Retained EU Law (Revocation and Reform) Bill

Robert Neill Excerpts

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[The Solicitor General]

I think I am grateful to the hon. Lady. I will come back to this point in due course, but she will have seen that there is an explainer for each and every one of the 587 regulations in the revocation schedule, and it is clear that in the vast majority of cases they are simply redundant and not needed. It seems that she has already had a complete answer to her point from the Government. I will come back in due course to our Environment Act 2021 and develop further the point that I am making.

Turning back to Lords amendment 1, nothing on our domestic statute book will be considered retained EU law and have the special status of retained EU law; that will come to an end by the end of the year. In my respectful submission, the further amendment to Lords amendment 1 passed in the other place is unprecedented, unnecessary and unacceptable. We must be able to use this primary legislation to revoke unneeded and unwanted legislation; it is not necessary to invent a new procedure simply to review a revocation schedule.

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

I welcome my hon. and learned Friend’s tone and approach, as I welcome the Government’s getting rid of the sunset clause and putting in place the revocation schedule, which is so obviously the right thing to do.

My hon. and learned Friend says that the further amendment contained in Lords amendment 1 is unprecedented, unnecessary and undesirable, but was not the objective of that further amendment, which was tabled by Lord Hope, who is a very distinguished lawyer, along with Lords Hamilton of Epsom and Hodgson of Astley Abbotts, both of whom are friends who I know to have been lifelong Brexiteers, to ensure that the measure was not used to make substantial change to our law, rather than to get rid of redundant legislation or make technical changes, which we all agree should not go to a Delegated Legislation Committee? What will be the Government’s alternative mechanism to ensure that we do not get substantial change to the law without proper debate and scrutiny?

[The Solicitor General]

My hon. Friend the Chair of the Justice Committee makes important points, and I hope that I can reassure him on some of them in my next two paragraphs. To answer his very last point, Members’ presence here in the Chamber right now, raising the sorts of points that he has raised, is part of the scrutiny process. In my respectful submission, the further amendment to Lords amendment 1 made in the other place actually undermines legal certainty. I draw his attention to the fact that there is already a proportionate safeguard—namely, a limited preservation power—in the preferred clause.

My hon. Friend mentioned the noble Lord Hope. I agreed with at least this part of Lord Hope’s speech:

“A quick reading of the schedule suggests that many of the items listed in it are things we can well do without.”—[Official Report, House of Lords, 15 May 2023; Vol. 830, c. 19.]

In fact, a longer look confirms the position. I must therefore ask the House to return Lords amendment 1 to the other place, as amended by Government amendment (a).

I turn to Lords amendment 16 on the reporting duty, which was tabled by my noble Friend Baroness Noakes, supported by my noble Friends Lord Jackson of Peterborough, Lord Frost and Baroness Lawlor. We have of course listened to the concerns raised, and I assure the House that the Government have not moved one inch from their bold ambitions. We remain committed to securing swift and significant reform that brings tangible benefits to the UK economy.

That is why I ask the House not only to agree with the reporting amendment sent to us by the other place, but to improve it. Our amendment (b) would increase the frequency of reporting to every six months. We know that accountability to this House and the other place is the best way of ensuring that the Government keep progressing their priorities and that my right hon. Friend the Member for Wokingham (John Redwood) and others are reassured.

I am delighted to support the amendment of my hon. Friend the Member for Stone, amendment (a) to Lords amendment 16, which will ensure that the Government report to both Houses not just on reform progress, but on what retained EU law will be reformed and what will be revoked. In the spirit of the amendment, I am pleased to say that the Government have already reformed and revoked more than 1,000 pieces of retained EU law—this comes back to the point that my hon. Friend the Member for Basildon and Billericay (Mr Baron) made at the outset—including more than 450 pieces that we have repealed, replaced or let expire, and 650 more that we have amended. Again, we can follow all this thanks to my right hon. Friend the Member for North East Somerset and his dashboard.

Upon our exit from the EU, a number of Departments proactively revoked or amended regulations that contained deficiencies as a result of the UK’s exit from the EU. DEFRA has already reformed key areas of retained EU law through flagship legislation such as the Environment Act, the Agriculture Act 2020 and the Fisheries Act 2020.

--- Later in debate ---

[Sir Robert Neill]

May I press the Solicitor General to give way on that point?

[The Solicitor General]

Of course I will give way to my hon. Friend.

