible circumstances in which someone might have murdered or tried unlawfully to kill their spouse. I understand that the hon. Member for Ashfield raised this point in Justice questions this week, and that the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), has undertaken to meet her to discuss it. I reiterate my hon. and learned Friend’s words, because the hon. Lady has raised this matter quite properly in the context of this debate. She also raised the issue of sentence changes to the maximum term for perpetrators of the offence of causing death by dangerous driving. We have committed to doing that as soon as parliamentary time allows. I can tell her that I am anxiously looking at a number of unduly lenient cases involving that type of offence and that I get frustrated by the 14-year maximum. I know that it causes judges real sentencing issues when it comes to reflecting the full gravity of the offence, particularly when more than one death has occurred as a result of appalling driving. That point is well made, and we hear it loud and clear.
The debate moved on in a helpful and important way when we heard the input from constituency Members. They referred to their own experiences in their constituencies, and echoed some of the analysis that we can see in the strategy. My hon. Friend the Member for Dudley South (Mike Wood) made those points very well in his speech. He reminded us of how far we have come in terms of changing the law to respond to the needs of modern crime—in particular, stalking and harassment. The hon. Member for Rotherham and I have worked on those issues in the past. I had the honour as a Minister of bringing into law the offence of coercive control, having campaigned for it as a Back Bencher. In the past year, we saw about 4,000 such cases, which equates to 4,000 victims of criminality who would not have had a voice two or three years ago. I constantly ask my local senior police officers about their experience of rolling out and using that new offence, and I am glad to say that there is an increasing understanding of its complexities.
Clare’s law was also mentioned. It is among the many key changes that the Government have introduced to safeguard and protect those who have either been the victims of crime or are at risk. I was particularly proud of our decision to place domestic homicide reviews on a statutory footing, bringing into force legislation that had been passed under the previous Government.
I have omitted to mention pre-trial counselling, to which the hon. Member for Rotherham and others have referred. There is a legitimate question about ensuring that the evidence of victims and witnesses is preserved and protected in a way that minimises the risk of its being undermined in cross-examination, but plenty of professionals out there have the training and understanding to know that. Where we have suitably qualified psychiatrists or other mental health professionals, there should in my view be no bar to the sort of general counselling help that would be of real value to people who are experiencing some form of trauma as a result of what has happened to them. With those safeguards, I am sure that more can be done to support victims, who often have to wait too long between the offence and the trial or the sentencing process.
The hon. Member for Paisley and Renfrewshire North (Gavin Newlands) drew our attention at length to the Scottish experience, as he is wont to do, and I make no criticism of him for that. He knows from previous answers that I have given to him and his colleagues that I am always alive to and interested in the Scottish experience. Indeed, history teaches us that many of the innovations brought in via the Scottish criminal justice system have been adapted here in England and Wales, and I see no reason for that to stop. That is why his contribution was particularly valuable today.
My hon. Friend the Member for Sutton and Cheam (Paul Scully) spoke with some force about his local experiences and the work being done by people such as the Donovans, who are an inspiration to many. His speech saw the welcome introduction of the theme of restorative justice, another issue in which I have taken a long and deep interest. Restorative justice must be victim led, and there are various scenarios where it works most powerfully.
Having spoken to victims who have availed themselves of face-to-face meetings with perpetrators, often in a prison setting, I know that the sense not just of closure, but of regaining control that victims can get is a powerful factor. I was glad that the coalition Government placed restorative justice on a firmer statutory footing in previous legislation, because we see it at all levels, particularly in youth offending, where it can be extremely powerful to bring a young offender face to face with their victim. As long as restorative justice is led by the victim—it is not a substitute for more appropriate action where necessary—then it is a valuable tool.
The hon. Member for Rotherham made an important speech that dealt in particular with the Criminal Injuries Compensation Authority. She knows that the Government have committed to a review of the scheme; we have already committed to an important change to the “under the same roof” rule, which will be brought into force as soon as is practicable. She made other points about the position that people, particularly young people, will often be put into when it comes to consent.
The hon. Lady and I worked on the Serious Crime Act 2015 when it was in Committee, where we removed any suggestion that children were somehow impliedly consenting to sexual conduct when they were under the age of 16. If she remembers, we removed phrases such as “child prostitute” from the law. We tried in a constructive way to reset the clock when it comes to the protection of children, and let me be absolutely clear that victims who have been groomed should never be treated as if they consented. Let that message go out loud and clear to whoever needs to hear it. I am glad to say that the CICA has revised its staff guidance. That was done with engagement with the third sector, so I am interested to know of any instances where that concept of implied consent is somehow being reintroduced into the process when Parliament made it clear that it has no place in criminal law.
The hon. Lady also made other important points about unspent criminal convictions. Again, that issue must never be the subject of generalisation, and CICA claims officers should take into account the reasons for criminal behaviour when considering unspent convictions that do not result in a custodial sentence or community order. In other words, look at the person, not just the lines on a page. While it would be wrong of me to seek to intervene in individual cases—the CICA is independent—this is a useful opportunity for us to make such important points.
I get the point about time limits, and I have seen for myself the delay that understandably means that many victims of sexual offences will not come forward at the first opportunity. We are now light years away from the time when witnesses were asked such questions in court. People understand how difficult it is to come forward. We know that many victims often blame themselves for what happened, quite unfairly, and that this is about people doing things in their own time. Again, there is discretion when it comes to applications, but I have heard the point loud and clear today, and I am sure that that will help to inform the review.
My hon. Friend the Member for Walsall North (Eddie Hughes) rightly talked about the impact of domestic violence on children, who often witness it or even hear it in the home. We must not forget the effect of the sheer force of noise on young people. I am glad to note that courts up and down the country will treat that as a significant aggravating factor when it comes to sentencing perpetrators of domestic abuse. The scars might not be physical, but they remain for a long time, if not forever, in many cases.
The hon. Member for Lewisham, Deptford (Vicky Foxcroft) made some important points about cases of which she has had experience and, again, made the point that the need to improve practice now was imperative. Understandably, the debate has expanded somewhat from just the criminal justice process, but it is right to say that any victims legislation will apply to the victims of crime. That criminality can extend to major disasters, whether it is Grenfell or Hillsborough, and I am not going to prejudge the outcome of any proceedings, as they might well arguably be crimes themselves, although we will have to wait to see the outcome of any procedures. I take her point about the need for urgency, which is why the strategy does more than fill the gap. It brings together years of work and, importantly, looks to the future in a way that we can get to grips with now.
The hon. Member for Slough (Mr Dhesi) rightly reminded us of an aspect of the debate that we have not touched on today, which is to do with what I call hate crime. He quite properly reminded us of the appalling incident outside Parliament. He knows that I and others have supported the respect the turban campaign, and I have supported it in this place and in my local gurdwara in Swindon as well. He is right that we need to take these things seriously lest they take hold in a way that will reflect poorly on our society. Again, he mentioned stalking, harassment and sexual offences in that context. He was absolutely right to do that. He also mentioned the victim’s right of review and I can assure him that it already exists so when the CPS has a decision with which a particular complainant is not happy, they can ask for that to be reviewed. That is happening now, and in a number of important cases it is already there. Can I reassure him that although he then got on his soapbox a bit—and I am sure that he will forgive me for saying that—a lot of the recommendations made by the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others are things that we have already done or that we are doing via the strategy? As DPP, the right hon. and learned Gentleman took through massive changes to the CPS that I believe resulted in a more efficient service that still delivers a very high degree of justice for thousands of people year in, year out.
The hon. Member for Oldham East and Saddleworth (Debbie Abrahams) brought her knowledge and experience to the debate. In particular, she talked about the victim personal statement, and in a moving way. I know that she did not intend to be moved in that way, but it moved us. More importantly, it informed us. The victim personal statement is a vital opportunity not just for the victim to have their voice but for the court to be able fully to understand the impact on them. That is why I am particularly enthused by the proposals to use bodyworn videos to capture not just what is said but the way in which it is said and the sense that the victim statement should be a living document.
At the moment, there are sometimes one, two or three versions of the VPS designed to update the court. Asking the victim to make a statement again and again is not necessarily the best way to support them, so the concept of a living VPS would really help. Again, I am pleased with the work done by the CPS to co-ordinate and synthesise the increased use of VPSs across the service—it has to increase. In particular, the Under-Secretary of State for Justice, my hon. Friend the Member for Charnwood, has dealt with his commitment and our commitment to review the Parole Board process, and the hon. Lady’s comments have considerably informed that debate. We are recruiting intermediaries, and Members have seen our commitment to that. We need to make sure that when we use intermediaries, they are genuinely for the purpose of assisting the victim to give their evidence. I have used them myself in cases and achieved results that I would not have dreamt of without them, so I understand and get it. A major recruitment process is ongoing.
