Leaving the EU: Justice System

Robert Neill Excerpts

Thursday 29th March 2018 Westminster Hall

[Robert Neill (Bromley and Chislehurst) (Con)]

I beg to move,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, implications of Brexit for the justice system, HC 750, and the Government response, HC 651.

It is a pleasure, Ms Buck, to serve under your chairmanship.

I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.

We received the Government response to our report on 1 December last year. I am glad to see the Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), in her place today. She has joined the Department since that date, so if I press a little harder on some things than on others, I am sure she will understand that they are not meant in any personal spirit. I think she also understands, from her own experience at the Bar, why there is a great need for more precision and more detail about what is going to happen.

I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.

I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.

Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of the English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.

I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.

I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.

I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.

It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on 21 March, which is only about a week or so ago, to the Constitution Committee of the other place. In essence, the position is that at the moment, clause 6 gives what on the face of it would appear to be wide discretion in how the British courts will apply and have regard to European Community law once we have left. There is a perfectly understandable precedent, of course—it is perfectly well established that British courts will take into account relevant law from other jurisdictions when it is applicable to the facts and law of the case that they are considering.

However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it

“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”

The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.

[Robert Neill]

My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.

My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:

“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”

That is exactly the point that my hon. Friend made so powerfully.

I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.

The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:

“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]

That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.

The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.

There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.

There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.

I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.

--- Later in debate ---

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Ms Buck. I thank the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Robert Neill), and the other members of the Committee for their excellent report. I was a member of the Justice Committee from 2010 to 2015 and remember many such excellent reports.

The UK’s status as an international hub for legal and financial services and its attractiveness to businesses depend not only on access to the EU legal services market, but on its close and comprehensive cross-border and civil judicial co-operation. I will start by concentrating on three areas that most hon. Members have spoken about. First, in relation to civil justice, we are in a unique position where the judgments of our court are enforceable both in European Union member states and in many Commonwealth states. That is very important for the UK’s role as a hub for international litigation. Therefore, it is critical for British citizens, businesses and institutions that the Government maintain our position.

In civil and family law, European Union regulations provide certainty on what jurisdiction should hear disputes while allowing for the automatic recognition and enforcement of judgments throughout the EU. Does the Minister share our concern that cross-border divorce and child custody disputes could become much more difficult unless Britain can secure effective judicial co-operation arrangements with the European Union after Brexit?

Many hon. Members spoke about the criminal justice system. We must remember that crime, and especially more serious and organised crime, increasingly does not recognise national borders. Even the less serious crimes are increasingly likely to have a cross-border element. Foreign nationals who commit crime in the UK often flee abroad, and some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In the UK, there has been a massive increase in people trafficking offences. Police and the judicial authorities need to be able to co-operate internationally to combat crime and bring perpetrators to justice.

I hope the Minister agrees that co-operation through case-by-case contacts or even bilateral agreements is likely to be more cumbersome when we are out of the system, especially where several states are involved. Under our European Union framework, we have co-operated through mutual recognition of key elements of one another’s systems, with minimum standards applicable in all states for certain factors, together with mutual legal assistance measures that are understood and applied in all the member states.

As we withdraw from the European Union, can the Minister assure the House that her Government will secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European arrest warrant? Does the Minister agree with the assessment of the EU Home Affairs Sub-Committee, which states:

“Any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK”?

Given that it took Iceland and Norway 13 years to negotiate extradition agreements with the European Union, does the Minister believe that there will be a gap between the UK leaving the European arrest warrant and agreeing a replacement system?

What assessment has the Minister made of the impact on victims if there is no European arrest warrant agreement after the UK leaves the European Union? What are the Government’s proposals to deal with cross-border investigations into drug cartels, people trafficking networks and fraud? Will we be in a position to secure evidence from overseas using the mechanisms currently in use in the European Union? What mechanisms will be put in place so that we can rapidly access fingerprinting and other identification databases for overseas convictions, sentencing and other purposes, to which we currently have access? I am sure the Minister is aware of the growth in co-operation through Europol, Eurojust and the European Public Prosecutor, which has made it easier to deal with crime, especially when it crosses borders. What is the Government’s plan to replace those institutions or fill the gaps left by them?