[Sir Robert Neill]

The Solicitor General says it is unacceptable to the Government, and I understand the points he makes, but can he help on one point that was raised in the upper House? Contrary to the Government’s belief, there is a risk of legal uncertainty because, while the Government rightly have a revocation list of legislation, there is not a revocation list of rights that may be in another form. Therefore, the concern was raised about the risk of deleting almost unidentified law unintentionally. I am sure the Solicitor General has an answer to that and I would like to hear it, but at the moment I do not see why the Government are so exercised about this new clause—again, proposed by people who are both distinguished in the law and firm Brexiters.

[The Solicitor General]

As my hon. Friend knows, I pay enormous deference to those experienced in the law—not least to him, as long-standing Chairman of the Justice Committee—but he heard my response: the Government’s concern is that Lords amendment 6 would replace clause 3 with unclear parliamentary procedures and, in my submission, create the very legal uncertainties that have been previously criticised. That is why I suggest that it is should be unacceptable not just to the Government, but to the House as well, and that the amendment proposed would actually muddy the waters.

--- Later in debate ---

[Sir Jeremy Wright]

I understand the points the hon. Lady is making, and I will take them in reverse order. On the point I made about the difference in the scrutiny that these laws may have on the way out, as it were, compared with the scrutiny they would have on the way in, I accept that two wrongs do not make a right. However, it would be odd, if nothing else, to take the view that we should give the vast bulk of laws—some of which, as I think we have agreed across this Chamber, do not require a huge amount of scrutiny, because they are technical and somewhat inevitable changes as a result of leaving the European Union—a process involving greater scrutiny and greater friction, as I would choose to describe it, than the process that was used to bring them in in the first place.

On the hon. Lady’s point about a Joint Committee, I accept that there are Joint Committees, but the role of the Joint Committee on Human Rights, for example, is very different from the role that Lords amendment 1 sets out for a Joint Committee in this context. If we set up Joint Committees as scrutiny bodies, that is one thing, but if we are devolving authority to a Joint Committee to make judgments about what is and is not a substantial change to UK law, it seems to me that we ought at the very least to understand what substantial means in that context. Again, I am afraid that we can only decide on the basis of the wording we have in front of us, but the wording we have in front of us seems to me to require some greater clarification before anyone ought to support it.

[Sir Robert Neill]

My right hon. and learned Friend is making a characteristically powerful and persuasive case. Taking on board his point about the—to use my inelegant criminal lawyer’s phrase—rather clunky nature of the mechanism, or the friction that he rightly refers to, would he concede that something potentially needs to be done to fill the gap identified by the noble Lord Hope of Craighead in the other place, which is that simply setting out in the Bill a list of laws to be revoked does not of itself guarantee adequate scrutiny of those laws? Does he think there is some scope that the Government may wish to offer by way of assurance at some time as to the level of scrutiny that could be given, without resorting to the system currently set out in Lords amendment 1, which may cause that needless friction or, to use my term, be needlessly clunky, but may equally give this House a proper safeguard about its proper scrutiny role?

[Sir Jeremy Wright]

I am grateful to my hon. Friend, and for his reassurance, I do not think that either he or criminal lawyers are in any way inelegant. However, I think there is certainly something to be said for greater and better scrutiny, and we should always in this place be looking for ways to improve the scrutiny we offer. As he knows, my concern about Lords amendment 6 is that I do not think we yet have sufficient clarity about whether it achieves the objectives it sets out to achieve without also causing some fallout in other respects. I do not close my mind to the way in which it seeks to do its work, but I am concerned that we need extra clarity before we could conceivably support it.

I want to say something about the benefits as I see them of the Government’s new approach and why they will help with some of the legitimate concerns expressed in the debate. The benefit of the Government setting out, as they have in the schedule, the measures they propose will lapse at the end of the year unless further intervention is taken is that that allows all Members of the House to pay attention to that list and reach their own conclusions—early—about whether they think there is anything troubling in it, exactly as my hon. Friend the Member for Stone described that he and his colleagues have done. That is a better and more conducive way to good scrutiny than the one previously seen. It helps to offer the necessary reassurance that we will not simply stumble into a position where we lose from our statute book good and valuable things that happen to have their origins in the European Union. Parliament will not be caught by surprise by anything that the Government seek to do in that way.

It is important to remember that if the Government seek to make a change to our law, they will have to do so through the normal routines of passing legislation. True, that may be through secondary legislation, but that is still a way in which Parliament scrutinises legislation and has done so for a long time under Governments of multiple colours. There is nothing particularly radical in the Government proposing to take a measure through Delegated Legislation Committees that it seeks to use to make a change in the law.