The hon. Member for Strangford (Jim Shannon) brought the experience of Northern Ireland as a welcome intervention into this debate. He talked about the wooden spoon, which, in rugby parlance, Ireland have won more than Wales. I do not think I had better dwell any further on his experience of corporal punishment. [Interruption.] The hon. Member for Paisley and Renfrewshire North mentioned Scotland, who are the doyenne of the wooden spoon, although they are getting better. I am talking about rugby union, Mr Deputy Speaker, which I know is a discipline you do not care for that much.
The Solicitor General
That is an entirely different debate. As you know, Mr Deputy Speaker, we have discussed it at length and heatedly in the past.
I am grateful to the hon. Member for Strangford for having carefully read the strategy and for helping to outline some of the important detail it contains. It is not just about warm words; it contains a lot of substance and, in particular, it outlines the use of best practice by a number of PCCs and other local services that we want to roll out further. The document is well written, accessible and can be read by a member of the public; it is written in “human being”, to coin my own phrase. That is why it is particularly valuable and important at this time.
The hon. Gentleman mentioned the new Minister for suicide prevention. I know she will want to work with both me and colleagues in the Ministry of Justice to make sure that we understand the position of victims. There have been some cases where, as a result of their experiences, we have lost them. A very important point was made.
The right hon. Member for Carshalton and Wallington (Tom Brake) raised the point about training. Frontline staff, whoever they are, need training, because they will often be involved in the victim’s only encounter with the criminal justice system. Every member of the team, be they a barrister, a legal executive or someone at the end of a phone, needs to understand the importance of our strategy, and how properly to support victims and witnesses. I have seen some really good practice in my experience both as a Member of Parliament and as a practitioner, and again this is echoed in the strategy.
In particular, the right hon. Gentleman asked about support for families bereaved by the tragedy of a homicide abroad. When a British person dies overseas, Foreign and Commonwealth Office staff are able to provide advice on how to repatriate their loved one and to support Her Majesty’s coroner if an inquest is heard in England or Wales. All consular officers receive mandatory training on how to support families bereaved overseas. We are currently completing a new homicide service, which will commence in April next year, so that families bereaved by homicides abroad will be entitled to the same support as those who are bereaved by homicide here in England and Wales. That is a vital commitment, and I am sure that the right hon. Gentleman will welcome it.
My civil servants worked overtime to prepare a draft speech for me, but because there has been so much substance in this debate, I have not needed it. I realise that all good things must come to an end, but, in all seriousness, this debate has been a very important part in the process of developing our strategy. I thank all right hon. and hon. Members for taking part, and I commend the victims strategy to the House.
Question put and agreed to.
Resolved,
That this House has considered the Victims Strategy.
European Union (Withdrawal) Bill
Robert Buckland ExcerptsWednesday 13th December 2017
(6 years, 5 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 13 December 2017 - (13 Dec 2017)
European Union (Withdrawal) Bill
Robert Buckland ExcerptsTuesday 21st November 2017
(6 years, 6 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 21 November 2017 - (21 Nov 2017)
Joanna Cherry
Indeed I will. The hon. Lady has, in her usual clear and incisive way, anticipated something that I was going to come to in a minute. Perhaps I will deal with it now, before I come to my list. As she says, the protection of fundamental rights is absolutely central to the Good Friday agreement, and has its own section in that agreement. The fact that the Bill will take the charter out of retained law raises concerns in this respect. The Good Friday agreement requires at least an equivalent level of protection of human rights in Ireland and Northern Ireland. If the charter is taken out of domestic law, there will be no such equivalent protection of human rights in Ireland and Northern Ireland, because once the UK withdraws from the EU, Northern Ireland will no longer benefit from the charter’s protections. This could pose significant problems for the Good Friday agreement—[Interruption.] The Solicitor General is shaking his head—
The Solicitor General (Robert Buckland)
I am listening with great care to the hon. and learned Lady’s remarks and to the interventions that she has taken. Let us not forget that the Good Friday agreement was written in 1998, and that the charter of fundamental rights appeared in 2007. It is the European convention on human rights that is the key governing principle here, not the charter.
Tommy Sheppard (Edinburgh East) (SNP)
I support those amendments that seek to ensure that the charter of fundamental rights is not exempted when we transfer powers from the EU after Brexit. Like many people I expect, I have received a lot of correspondence from constituents, and I wanted to start by reading from one—because time is short I will just read the last section of a letter from one of my constituents, Andrew Connarty:
“I feel that the EU and its legislative and judicial bodies protect me as a citizen and have a process of checks in place to protect my human rights, my legal rights and provide me with security. A lot of conversation in the media covers the rights of EU citizens in the UK who are foreign nationals, but what about the rights of EU citizens in the UK who are British nationals?”
Andrew Connarty is one of the great number of people in this country who are fearful of what is about to happen. For them, the process of leaving the EU is not some great liberation or removal of an alien superstate that oppresses them and over-regulates them. They see this as a loss of something of themselves; they see themselves as being diminished and lessened by this process.
Some on the Government Benches will say, “Well, that view does exist, but it is the view of a small liberal elite”. Indeed, a Member earlier tried to taunt a colleague by suggesting that the vote for remain in her constituency could not possibly have been motivated by concern about the charter of fundamental rights. I accept that the great mass of people are probably completely unaware of what particular rights we are talking about, but that does not mean they are unconcerned about them. Joni Mitchell probably summed it up best with the line,
“you don’t know what you’ve got
‘Till it’s gone.”
The reason is that by their very nature political rights do not put obligations on the rights holder—they do not have to be defended and claimed every day; they put obligations on everyone else. We all have to respect the rights of others. In particular, private corporations and public institutions have to respect the rights of others. It is not until they are changed and that relationship alters that people understand that something has been taken away from them. That is why it is absolutely vital that we educate people about the process now happening.
There was some debate about whether the rights in the charter are substantial at all, about whether they mean very much and about whether they are covered elsewhere in legislation. In 2006, this Parliament established the Equality and Human Rights Commission to advise us on such matters. I have read its briefing—I suspect most have—in which it cites clear examples of articles in the charter that are not replicated in other forms of legislation and states that, if the charter is not transferred or incorporated into British law, these rights will be lost. They include—I will not read them all: article 22 on child labour; article 8 on the right to be forgotten on the internet; article 26 on independence for disabled people; and article 24 on the access of children to both parents. These are rights that we have now that we will not have if the charter does not come over post Brexit.
It is not necessary to lose these rights in order to achieve Brexit. I say to the Brexiteers: I am not one of you but you can have Brexit without losing these rights. It is entirely possible. We do not need to do this, so why are we discussing it at all? The Minister said earlier that it makes no sense to have the charter if we are not a member of the EU, because it refers to the EU, yet the entire canon of European law is being taken over and incorporated into British statute, and this charter goes along with it to give citizens rights in respect of it. It makes total sense, therefore, to bring the charter over in the process of repatriating these powers.
There has been talk that it would be silly to bring the charter over because it would create anomalies and inconsistencies with other parts of the Bill, but the Bill already recognises that there are a million anomalies in the process and makes provisions to deal with them. We wonder, then, what is so special about the charter that it cannot happen there, too. Leaving that to one side, however, the most telling argument, as colleagues have said throughout the last six hours, is surely that it is operational at the minute. Why is our legal system not grinding to a halt under the pressure of these contradictions if they are so great? The truth is they are not so great. It works at the minute, and there is no reason it could not continue to work beyond 2019.
In the absence of a rational argument for the retention of clause 5 and schedule 1, I am compelled to find myself reaching the same conclusion as the right hon. and learned Member for Rushcliffe (Mr Clarke): what is happening here is pure politics. There are those on the other side who will be satisfied by being thrown this bone, and, as the right hon. and learned Gentleman put it himself, the idea of being able to get rid of a provision that includes both the word “Europe” and the word “rights” creates a double salivation, but I do not think that it just about sating those who are so Europhobic that they will get pleasure from this; I think there is something else going on as well.
The hon. Member for Eddisbury (Antoinette Sandbach), who is no longer in the Chamber, said earlier that the Government did not intend to remove or weaken our human rights, and I take that at face value. The Government have certainly not come here and said that that is their intention. In fact, no Members—or almost none—have said today that they want to remove people’s human rights, to weaken protection at work, or to lessen consumer protection laws in this country, although I rather fear that the hon. Member for Gainsborough (Sir Edward Leigh) nearly let the cat out of the bag when he referred to “the wrong people” having rights in the charter.
The hon. Gentleman talked about the repatriation of powers so that he could have “real human rights” in this country. I dread to think what he means by “real human rights”. I find him an honourable fellow and I am sure that he means no malintent, but I know that there are plenty of people in our society and in our community who will take advantage of any roll-back of civil and human rights protection to ensure that our religious and political freedoms are constrained so that they can adhere to theirs. I think we need to be eternally vigilant, and I hope very much that the Government will feel able to think again.