The UK legal services market is worth £25.7 billion in total, employing 370,000 people and generating an estimated £3.3 billion of net export revenue in 2015. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the EU. Equally important is the fact that, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of barristers’ and solicitors’ work will no longer be possible if we leave the European economic area, unless current cross-border rights are preserved.

Does the Minister agree that, in formulating their negotiating strategy, the Government should have regard to the nature of the legal work that comes to the UK as a consequence of the UK legal profession’s expertise, not least in European Union law? What measures are the Government taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?

The European Union charter of fundamental rights sets out a range of civil, political and social rights enjoyed by European Union citizens. Why does this Government’s policy of incorporating EU law into UK law exclude the European Union charter of fundamental rights? Does the Minister agree that, in the light of everything said in the debate, there must be a continuing role for the European Court of Justice during this time?

Labour’s view is that, beyond a transitional phase, we would seek a shared court-like body to oversee disputes and enforce rights and protection. Obviously, the precise nature of this shared court is subject to negotiation. We are flexible about how that would be achieved. It is important that there is an independent court to oversee the close new agreement we reach with the EU. It is vital that that is done to ensure that individuals, institutions and countries can enforce and protect workplace rights, consumer rights, environmental rights and more.

[Robert Neill]

I have been listening with great care to the hon. Lady’s speech and I very much welcome the approach that she has adopted. She talks about a future court to enforce these matters, for which I have much sympathy, but does her party rule out participation in the EFTA court as being a potential solution to the problem she rightly highlights?

[Yasmin Qureshi]

I understand the hon. Gentleman’s question. Our position is that there should be a system. What that system entails and how it works is subject to negotiation, but we should have something that makes it easier to resolve issues.

In concluding, I want to summarise some of the things that hon. Members mentioned. My right hon. Friend the Member for Delyn (David Hanson) spoke about very important crime issues. My hon. Friend the Member for Enfield, Southgate (Bambos Charalambous) talked about the legal services sector and how we are ahead in it. My hon. Friend the Member for Stretford and Urmston (Kate Green) rightly spoke about the impact of our leaving the European Union on children and their rights. The hon. Member for Cheltenham (Alex Chalk) made the interesting point that crime, civil justice, children’s rights and legal services should not be bargaining chips, but should be placed on a separate track and taken out of the contentious political debate. That would be a helpful way forward. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) rightly raised the impact on Scotland.

Everyone is aware that numerous treaties will have to be made to cover each and every area of law we have talked about. We will need not one set of treaties but treaties with 27 or 28 countries, with some opting in and some opting out. It will be a lengthy and complex process. I reiterate the questions asked earlier. How far have the Ministry of Justice and the Government got with drafting the relevant legislation and treaties? Which have been written and which have not? How are they progressing? When will they come to Parliament for debate? When will we be able to feel that these things will happen? Real issues have been raised, and many Members feel that, when we leave, we may be without the systems we currently have that make the criminal and civil justice systems much easier to deal with.

[The Parliamentary Under-Secretary of State for Justice (Lucy Frazer)]

It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) on securing this debate—his second in two days—on a very important subject. I also thank him and his fellow Committee members, past and present, for their important report of March last year.

As a former barrister, I fully understand the importance of obtaining the right deal for the justice system as we leave the EU. My hon. Friend the Member for Cheltenham (Alex Chalk) made a powerful speech about the many reasons why our justice system is important, and I agree with him. The Government recognise the importance of the legal sector. I know that because the Prime Minister highlighted it earlier this month in her Mansion House speech. She not only referred specifically to the importance of civil judicial enforcement and the mutual recognition of qualifications, but identified a few areas where the UK and EU economies were linked, one of which was law.

Before I deal with the issues Members raised, let me show how the Government have listened to the important points made by the Justice Committee and others. In its report, the Committee stated that we need certainty during any implementation period and that we must recognise the importance of criminal justice, and of mutual recognition and enforcement. It also highlighted the role of legal services. All those points have been and continue to be listened to. On implementation, the Committee stated that it was concerned that we would move to an inferior type of arrangement for a transitional period, and that it wanted to remove the risk of uncertainty. I hope the Committee is pleased that, in the implementation period, we will ensure that we have the same common rules so that our laws remain in place. There will be no inferior relationship in that period.