I return to friction. It seems to me that the friction that is sought to be added to the processes we use is undesirable. That is partly because it is unnecessary—the reassurance that the Government can offer by the new course they seek to take is adequate—and partly because we must see this specific discussion in the context of the broader discussion that has happened about our membership of the European Union. In the interests of full disclosure, I should make it clear to the House that in the 2016 referendum I did not vote to leave the European Union, and I urged my constituents not to do so, either—in some cases, they paid little attention—but I accept, and have accepted consistently since, that the decision was none the less taken that we should leave the European Union, and certain things flow inexorably from that. It must be right that if we leave the European Union, we also leave European Union law behind us. That should not be in a rush or in a flurry of activity that might cause us to throw the baby out with the bathwater, but inevitably that is what should happen.

Oral Answers to Questions

Robert Neill Excerpts

Wednesday 1st February 2023 Commons Chamber

[Mr Speaker]

I call the Chair of the Justice Committee.

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

I think the Attorney General has just demonstrated that she and the Solicitor General are well up to the task of internal inquiries. In welcoming the report, will she recognise that, given the Attorney General’s important role of speaking truth to power—to Government—it is also important that the Law Officers should be consulted in a timely fashion, and appropriately and fully, on any controversial matters that may have a legal aspect, and that fellow Ministers should then listen and act accordingly, consistently?

[The Attorney General]

I thank my hon. Friend—he is a very learned Gentleman, on whose Committee I was extremely proud to sit for many years—for his question, which I think was more of a statement. It is important to note that the Government’s commitment to the rule of law is absolute, and I will do my very best to uphold that.

--- Later in debate ---

[The Prime Minister]

In fact, there is widespread recognition and support for the UK’s approach to transparency and tackling corruption. Indeed, the most recent report from the Financial Action Task Force commended the UK for the steps it had taken.

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

Q3. I refer to my entry in the Register of Members’ Financial Interests. Arts Council England was established to increase access to great art for the population. There is real concern and anger that its current funding decisions do the exact reverse of that, on the basis of inadequate evidence and a lack of transparency in the process. Will my right hon. Friend meet me and other concerned Members to discuss the situation whereby centres of national excellence, such as the English National Opera, are at risk of closure, and how we can reform the operation of the Arts Council, which many people feel is no longer fit for purpose?

[The Prime Minister]

I know my hon. Friend cares deeply about this issue. He will know that decisions made by the Arts Council are taken at arm’s length from Government. Department for Digital, Culture, Media and Sport Ministers have been assured that that process was robust, but I will ensure that he gets a meeting with the relevant Minister to discuss this important matter further.

Oral Answers to Questions

Robert Neill Excerpts

Wednesday 7th December 2022 Commons Chamber

[Mr Speaker]

I call the Chair of the Justice Committee.

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

May I, both personally and on behalf of the Committee, warmly welcome the Attorney General to her place? Everyone who saw her sworn in will know how positive the reaction of Bar and Bench was to the appointment of someone who takes her responsibilities so seriously, and we look forward to working with her.

When the Director of Public Prosecutions gave evidence to the Justice Committee last month, she stressed that the pressures on the CPS must be seen in the context of the justice system as a whole, and that the solution to those pressures required consistent support for the system, but in particular support for CPS staff—

[Mr Speaker]

Come on! Somebody answer the question!

Criminal Justice System: Families Bereaved by Public Disasters

Robert Neill Excerpts

Thursday 16th September 2021 Commons Chamber

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

It is a privilege and it is actually very humbling to speak in this debate. I wanted to do so both as Chair of the Justice Committee and out of respect for my fellow Committee member, the hon. Member for Garston and Halewood (Maria Eagle)—as well as the victims, of course, of this awful disaster and many others—because she has pursued this issue with great vigour as a constituency MP. She has also pursued it—I am grateful to her for doing so—through the Justice Committee and the report that we recently published on reform of the coronial system, so I particularly wanted to be here.

As you will know, Madam Deputy Speaker, I will start by asking the House’s indulgence of the fact that I may need to leave before the end of the debate, because there is a pressing family matter that I need to attend to and which the Front Benchers and the hon. Lady also know about. None the less, I thought it was important to be here.

I also welcome the Minister to his place. He will know from his service on the Justice Committee how seriously this matter has been taken and the energy with which the hon. Member for Garston and Halewood has pursued this case. She has done a service for the House, for her constituents and for the country more broadly, because this raises important issues of policy relating to how we deal with a particular tragic set of circumstances, where there are multiple deaths in consequence of a catastrophic failure through the regulation or other form of conduct by a public authority, in most cases, and sometimes by significant private corporations.