I say this to those in the centre ground of the Tory party: “If you are just trying to keep the good ship together and keep every faction on board, and if you think that by giving this concession on human rights you will shore up the Government’s support, remember that your former leader David Cameron thought he would be able to do that by having a Brexit referendum in the first place, and look how that has worked out.” I sincerely say to them, “Once bitten, twice shy. Please think again.”
The Solicitor General
It is a pleasure to follow the hon. Member for Edinburgh East (Tommy Sheppard). Let me take this opportunity to assure him yet again that our commitment to rights and freedoms remains absolute. I spent nearly 20 years at the criminal Bar dealing with the liberty of the individual. Indeed, I think I was a human rights lawyer before we even coined the phrase, as were many other Members on both sides of the House.
The point has already been made that our rights and freedoms long pre-date modern developments, but modern developments have no doubt helped to sustain, improve and enhance the range of those freedoms. The fundamental question that we seek to ask about the charter is whether, in the final analysis—as we are no longer to be members of the European Union—it adds anything relevant or material to the sophisticated and developing body of law that has evolved over generations. I do not think so, and I have reached that conclusion after extremely careful thought.
It is tempting, after a long debate, to try and treat this as a Second Reading wind-up, but we are far from that. Other Members are anxious to take part, and I am mindful of the time. I will therefore be true to the principles of debate in Committee, and deal with schedule 1, which I hope will be agreed to. In doing so, however, I will address the various amendments that have been tabled on pages 8 to 12 of the amendment paper—which is still the same size although we are now on day three of the Committee stage, and I am pretty confident that that will remain the case.
Mr Kenneth Clarke
Before my hon. and learned Friend moves on—very authoritatively, I am sure—to the details of the amendments, may I point out that he has just made an important statement? He said that he had thought about whether retaining the charter of fundamental rights after we had left would add anything to our legal rights in this country beyond what we already have. In the past half hour, we have heard my hon. Friend the Member for Eddisbury (Antoinette Sandbach) describe what she calls the third category of rights, which do not appear anywhere else in our law, and we have just heard the hon. Member for Edinburgh East (Tommy Sheppard) list three or four rights in the charter that are not replicated anywhere else. Which of those rights would the Solicitor General be happy to see abandoned? What is going to happen to the third category of rights? He must explain why he does not think the charter adds anything, given that the main reason people are trying to get rid of it is that it has extended the scope of European-sponsored human rights law in this country.
The Solicitor General
As the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab) has mentioned, the Government will, on 5 December, publish their full analysis of the sources of the rights that we have been talking about. I remind my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the underlying principles of EU law from which the charter has been developed will be part of the body of law that we bring down to the UK, and will be able to be relied upon.
Mr Cox
Is not the answer to my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) that the rights might not be replicated in our existing law but the protections will be? The fact that a general statement of a right is not replicated verbatim in our law does not mean that those rights are not otherwise protected adequately and fully by our laws.
The Solicitor General
I am grateful to my hon. and learned Friend, but I feel as though I am about to become a proxy in a debate between him and my right hon. and learned Friend the Member for Rushcliffe, so I will now develop my point.
The Solicitor General
If I may, I will move on to amendment 10, which would remove paragraphs 1 to 3 from schedule 1. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) earlier drew the attention of the Committee to these important matters, and I am grateful to him for the constructive way in which he has sought to approach this issue. First, we cannot agree to the removal of paragraph 1 because the effect would be to create huge uncertainty. How would our domestic courts approach the task of assessing challenges to the validity of converted law? That is a job that they have never had before. Who would defend those challenges? What remedies would be available to the courts? How could converted law that was found to be invalid be replaced? The amendment does not deal with any of those vital questions.
Similarly, we cannot accept that paragraph 2 should be removed from the schedule. There is no single definitive list of the general principles. They are discovered and developed by the Court of Justice of the European Union. Paragraph 2 in its current form maximises certainty by specifying a clear cut-off point and stating that a general principle needs to have been recognised by the Court before we exit. Without that, it would be completely unclear which general principles could be used as the basis for a challenge. It is not even clear whether post-exit CJEU jurisprudence could be taken into account, and so whether new principles couldbe discovered after exit. That would be completely inappropriate.
Mr Grieve
I would like gently to point out that I did not propose deleting the interpretation provision 5(2). Admittedly, it does not interpret anything because the rest is gone, but it nevertheless made it pretty clear that we were talking about retained EU law and that such law was created prior to the date of our exit.
The Solicitor General
I think that my right hon. and learned Friend has answered his own point. Without sub-paragraph (2), paragraph 5(2) becomes rather difficult to apply. I want to get to the nub of his concern, however, which is paragraph 3 of the schedule. We recognise the strength of the views that he and other Members on both sides of the Committee have expressed on this issue, many of whom have spoken this afternoon. We are listening, and we are prepared to look again at this issue to ensure that we are taking an approach that can command the support of the Committee.
Simply removing paragraph 3 in its entirety, however, is not something that we could agree to. It would result in an open-ended right of challenge based on the general principles of EU law, however they are defined, after exit. It would mean that domestic legislation, both secondary and primary, rules of law and executive action could be disapplied or quashed if found to be incompatible with those actions. Currently, the general principles apply when a member state is
“acting within the scope of EU law”,
so after exit the circumstances in which the general principles could be relied upon would not be clear.
Allowing courts to overturn Acts of Parliament, outside the context of EU law, on the basis of incompatibility with these principles would be alien to our legal system and would offend against parliamentary sovereignty.
Mr Grieve
My hon. and learned Friend raised the question of scope and when this would apply, but it seems to me that he was answering his own question, because it comes when there is a clash between the law that has been retained and has supremacy and any domestic legislation. It is precisely because the supremacy of the retained EU law is kept that it is necessary also to have the potential for the general principles to have that supremacy as well, because they are essential to the purpose of interpretation of that law.
The Solicitor General
I wanted to deal with the issue in this way, because it seems to me that the nub of the issue that my right hon. and learned Friend is concerned about is with regard to the rights of challenge relating to pre-exit causes of action. It would be possible to retain those, and in relation to executive action even after exit in areas covered by retained EU law. We can agree that there should be appropriate mechanisms for challenging the actions of the Executive. I am happy to discuss further with him what might be needed. I am also willing to discuss whether there needs to be some further route of challenge on secondary legislation.
The rights landscape is indeed complex, and we are seeking with this Bill to maximise and not remove any substantive rights that UK citizens currently enjoy. In view of my commitment to look at this again, I invite my right hon. and learned Friend not to press amendment 10 and to agree to work with us in this shared endeavour. The Government will bring forward our own amendments on Report for the purposes of clarifying paragraph 3 of schedule 1.
Sir Oliver Letwin
I am grateful to my hon. and learned Friend, who has just said some of the words that many of us hoped to hear, which is that Government amendments to that effect will come forward on Report. Will that include an appropriate amendment to paragraph 3(1) on the private rights of action?
The Solicitor General
Let me turn to paragraph 3(1) of schedule 1 to be absolutely clear. I am interested in looking at all aspects of that provision: sub-paragraphs (1) and (2).
Mr Grieve
I am most grateful to my hon. and learned Friend, who has made a really important concession at the Dispatch Box, which I much appreciate. It clearly reflects the disquiet that has been shown across the House. I can tell him now that, in the light of that, I will not be pressing my amendment to a vote. However, it is clear from what he has said that although some of the issues that I have raised have been met, I ought to put it on record that it is also clear that the issue about whether this could be used to disapply primary legislation appears to remain an area of potential disagreement between us, which I hope we may be able to iron out. I have to say that it is a strange area of disagreement, given that elsewhere we have precisely the possibility of that happening, by virtue of keeping the supremacy of retained EU law.
The Solicitor General
As I have said, I want to ensure that the dialogue that has been opened continues. My right hon. and learned Friend knows that at all times the spirit with which he and other hon. Members have tabled amendments has been entirely understood and respected by those on the Treasury Bench. We have never sought to pillory Members for doing the job of scrutinising legislation. I have been there myself many times and can remember tabling dozens of amendments in order to probe the Government’s intentions in a Bill.
Mr Kenneth Clarke
We are making some progress, but I point out that I am the second name on the amendments tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and I shall inquire of the Chair between now and the end of the debate whether I have a right to call for a vote on those amendments, which I think I may have. I am extremely glad to hear the Solicitor General say that he will bring forward a Government amendment, because he has vigorously rejected just about every argument that my right hon. and learned Friend has used throughout the debate and has stuck rigidly to the interpretation of the Bill as it stands—with which we started. Will the Government’s amendment at least seek a compromise if it does not move completely towards my right hon. and learned Friend’s arguments? It is no good fobbing us off with more discussion if the amendment will not actually change the policy.