The Committee stated that we should prioritise EU-UK co-operation on criminal justice and that that serious matter should be negotiated separately. My hon. Friend the Member for Bromley and Chislehurst rightly identified that the Prime Minister has recognised the importance of this area, as she did when she was Home Secretary. She said in her Munich speech that we are “unconditionally committed to maintaining” Europe’s security now and after our withdrawal from the EU because “our first duty” as a nation is “to protect our citizens”.

On commercial law, the Committee outlined that the Rome I and Rome II regulations on applicable law rules do not require reciprocity and could be incorporated into domestic law. That is precisely what the Government are doing under the repeal Bill. The Committee asked us to ensure that maintaining the UK as a first-class commercial law centre is a top priority. It asked us to protect choice of law, and mutual recognition and enforcement. It stated that we should replicate the recast Brussels regulation and remain a party to the Lugano convention and The Hague convention. The Committee knows those are our ambitions, which we highlighted in our future partnership paper, along with the close relationship we want. We very much hope that we will ensure mutual recognition and enforcement in our separation agreement for cases started before Brexit.

Members will have noted in the Prime Minister’s recent Mansion House speech her desire to reach agreement on civil judicial co-operation. She referenced Lugano, company law and intellectual property law, and stressed the need for legal certainty and coherence. We seek to continue our participation in The Hague convention and the Lugano convention.

[Robert Neill]

I welcome the Minister’s assurance that that is the Government’s intention. I think everyone regards that as essential. On the urgency of getting agreement and specificity, is she aware of the recent survey by the international law firm Simmons and Simmons of its clients in Germany, France, Italy, Spain and the Netherlands about the approach that will be taken to important English jurisdiction clauses in commercial contracts post Brexit? So much litigation takes place in the UK because contracts have clauses specifying English jurisdiction. Some 50% of those clients will move away from English law unless there is certainty soon. Good intentions are not enough. We need answers very soon.

[Lucy Frazer]

I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.

The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. The hon. Member for Enfield, Southgate (Bambos Charalambous) identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too. She said

“it would make sense to continue to recognise each other’s qualifications in the future.”

That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.

My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.

My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.

My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.

In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.

The right hon. Member for Delyn (David Hanson), the hon. Member for Bolton South East (Yasmin Qureshi) and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implementation period, and we have done that. We are now turning to the matters of the future partnership deal and security.

We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.

--- Later in debate ---

[Robert Neill]

I am grateful to all Members who participated in the debate. These are important issues, which I hope we have been able to raise and stress their urgency to Government. I am grateful to the Minister for her response, which was as comprehensive and elegantly put as ever. I appreciate that she is well seized of these issues. It is important that we continue to have such debates to keep them to the fore.

[Sir Graham Brady in the Chair]

I am sure we all want the Prime Minister to succeed in her objectives, and for my hon. and learned Friend the Minister and her colleagues to be able to assist the Prime Minister in achieving them. That will happen only if we continually make the case. As my hon. Friend the Member for Cheltenham (Alex Chalk) rightly said, it may sometimes be seen as a niche topic, but it is fundamental. Without legal certainty, no international commercial arrangements can work. Without legal certainty, no form of justice or security co-operation can ultimately be underpinned. It is not a peripheral matter, which is why a separate track has been suggested to give it the prominence it needs.

I appreciate the point made about the same-state transition secured by the Prime Minister. That period is important. I accept that that gives certainty, but it takes us only up to the end of 2020 and, to give just one example, large-scale commercial litigation often takes more than two years, as the Minister will well know. It is therefore not a long period in those terms. We must bear that in mind—that is why it is so urgent.

I am delighted to see you in the Chair for the end of the debate, Sir Graham. I am sorry that you missed the advocacy fest that went before. I am grateful to all Members for their participation and I am sure we will seek to return to this matter.

[Sir Graham Brady (in the Chair)]

I will look forward to reading the proceedings in Hansard.

Question put and agreed to.

Resolved,

That this House has considered the Ninth Report of the Justice Committee, Session 2016-17, Implications of Brexit for the justice system, HC 750, and the Government response, HC 651.