The Solicitor General
With respect to my right hon. and learned Friend, I have talked in detail about the various paragraphs of schedule 1, and I have been looking in particular at paragraph 3. In response to the clarifications sought by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin), I made sure that all of paragraph 3 would be the subject of that clarification and the tabling of an amendment. Neither my right hon. and learned Friend the Member for Rushcliffe nor I are fans of having our cake and eating it when it comes to EU withdrawal and, with respect, I am offering something substantial here that will certainly satisfy him this evening.
Sir William Cash
I hope that the Solicitor General will be good enough to look at the deficiencies in amendment 10. Paragraph 5 of schedule 1 deals with interpretation and therefore also applies to paragraphs 1 to 3. As he quite rightly said before he took the intervention, the matter is being scrutinised. As Chairman of the European Scrutiny Committee, we have it on our agenda, and we are scrutinising all such matters and will continue to do so, because we want to be sure that this House is not overridden by disapplication.
The Solicitor General
I am grateful to my hon. Friend. I am always interested in looking at how one particular paragraph of a schedule applies to another, but I am particularly interested in paragraph 3.
The Solicitor General
I will give way to the hon. Lady, who has been very tenacious. Please forgive me.
Lady Hermon
Patience is a virtue, and I am not blessed with an abundance of it, so I am grateful to the Solicitor General for taking my intervention, even if I have been bobbing up and down for ages.
The Solicitor General has made an important concession this evening, and I respect that. When he carries out his promised review of the Bill’s impact on rights and the general principles, may I invite him to look carefully at the impact on the Good Friday agreement? The Bill is being used in a divisive manner at home in Northern Ireland, where it is being exploited by those who wish to do so, so it would be enormously helpful if the Solicitor General could reassure us that the Bill will not have a negative impact on the Good Friday agreement.
The Solicitor General
I know that the hon. Lady has a deep, long-term commitment to ensuring that the Good Friday agreement and the subsequent progress are maintained, and I share that commitment 100%. While I may not have the same knowledge that she has of Northern Ireland, I am sensitive to and understand the fact that there is still no essential consensus about what human rights should mean for every corner of Northern Ireland. It is in that spirit that I will be happy to ensure that the impacts on Northern Ireland are fully considered at all stages of any review, re-examination or clarification of the Bill. I am grateful to her for making that observation.
The Solicitor General
I had better make some progress, but I certainly will give way to the hon. and learned Lady in a moment.
The Solicitor General
If the intervention relates to the point I was making, I will give way.
Paul Blomfield
I thank the Solicitor General for giving way. It is important that the House has clarity on the content of the memorandum he proposes to publish on 5 December. He has said that the memorandum will seek to identify the sources of each right contained within the charter. He has heard in today’s debate that there is concern on both sides of the House that he will not be able to identify the sources of every single one of those rights, and a number of instances have been cited. Will he also undertake that, where there are gaps, his review will outline what action the Government are preparing to take to fill those gaps so that, at the point of exit, we retain all the existing rights?
The Solicitor General
I make it clear that, in the words of both the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton, today and, previously, the Secretary of State for Exiting the European Union, we are seeking to publish such details. If there are any further concerns, we can have a continuing dialogue to ensure that the information is in a comprehensive form that seeks to address the issues raised today and elsewhere. The publication on 5 December will therefore be a meaningful event that assists everybody in greater understanding and assists greater progress on getting this process right.
On the question of general principles, I emphasise that there are good reasons to say why it would not be appropriate to incorporate the constitutional and administrative principles of the EU as free-standing principles in our law by inserting a specific right of action, or to incorporate the remedy of striking down domestic legislation based on incompatibility with EU law principles, when we are no longer a member of that institution. First, some of these principles will, indeed, cease to make sense when we have left, except for the purpose of interpreting retained EU law, whereas other principles are already, and will continue to be, reflected elsewhere in our domestic law anyway.
Mr Grieve
Has not the Solicitor General, again, just answered his own question? I appreciate that some of the general principles will evaporate because they cease to be relevant, but those that are relevant to the interpretation of retained EU law must still be relevant because they will be used as a tool and aid to interpretation. In those circumstances, why should an individual or a business be deprived of raising them as arguments for saying that, in fact, this law is supposed to be supreme, and therefore able to overcome our own domestic legislation, and ask why the general principles cannot be used to have that bit of offending domestic legislation set aside? I just do not understand the rationale.
The Solicitor General
The rationale is quite straightforward in the sense that, in seeking to achieve maximum certainty, there is danger in allowing the system to create a situation in which the law might rapidly degrade in a way that does not achieve such stability and certainty. I accept it is almost reverse logic, but there is logic in trying to make sure that we have an identifiable and pretty understandable body of retained EU law.
I give the example of the EU principle of good administration, which will not have any relevance to our UK law after exit because, of course, the bodies vested in EU agencies will be returned here and all the normal domestic rules about the exercise of such powers by public bodies will apply. Another example is the principle of subsidiarity, which does not make sense outside the concept of EU membership.
Secondly, the Bill will, of course, take a snapshot of the law as it stands at the moment we leave. Retaining a right of action based on general principles of EU law, which will of course change in the future, would lead to uncertainty for businesses and individuals about their rights and obligations if we end up in a situation where pre-exit legislation could be struck down, or where administrative decisions could be challenged, on the basis of those principles.
In other words, that is an echo of what I was just saying to my right hon. and learned Friend. This is particularly the case given the uncertainty about the way in which principles could develop or about the circumstances in which they would apply after exit. It would make no sense to bind ourselves to such an imprecise, open-ended and uncertain set of principles—it does not mitigate legal uncertainty, but increases it. It makes no sense, once we are no longer an EU member state, to bind ourselves to a set of principles that are the EU’s judge-made constitutional principles, when we have our own constitutional and common-law principles. Such an approach risks duplication and confusion.
Perhaps more fundamentally, outside the context of EU law, the ability for courts to disapply primary legislation is just inconsistent with the way our constitution works and the balance of powers that has to exist between the legislative and judicial branches.
Vicky Ford
I thank the Solicitor General for saying that he is going to look seriously at these points during the Committee stage. The point of bringing EU law into the UK law is to give certainty. Each of those European regulations has strict articles—the letter of the law—and the recitals, which give guidance as to how it is to be interpreted and implemented. Will he assure me that he will seek to ensure that our judges will look at not only the articles, but the recitals—the principles behind it?
The Solicitor General
I can assure my hon. Friend that that will be the case. We had a debate about this in a slightly different context earlier in Committee, but I can assure her that all that material is relevant for any court that might have to interpret it.
Joanna Cherry
I am just reminding the Solicitor General that I asked him to answer a crucial point earlier relating to the statement made by the Prime Minister’s spokesperson that the Government expect the ECJ’s role to be unchanged during an implementation period of two years following the official Brexit date in March 2019. If that is so, it completely undermines the premise of clause 5 and schedule 1, which revolve around exit day. Is he seriously still considering allowing these clauses to stand part of the Bill, in the light of what was said this morning?
The Solicitor General
The hon. and learned Lady has a keen memory and she will not have forgotten the Government’s commitment to a separate withdrawal agreement Bill, within which will be provisions relating to the implementation, the interim, the transition period— call it what you will. It is to that period that the Prime Minister was addressing her remarks. The fact that this Bill is taking a particular course on legal exit is nothing to do with the transition period, which has to be a separate matter, and the Government have rightly made it clear that they will bring legislation to this House in order for it to determine the law when it comes to the transitional period.
I really must press on now. The right hon. Member for East Ham (Stephen Timms) made the most important reference to the data protection amendment that stands in his name, but the hon. Member for Argyll and Bute (Brendan O'Hara) also spoke well about this. Let me just make these observations: the UK does not have to be subject to the charter in order to benefit from adequacy decisions on data protection once we leave the EU, because the charter applies to EU institutions and EU member states when acting within the scope of EU law. Countries that benefit from adequacy are third countries and are not required to be subject to the charter. There are many examples of countries that have adequacy by virtue of the data protection directive of 1995, including Canada, New Zealand, Switzerland, Uruguay, Argentina and the Faroe Islands.
I must also deal briefly with the further effects of amendments 101 and 336, which specifically seek to set out an ostensibly broader definition of which general principles are to be retained under the Bill to include principles as they are recognised in any EU legislation as well as case law.
The Solicitor General
I am sorry but I must press on.
The first point to make on the amendments is that whereas some of the general principles are now set out expressly in the EU treaties, the general principles were first recognised by the European Court of Justice. They were and are judge-made law, and all the principles ultimately have a basis in case law.
We debated the inclusion of article 191 of the Lisbon treaty on the functioning of the European Union at length on day two of Committee, so I will not repeat those arguments here. That said, though, I wish to re-state that the inclusion of article 191 would risk going further than the existing principles that are set out in EU and UK law today. The requirements that the amendments set out do not exist today in either EU or domestic law. If the amendments were made, they would require the courts to interpret all legislation compatibly with the environmental principles. Given that the Bill’s purpose is to bring into effect the law that we have currently, the amendments regrettably risk generating a measure of uncertainty and a degree of confusion about the legal position.
Anna Soubry
May I return to clause 5(1)? It states:
“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”
Will the Solicitor General please look at that in light of the Government’s excellent determination that we will still effectively be subject to the ECJ during the beginning of the transition period, because if that is to be the case, it is not consistent with clause 5(1)?
The Solicitor General
I know that my right hon. Friend listens carefully to everything I say, and I am sure she would agree, first, that the transition period rightly has to be the subject of separate legislation—the Bill on the withdrawal agreement that will come before the House in due course—and secondly, that we have to cater in this Bill for as high a degree of certainty as possible for that legal exit date. That certainty is an important first step before we get into the question of transition—that interim period that I accept needs to be underpinned by primary legislation passed by this House, but which is a separate and distinct stage. I do not think there is any contradiction between the position that we want to take in a transition period—subject, of course, to the negotiation—and the clear position that we want to take in the Bill.
Before that intervention, I was dealing with amendments 101 and 336. Amendment 336 goes further, in that it would give a right of action based on a failure to comply with the environmental principles, and legislation would be at risk of being struck down by the courts if it was not compatible with them. I hope that Members were reassured and encouraged by the announcement by my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs on 12 November of our intention to create a new comprehensive policy statement setting out the environmental principles. That statement will draw on the EU’s current principles and will of course underpin future policy making.
The Bill takes the right approach by retaining the principles as they have been recognised by the European Court, thereby providing the greatest possible clarity and certainty. Amendment 336 would alter the approach to the taking of that snapshot of EU law as it applies immediately before exit day. It effectively prejudges the outcome of the negotiations and introduces inflexibility, by seeking to bind us to decisions made by the European Court on general principles for the full duration of any implementation period. That pre-empts and prejudices the outcome of the negotiations. On that basis, I urge right hon. and hon. Members not to press their amendments.
Paragraph 4 of schedule 1 removes the right to what are commonly referred to as Francovich damages from our domestic law after exit. That form of damages is a specific EU-law remedy that arises only in certain limited circumstances when an EU member state, or an arm of that state, has committed a “sufficiently serious” breach of its EU law obligations and there is a direct causal link between the breach and the damage. This is not a wide-ranging general right to sue the Government; rather, it is inextricably linked to and constrained by EU membership. Nor, as some have suggested, is this an everyday course of action for the average citizen. The number of actual Francovich cases heard by UK courts over the past 26 years is relatively low. Estimates vary, but studies suggest that, in the 20 years following the decision in Francovich, there had only been between 22 and 25 cases.
The Solicitor General
No, I will not give way, as I need to develop my point.
For example, in 2015, in their legal challenges to the domestic legislation standardising the packaging of tobacco products, the tobacco companies reserved their right to claim Francovich damages should they succeed on the substance of their claims against the Government. I make this point because any suggestion that removing the Francovich procedure reduces access to justice for the average citizen is not reflected in the UK experience.
Mr Grieve
I am very grateful to my hon. and learned Friend. I understand everything that he is saying. He knows what I have said about Francovich damages and their disappearance being inevitable, but the point about the transition is key. I have to say to him that it is not a comfortable argument for a Law Officer of the Crown to make to suggest that just one person, or one business, being deprived of a legal right is an acceptable circumstance, because it plainly is not.
The Solicitor General
I did not say that. If that was the impression that was created, I am afraid that my right hon. and learned Friend is mistaken. What I am talking about is trying to balance out and put into context the use of this particular procedure, which needs to be done because we have not heard the other side of the argument. That is what I am seeking to do.
By contrast, all existing domestic law routes of challenge and remedies for breaches of retained EU law will remain undisturbed. For example, this provision does not affect any specific statutory rights to claim damages in respect of breaches of retained EU law—such as under the Public Contracts Regulations 2015—or the case law which applies to the interpretation of any such provisions. Nor does it affect the right to challenge the decisions of public bodies by way of judicial review. Claimants will also still be able to seek remedies through the law of tort, by establishing negligence or by a breach of statutory duty, and they will also still be able to make a claim for restitution for unlawfully levied tax or charges.
The existing right to Francovich damages is linked to EU membership and the obligations that we have as a member state to the EU at an international level. There is clearly a difference between substantive EU law, which is being kept by the Bill to prevent legal uncertainty, and the supranational procedural rules, principles and frameworks that will no longer be appropriate once we have left the EU.
Let me turn briefly to amendments 139 and 302, which take a slightly different approach. They would maintain the right to Francovich damages in domestic law, but only in relation to pre-exit causes of action. Amendment 335 would similarly maintain the right to Francovich damages in domestic law for causes of action occurring during any transitional period. The Bill sets out elsewhere—at paragraph 27 of schedule 8—that the exclusion of the right to Francovich damages would apply only in relation to claims that are brought after exit day.
I would like to assure my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan), and indeed all Members, that we will consider further whether any additional specific and more detailed transitional arrangements should be set out in regulations.
Mr Grieve
I am delighted to hear the Solicitor General say that. As he will appreciate, the point is a very simple one: it must be the case that the damages are available if the action takes place before exit day. It is a very basic principle of law and quite easy to correct.
The Solicitor General
Perhaps I can forgive my right hon. and learned Friend his eagerness to hear the remarks that I was going to make. I am sure that when this debate finishes he and I will continue the dialogue that we have had for some time about these matters.
It would not be right to maintain, in general, such an open-ended right to this form of damages after exit for any and all potential pre-exit causes of action. I am concerned that we would end up with an almost indefinite trail of cases. That is not good for certainty, and it is not good for the transition we want to make.
Richard Graham (Gloucester) (Con)
Before the Solicitor General finishes his remarks, may I say, as a non-lawyer listening to what has largely been a debate between distinguished legal minds on both sides of the House, that two things strike me as important? The first is that this debate has really been about legislative quality control, rather than political Punch and Judy, and that should be very reassuring for anybody watching this debate. The second is that the tone with which my hon. and learned Friend and his colleagues have engaged with colleagues on both sides of the House to find a way through and to make the best law sends a fantastically powerful message. Will he guarantee to continue working in this spirit to take the Bill forward?
The Solicitor General
I am very grateful to my hon. Friend for making that observation. [Interruption.] I can assure Opposition Members that I have listened carefully to the submissions and observations by Members on both sides of the House, in the true spirit of Committee.
Mrs Cheryl Gillan (Chesham and Amersham) (Con)
I am most grateful to my hon. and learned Friend for giving way, because, unfortunately, I was not able to be in the Chamber for a large part of the debate, as I was chairing a Bill Committee. I thank him for taking into consideration the points I raised on behalf of my constituent concerning Francovich. I hope that what he is a saying from the Dispatch Box will go a long way towards providing the comfort and certainty my constituent requires. May I thank those on the Front Bench for listening to the points I made in the debate the other day? I hope this will move us towards a successful conclusion in the case of my constituent.
The Solicitor General
I am extremely grateful to my right hon. Friend.
For the reasons I have outlined, I would, with the greatest of respect, and in the spirit of comradeship almost, urge hon. and right hon. Members not to press their amendments.
In summation, we have listened and we will continue to reflect carefully on all the arguments that have been made today. The Government believe that the approach we are taking is the right one as we carefully separate our legal system from that of the EU and restore democratic control to this Parliament. I commend schedule 1 to the Committee.
Darren Jones
I rise to speak in support of amendments 8, 46 and 79, the excellent amendments 101 and 105 from my hon. Friend the Member for Bristol East (Kerry McCarthy), amendment 151 and, given the list rattled off by my hon. Friend the Member for Sheffield Central (Paul Blomfield), a whole lot more as well.
While I have enjoyed the opportunity today to intervene on the legal debates the hon. Member for Gloucester (Richard Graham) pointed to, it is also important, as we come towards the end of today’s debate, to think about general principles—to take a step back and to think about the politics of what we are debating today, as opposed to just the legal issues, which I may touch on briefly.
The EU charter of fundamental rights is exactly what it says on the tin: it is a statement of fundamental principles—an anchor—with which European legislation must comply. It protects the grounding of what we deem to be acceptable in our democracy. Legislative details are, of course, for debate, but we must anchor them to those fundamental rights because, as we have heard today, failure to do that can lead to actions in the courts and the awarding of damages.
The Minister of State, Ministry of Justice, who is not in his place, said from the Dispatch Box earlier that the EU charter has no standing and therefore means nothing, but I respectfully disagree. When my constituents have the right to bring actions in the courts, and in certain circumstances to receive damages, that has value—that means something to citizens. Those are fundamental, enforceable rights, which we should be proud of.
It is right to say, of course, that the UK need only respect these rights when implementing EU law, but, as we know too well, and as we will learn over the coming weeks and months, the tsunami of EU law that we seek to copy and paste into UK law comes with principles we must protect.
My earlier intervention provides one example of why the Government’s policy is nonsensical. The fact that we are bringing ECJ case law into UK Supreme Court case law under the Bill means that the case law around the charter of fundamental rights will be in the case law of this country, yet we are not willing to bring the charter with it. That cannot make sense unless the Government are saying that they wish to pick the cases out of ECJ jurisprudence when they give them UK Supreme Court status.
My right hon. Friend the Member for East Ham (Stephen Timms) raised very powerfully the issue of adequacy and equivalence in relation to the Data Protection Bill. The Government may find it politically uncomfortable to recognise the obvious fact that on financial services, data protection and other issues where we seek to maintain equivalence in the European market, we must track and embed EU jurisprudence in order to do so. In the context of the general data protection regulation and the Data Protection Bill, that means respecting the fundamental right that one’s data is protected under the EU charter.
In the absence of those on the Treasury Bench saying to me and to the Committee which of these rights they so vehemently disagree with, I am left to draw the conclusion, in common with the Father of the House, that the only thing the Government seem to be unhappy with about the charter of fundamental rights is that is preceded by the letters E and U. Yet my constituents will suffer losses in rights and losses in their ability to enforce those rights. This is not a question of ideological Brexit party politics but of fundamental rights that are enforceable by my constituents and the citizens of this country. We cannot play politics with these issues. If we fail to keep the charter of fundamental rights, we fail to ensure that the laws brought in under this Bill are anchored to the fundamental principles on which they are drafted. As we have heard, that leaves judges to interpret the rights of citizens in the direction of the winds of the day without the statutory anchor that holds them true to their underlying principles.
Having touched on legal issues, I will move on to the general principles. If we lift our heads out of the bucket of sand that is Brexit and look around us, we must ask what repealing the charter of fundamental rights says about the type of country we are and wish to be. One of the outcomes of this Brexit process is that with the removal of the charter we have failed to set out a vision of an acceptable basis for a developed, modern democracy like Britain. That is why I support the amendments. I sense that we have lost our way, because removing these fundamental rights says something about who we are and how we should conduct business as a country. The pride that all of us share in what it means to be British and our influence in the world is based on the standards that we set at home and abroad. The purpose of having the EU charter of fundamental rights is to make a statement of the standards that we should be proud of as a developed, modern democracy. I, for one, want to continue to be proud of my country.
Speaking as a desperate remoaner, and a proud one, I have to say loud and clear that the direction of travel that we are seeing through this mess of a negotiation on Brexit, and the fact that we are debating something as nonsensical as removing the EU charter when it causes us no problems and we are bringing ECJ case law into the case law of the UK anyway, shows that we do not know what type of country we want to deliver for our citizens. In the context of losing thousands of jobs from agencies relocating and, for the first time ever, losing our seat on the UN International Court of Justice, I am filled with desperation about what type of country we are seeking to deliver.
I do not see from this Government a vision of what Britain looks like in future, and removing these fundamental rights goes to the heart of that. I want my constituents and the citizens of this country, and citizens around the world, to look to Britain to see that we protect and recognise these fundamental rights—rights that we should be proud of. I think that as Brexit continues to unfold and my constituents, and others, continue to see the losses they are suffering as a consequence of the referendum —the loss of access to the single market, the loss of access to the customs union, and today the loss of rights that are currently protected in law—they deserve the right to change their mind.
I say once again to Government Members on the Treasury Bench, who are no doubt listening intently to my comments—[Laughter.] Thank you. I say to them that this is clearly a question of politics, rather than of law, as we have heard today. I plead with them to put the ideological Brexit party politics to one side, bring sense to the Dispatch Box and protect the enforceable rights of my constituents and the citizens of this country, as proudly set out in the EU charter of fundamental rights.
European Union (Withdrawal) Bill
Robert Buckland ExcerptsTuesday 14th November 2017
(6 years, 6 months ago)
Commons ChamberRead Full debate European Union (Withdrawal) Act 2018 View all European Union (Withdrawal) Act 2018 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 14 November 2017 - (14 Nov 2017)
The Solicitor General (Robert Buckland)
I am listening with great care to the hon. and learned Lady. She will agree that references to the Court of Justice are made by the courts to interpret a particular provision of EU law, not by individuals. That is an important difference that I am sure she will appreciate.
Robert Neill
That is absolutely right, and it is critical. With respect to the Minister of State, that is why I do not think the financial services sector will take much comfort from his rather high-level dismissal of these proposals earlier.
Let me just say what these two amendments, in my name and that of my hon. Friend the Member for Wimbledon (Stephen Hammond), seek to do. They seek to give a general interpretive tool to assist the transposition process. We all accept that that has to happen in that domestication into the statute book. They would interfere with the powers to make regulations conferred by clause 7, but they would reduce the need for regulations. I should have thought that it was preferable not to have to operate by regulation if we could avoid it. If we have a known and established interpretive code, that will save the need to make lots of regulations under clause 7. However, it would also, as the Minister rightly observed, provide a backstop, and that would deal with gaps that are identified but that are not picked up in the transposition process. That is what subsections (A1) and (A2) of amendment 357 would achieve.
These changes draw on rules of interpretation that, as I indicated in my intervention earlier, were proposed by the International Regulatory Strategy Group. That body is co-sponsored by the City of London corporation and TheCityUK, and I am indebted to the Remembrancer’s Office of the City of London corporation for the drafting of these amendments—it takes the credit for the ingenuity.
The Solicitor General
I absolutely take the spirit in which these amendments are made, and I am grateful to the Remembrancer’s Office, but does my hon. Friend not agree that we need to be cautious? He thinks that this general interpretive approach will, of itself, amend deficiencies, but does the fact not remain that we would still have to amend deficiencies in legislation, even with these otherwise helpful-looking provisions?
Robert Neill
I do not disagree with the Solicitor General about that, but I suggest that it is not an either/or scenario. I very much hope that he will indicate that he is prepared to continue working with me and the authors of the amendments to take this forward. I see that he nods his assent, and I am sure that we can find a constructive means of doing so.
Let me explain why this is important. The first of the rules, in subsection (A3), would confine the territorial scope of the retained EU law to the UK. That would put it on the same territorial footing as domestic law, therefore ensuring that as a general principle, retained EU law would no longer enable or require people or businesses in the UK to do, or to stop doing, something in an EU country. It is perfectly logical from that point of view.
The second rule would ensure that reference to a member state in an EU law that has been domesticated was taken, post Brexit, as a reference to the UK. That would ensure that domesticated EU law would in fact fully apply in the domestic sphere, removing any ambiguity on that point. That will be necessary in a large number of instances to avoid the situation in which the UK will, in effect, be treated as a third country for the purposes of its own laws where retained EU law is currently framed by reference to the whole EU. That would be an absurdity, and we are seeking to remove that risk.
The third rule, in subsection (A5), would transfer all the functions exercised by EU bodies to the Secretary of State. I take the Minister’s point that not all those will necessarily be exercised by the Secretary of State. It is not prescriptive in that way—it need not be, and we can talk about that—but it would deal with the many instances where such functions are transferred to an appropriate Secretary of State as well as providing, again, a legislative backstop to cater for circumstances where the alternative arrangements had not been put in place in time, so that there is no cliff edge in that regard.
The fourth rule deals with the many situations where domestic authorities are required, either outright or as a precondition, to exercise their own functions to deal with EU bodies or authorities in member states. What does that mean in practice? It covers, for instance, cases where the UK body has to notify, consult or get the approval of an EU body before taking a particular course of action.
Robert Neill
That is entirely right. That rule would preserve the flexibility to co-operate with European partners and to trade into the European markets—regulatory equivalence will be critical to achieving that—and it would do so without the risk of facing any inappropriate legal constraints on the UK’s own operations once we have left.
I am not suggesting that the answer to everything is in this amendment. It is tabled in the spirit of wanting to work with the Government as we move forward, but it does go a long way towards delivering, in a relatively simple manner, the objective of having a functioning statute book on exit day.
Amendment 358 deals with what those who worked on this perceive as a potential gap concerning the interpretation of domesticated EU law. Clause 6(3), as has already been observed, will preserve the effect of case law laid down before exit day. Clause (6)(2) will provide discretion, and we have talked a lot about taking that into account. I listened with interest to the speech by the hon. and learned Member for Edinburgh South West (Joanna Cherry) regarding her amendment on that point. Again, this amendment does not provide the whole answer, but it raises serious issues that need to be looked at, and I hope that Ministers will do so.
The Solicitor General
For the sake of clarity, I think that my hon. Friend will find that schedule 8(25) contains enough scope for other documents of the type that he mentions to be considered by the courts. I hope that I have given him enough reassurance on that point.
Robert Neill
I am grateful to the Solicitor General for that clarification. Perhaps he could confirm that he is happy to meet me and we can discuss that. [Interruption.] He says that he is of course happy to do so. I am grateful to him for that very constructive response, and characteristically so. That will enable us to deal with things like negotiating texts, which we sometimes know of as the travaux préparatoires within the EU context. [Interruption.] Again, the Solicitor General confirms that that is the sort of thing that we can discuss.
Why is that important to the International Regulatory Strategy Group, and why is the group central to this? Its membership includes virtually all the significant representative institutions of the London financial community: the stock exchange, the Association for Financial Markets in Europe, the Association of British Insurers, the British Bankers Association, the City of London corporation and major commercial organisations such as Credit Suisse, Aviva, Allen & Overy, Allianz, Fidelity, HSBC and Lloyds. The list includes all the key underpinners of the City’s operation.
We need to take those important matters into account, and I am grateful to the Solicitor General for his willingness to meet and discuss them. I commend to him and other Ministers the observation made by my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) about the Francovich cases. It clearly cannot be the Government’s intention to remove people’s opportunity to seek remedies for wrongs that were done prior to our departure. My right hon. Friend raises a critical issue, and it is important to get this right.
I hope that Ministers will observe that the guidance in clause 6(2) is clearly not sufficient to meet the concerns of our senior judiciary and that they have said as much. When Lord Neuberger, a distinguished President of the Supreme Court, says that, ironically, the discretion is so wide that it puts judges at a degree of risk of political attack, he has to be taken seriously. Several right hon. and hon. Members have praised the quality of our judiciary, and I totally agree with them. We ought to listen very carefully when our judiciary say that, as a matter of protection against malicious attack of the sort that they have suffered in the past, they look to Parliament to safeguard their ability to function independently in cases that are quite politicised.
The Solicitor General
I am listening with care to my hon. Friend. Will he accept from me that there is another danger, namely that by using too many prescriptive words in the Bill, we could fetter the discretion of the courts in a way that they would find equally unacceptable? There is a balance to be struck here.
Robert Neill
There is, and that is why it is all the more important—perhaps unusually so—for Government to talk quietly with the judiciary to find out what they are saying. They cannot compromise their independence, but those of us who are in touch with them want to make sure that the Government understand the root of their concerns. I am sure that there is a constructive way forward on that.
I know that the Solicitor General will be aware of the problem, because it was referred to in the Justice Committee’s report in the last Parliament. I also draw his attention to the concerns raised by Lord Thomas of Cwmgiedd, the recently retired Lord Chief Justice, in the evidence that he gave only a couple of days before he retired from that post. He gave a pretty clear steer on the sort of thing that could be helpful and posited various types of language. I hope that the Solicitor General accepts that we need to look further at the matter, and I hope that we can do that constructively as we take the Bill forward.
The Solicitor General
I am listening with great care to my right hon. Friend. Is not the simple answer that the Supreme Court will apply the rules of precedent in accordance with its practice direction of 50 years ago, which allows it to depart from previous case authority where it appears right to do so? Principles have been set out in domestic law by the Supreme Court and its predecessor, the judicial committee of the House of Lords.
Sir Oliver Letwin
With great respect to the Solicitor General, I draw him back to clause 6(3)(a), which directs the lower court in such a case to continue to apply the retained case law on the basis of ECJ jurisprudence, not Supreme Court jurisprudence. If that is not what the Government intend, they need to redraft clause 6(3)(a). They can have it one way or the other, but we cannot in this country have a legal system that tells our courts to do two different things. That is why the former judges are causing a harouche here. They are not being told what we, as a Parliament, are expecting of them.
The Solicitor General
What we are seeking to do is, in effect, settle the status of retained EU case law so that it is equivalent to that of Supreme Court authority. That is the explanation of the hierarchy that my right hon. Friend has, very fairly, outlined.
Sir Oliver Letwin
If the Solicitor General is trying to argue that he is aiming for equality between the jurisprudence of the European Court of Justice and the jurisprudence of the Supreme Court, that poses an insoluble problem for the lower court. One has to trump the other, but if the Bill is trying to make out that one trumps the other, it does not do it. It is really quite important for a human being who speaks English and reads the Bill to be able to see which trumps which.
Oral Answers to Questions
Robert Buckland Excerpts(9 years, 10 months ago)
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Mr Vara
First, I put on the record the hon. Gentleman’s deep interest in this issue; he secured an Adjournment debate about it earlier this year, to which I responded. As for the so-called secret deal with the insurance industry, may I just say that there was no secret deal?
Mr Robert Buckland (South Swindon) (Con)
One of the factors that drives up costs is the problem of discovering documents relating to medical and HMRC records. What discussions is my hon. Friend having with other Departments to make sure that we can speed up the process of disclosure?
Criminal Justice and Courts Bill
Robert Buckland Excerpts(9 years, 11 months ago)
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James Morris
I rise to support new clauses 6 and 7, tabled by my hon. Friend the Member for Enfield North (Nick de Bois). I would like to pay tribute to the great work that he, together with my hon. Friend the Member for Enfield, Southgate (Mr Burrowes), has done on this issue—one that is not entirely confined to London.
An incident took place in my constituency when Christina Edkins was killed on her way to school on the number 9 bus travelling from Birmingham to Halesowen. Her death was a devastating blow to the community in Halesowen. I had the privilege of meeting her parents and her uncle to console them and to try to understand the devastating consequences of this incident on their lives. That led me to ask the Prime Minister in Prime Minister’s Question Time whether the Government would consider mandatory sentences for knife possession. Having discussed these matters with my hon. Friend the Member for Enfield North and others, I am pleased that appropriate measures to introduce this mandatory sentence, which I think is absolutely necessary to tackle this issue, have been tabled for today’s debate. I owe it to the family and friends of Christina Edkins to support them.
I believe that the new clause also sends a signal that is important for deterrence. It is not a straightforward issue, but I think the community listens to the signals sent from this place. Shortly after this incident in my constituency, I took part in a knife crime debate in Birmingham. I was on a panel with the police and others concerned about the spread of knife crime in and around the Birmingham area. I spoke to various members of the West Midlands police and they were absolutely convinced of the need for a mandatory sentence. From their work with the community in trying to identify individuals and communities at risk from knives, they were clear about the need for legislation to send the very important signal that carrying a knife has consequences and that that those consequences mean that people should not be carrying knives. The police were very clear on that. It is very important to send a clear signal that we do not tolerate the spread of knives under any circumstances.
On the argument that someone carries a knife for self-protection, I would ask whether the same argument would apply to carrying a gun. The distinction between carrying a gun and the intention to use it does not stand up, and we should take the same attitude towards carrying knives. I agree that this is not the only way to continue the effort to clamp down on knife crime. There is a lot of work to do to educate young people that carrying weapons is simply not acceptable and will have consequences, and that there are other things to do with one’s life instead of ending up getting involved in street violence as if it is some kind of status symbol. I hope the House will vote for the mandatory sentence, but I do not think it is a panacea. I agree with my hon. Friend the Member for Enfield North that they are both sides of the same coin. We must tackle the issue on both levels.
Mr Robert Buckland (South Swindon) (Con)
I am listening with great interest to my hon. Friend’s correct analysis of the situation. Of the many young people I represented and dealt with in my time in the criminal courts as a barrister, I heard the same reason for carrying a knife over and over again: “It is for my own protection.” It is that sort of culture that we have to move away from if we are to deal with the scourge of knife crime that can affect children as young as 10—or even younger in some cases.
James Morris
My hon. Friend makes a powerful point with which I totally agree.
We have a responsibility in this place to support the amendment. It is the right approach. It sends a tough signal that we do not tolerate the possession of knives. There should not be a distinction between knives and guns. We need to address this scourge, so we can redouble our efforts to ensure we do not have the type of tragedies that occurred on the number 9 bus as it was coming from Birmingham towards my constituency. I support the amendment.
Criminal Justice and Courts Bill
Robert Buckland Excerpts(10 years ago)
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Julie Hilling
I absolutely agree with my hon. Friend. I remember the days of endorsements. We introduced the points system to give us more flexibility, but 12 points was regarded as the threshold for losing one’s licence. If more people are driving around with more than 12 points on their licence, it lessens the effect of the deterrent. It may lead people to think, “Perhaps I can get away with driving around with more than 12 points on my licence.” The whole threat of people losing their licence after 12 points, so therefore driving within the law, has been weakened.
Of course we need to tackle the sentencing of people convicted of causing death or serious injury by dangerous driving or driving while banned, but the whole issue of driving offences—and the way that cars can be used as weapons—needs to be addressed. We need drivers to realise, at every level of offence, that bad behaviour will be punished in order to make our roads safer. The Bolton News, my local daily paper, has been campaigning on this issue for some time. It ran a survey a while ago in which 83% of people agreed that 12 points should mean that drivers are banned. There is real support for that proposition.
We know that young people aged 15 to 24 are more likely to die in road accidents than as a result of any other single cause and, sadly, the number of deaths is increasing. Of course we need justice for those who have lost loved ones, but we also need deterrence. We have to take road safety and driver behaviour seriously, and do everything we can across the spectrum, from the point at which people start offending behaviour in a car to the final catastrophic effect of a terrible accident.
I have been trying to raise the issue of 12 points in various ways for several years, often with the support of Brake. Transport Ministers told me to speak to Justice Ministers, who told me to talk to the Sentencing Council, which told me to go back and speak to Transport Ministers. I am therefore relieved to have a place in which to raise this issue, although I accept—given what the Minister said—that the issue will not be solved in its entirety. I have spoken to magistrates and the Institute of Advanced Motorists about this very issue, and they are very concerned about it. The magistrates raised the issue of the difficulty of getting accurate information from the DVLA about the number of points that a driver has. Secondly, magistrates are concerned that there is no record of the pleas used. Although a driver cannot officially use the same plea of exceptional hardship, the magistrates have no way of knowing whether it has been used before. Thirdly, the magistrates worry about a lack of consistency. Different magistrates accept different pleas of exceptional hardship, so some drivers are allowed to keep their licence in some courts whereas others in other courts are not.
Mr Robert Buckland (South Swindon) (Con)
I am listening with great interest to the hon. Lady’s excellent speech, and I am very sympathetic to the important points that she makes. One other area she might want to consider is whether the police national computer, which records the previous convictions of everybody in England and Wales, should be enhanced so that exceptional circumstance pleas could be set out briefly in a document which would then be put before any court considering a fresh application.
Julie Hilling
The hon. Gentleman raises an interesting and important point. However we capture such information, it needs to be made available to magistrates, and that is an excellent suggestion.
I accept that the amendments would not solve all of the problems that I want to address of people driving with more than 12 points on their licences, of consistency of sentencing and of magistrates having the correct information. If the Minister will specifically commit to looking at the issue of 12 points and sentencing, I will not press my amendment to a vote.
Mr Buckland
I rise to speak to amendment 19, which is tabled in my name, relating to the issue of accountability for special educational needs in the proposed secure colleges. The amendment would make the principal of the college responsible, first for reviewing the SEN provision available in the college; secondly for identifying whether the work force are appropriately skilled to support young people with SEN; thirdly for working with that young person’s home local authority when they might benefit from a new education, health and care assessment, which was established by the welcome Children and Families Act 2014; and finally for undertaking those duties with advice from the secure college’s special educational needs co-ordinator.
It is worth reminding the House once again why special educational needs in secure colleges is such a fundamental issue. Research suggests that 60% of children in custody have communication difficulties; a quarter of children in the youth justice system have a learning disability; three quarters have serious difficulties with literacy; and 17% of young offenders have a statement of SEN, compared with 3% of the general population. Those difficulties are often not identified until the young person enters custody. Ensuring that a young person’s SEN needs are recognised and supported is essential to the success of the Government’s stated aim in introducing secure colleges: to put education at the heart of youth custody. I fully support that aim.
We had a short debate on these issues in Committee, and I listened carefully to the Minister’s response to the concerns raised about SEN provision. He said that he would expect potential education providers to demonstrate that they could provide the necessary support for detained young people with SEN, and I am sure that he would agree that training for staff in that discipline is crucial. However, I understand that the Government do not want to constrain innovation by putting into statute too many specifications on what providers must deliver and that the more detailed requirements on provision will be included in the contract.
That is why my amendment does not specify the detailed SEN provision or training that must be provided; rather, it seeks to place duties on the principal to keep that provision and training under review. That has several advantages. It is a means of ensuring that contractual commitments relating to SEN are delivered on the ground. It creates a strong statutory framework around which the provision of SEN support and training can be provided, but it does so without being restrictive or prescriptive in the way the Minister was concerned about.
One of the major challenges we face is linking up provision in custody and provision in the community. We do not want to see progress made by a young person while in a secure college to be lost after he or she is released, because for many detained young people—this is a sad reality, but it is true—custody might be the first time in many years that they have engaged in education. For far too many it is the first time their special educational needs are identified. It is therefore crucial that any information identified in a secure college is passed on to the home local authority so that there is continuity in ensuring that their needs are met. Upon release, those young people might be eligible for an education, health and care assessment from their home local authorities. That might need to begin before they are released so that a proper package can be put in place to prepare the ground for that transition. That is why my amendment would require the principal of a secure college to pass any information on a child’s special educational needs to their home local authority, building on the great strides that have been made in the 2014 Act.
Guy Opperman (Hexham) (Con)
I congratulate my hon. Friend on his eminently good speech, which, as always, draws upon his expert knowledge of SEN. Is he not describing an integrated form of education whereby what takes place inside one particular institution is transferred seamlessly to other institutions involved? Is that not what we should be aiming for in all education across the prison system?
Mr Buckland
I am grateful to my hon. Friend for that intervention. Already in the debate we have heard, in speeches and interventions, about the relatively short period of time that young people spend in custody. That continuity is absolutely essential if we are to take meaningful strides not only in dealing with rehabilitation, but in reducing reoffending rates, which concern all of us and are a priority for the Government.
My amendment is a probing amendment, but I am keen for my hon. Friend the Minister to consider further these proposals in relation to SEN provision in secure colleges: that education providers in those colleges be required by contract to put SEN at the heart of their education provision; that those providers also be required by contract to ensure adequate and proper training for staff so that they can properly identify special education needs and meet that need when it is identified; and finally, that we give further thought to exactly who in a secure college should be responsible for working with home local education authorities when young people either have education, health and care plans, or might be eligible for them. I commend those points to the House.
John McDonnell (Hayes and Harlington) (Lab)
I will be very brief, because other Members wish to speak. I find this whole secure college proposal abhorrent. It flies in the face of all the evidence that has been put before the Justice Committee and debated in the wider media. What do we know about trying to address the issues that confront young people once they get involved in this system? We know that the most successful units are the smaller ones. So what is the response? It is to create a mass-scale prison.
The other thing that we know works—this is absolutely critical—is for young people to be located close to their homes so that they can maintain family and community contact. The scale of this proposal in catering for about 25% of young people in the prison system means that these colleges will be located in the centre of the country, nowhere near the vast proportion of homes where these young people live, so we will be breaking down family connections. We have warnings before us, right across the piece, that in a mixed-gender establishment those most at risk will be young women. Some of the statements and evidence provided about those risks were frightening.
All the evidence tells us that a system such as that proposed will not work, and I think the Government know that. This is Oakwood for children, and we know what happened in that privatised prison—riots, assaults, and a lack of control. I think the Government know that there is a danger that that will be replicated in this large institution. That is why the Bill is allowing for the use of physical force against young people, contrary to everything the courts have told us.
Oral Answers to Questions
Robert Buckland Excerpts(10 years ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mr Robert Buckland (South Swindon) (Con)
16. What plans he has to reform the criminal law in relation to child neglect.
The Minister for Policing, Criminal Justice and Victims (Damian Green)
Child cruelty is an abhorrent crime which should be punished severely. Every child should be able to grow up in a safe environment. We are considering ways in which the criminal law can most effectively support that, and we will set out our conclusions and next steps in due course.
Mr Buckland
I thank my right hon. Friend for that answer. May I urge him to introduce proposals in the next Session of Parliament that will bring the criminal law of England and Wales into line with the family law of England and Wales and recognise all types of significant abuse, including emotional abuse, which is, I am afraid, all too prevalent in the lives of many of our young children?
Chris Grayling
The reason that the hon. Gentleman’s question was transferred to the Home Office is that the Modern Slavery Bill is a Home Office responsibility. But I would say to him that, in terms of the support that we provide through victims’ finances, we are spending more on support for victims of modern slavery than this country has ever done before.
Mr Robert Buckland (South Swindon) (Con)
T4. I refer the House to my declaration in the Register of Members’ Financial Interests. I welcome the decision of my right hon. Friend the Lord Chancellor, in agreement with the Criminal Bar Association, to postpone the latest round of cuts to criminal legal aid fees. I urge him to use the opportunity granted for a thoroughgoing review of the system of graduated fees and very high-cost cases, to eliminate bureaucracy and restore greater fairness to the system.
Chris Grayling
I expressed a willingness to work with the criminal Bar to try to create a more streamlined, more efficient, less expensive system. It is a matter of regret to me that the criminal Bar continues to decline to take important cases, and that is a matter that we are addressing hard at the moment.