I was also particularly pleased to see my right hon. Friend the Member for Maidenhead (Mrs May) here, and I join the tributes to her for the courage and sheer decency that she showed throughout her pursuit of this issue both as Home Secretary and Prime Minister. The fact that she continues to pursue these issues having left office, says a great deal about her and the calibre of person she is. I agreed with everything that she said in her speech, and I hope that the Government will take it on board.

I cannot see for the life of me why we did not continue that commitment to a public advocate in the 2019 manifesto. As far as I am concerned, to paraphrase John Maynard Keynes, the facts have not changed, and I see no reason why we should change our opinion either. The overall cost of such a matter to the public purse is very small indeed in comparison with the importance in human terms of the issues that arise, and the public good that can arise. The purpose of inquests is not simply to determine the cause of death, but also—particularly through the powers of the coroner to write a statutory letter—to improve behaviour for the future, and to change practice. I think the importance of that is often underestimated.

I am grateful to my right hon. Friend for all those reasons. I also wish to join in the tributes that have been paid to my right hon. and learned Friend the Member for South Swindon (Robert Buckland), who showed such sensitivity towards this issue during his time as Lord Chancellor and Secretary of State for Justice. I have made no bones about what I feel about his departure from government. I simply say now that the Government are the poorer for his departure.

The specific issues that we are debating have been well rehearsed by the hon. Member for Garston and Halewood, and I do not seek to repeat what she has said, but I do point out that what she has said is reflected, in many respects, in a number of the recommendations of the Justice Committee’s report on reform of the coronial system, which was published earlier this year. I am grateful to other members of the Committee, past and present, for being here today.

The coronial system has many merits, but in these cases it does not work satisfactorily. There are other issues with it, some of which coincide with the issues that are highlighted here. Examples are the variation of practice between coronial areas and the lack of a strong system of central support—the appointment of a new Chief Coroner, together with the work of the first two Chief Coroners, has done a great deal to improve that, but there is still a lack of structure to underpin it—and the fact that the inquest rules and procedures do not give the coroner anything like the degree of case management control that, for instance, a High Court judge or a circuit judge would have in the same circumstances, in terms of dealing with interlocutory issues, admissibility of evidence, and the appropriateness of lines of cross-examination.

If we are to try to preserve the coronial system, which I think is a good one, we must ensure that it can be adapted to different types of case. That which relates to a tragic death, for example in unexplained circumstances, but where the medical issues are pretty simple and straightforward and there are no other significant extraneous issues of fact to consider—or even to a comparatively straightforward but sad personal injuries death—requires a procedure that is wholly different from, and much simpler than, that which occurs in multi-handed inquests in which significant state or private actors are engaged and in which the issue of legal resource will come into play.

We also need to think about the position of a purely inquisitorial system when there are third parties, the bereaved families, who have a direct means of engagement. Regrettably, the current system cannot always guarantee that they will have the level of input to the system that they should have, and that they will have, for example, sufficient access to evidence to make the case in a way that enables them to feel that all the relevant issues have been fully ventilated.

There are broader issues, too, that arise from Hillsborough, in relation to what I think we can now perceive to be deficiencies in the substantive law itself, in two areas. One, to which my right hon. Friend the Member for Maidenhead referred, is the whole question of the status of evidence given to a non-statutory inquest. I think most people were surprised that that exists. It was inevitable—the ruling of the judge, Mr Justice Davis, a very experienced trial judge, cannot be faulted in law—but that does say something about the position of the law.

Perhaps, as my right hon. Friend suggested, it would be a measure of over-engineering to require every such inquest to be conducted on a statutory basis, but that is the only safe means by which people could be held to account in these circumstances. Perhaps we could expand the definition in some way, let us say by analogy with the law of perjury or by adopting other definitions of misconduct in public office, because after all these people were acting in public office in this case when they made the demonstrably false statements. There ought, surely, to be a legislative device which could achieve that, and I am sure that it would have the support of the whole House. Maybe the Law Commission could be asked to look swiftly at these matters. It is able to respond in a timely way to specific technical issues of law when required.

There is also the issue of procedure. We need to strengthen the tools for coroners to get to the truth and ensure fairness for all the relevant parties and interests involved. We also have to ensure that, in cases involving bereaved families, the families are made much more central to the system. That is why we have recommended that there should be a charter for bereaved families appearing before the coronial system. There is already a guide to service for bereaved people, and that is fine as far as it goes, but it does not go far enough. We recommended going further and putting this on a much stronger and more formal basis. We also recommended strengthening the amount of specialist support services available.

I rather regret that the Government have not gone as far as I would wish in adopting all these recommendations. Again, the cost in the overall scheme of things is tiny. The Minister, when he was a very effective member of the Justice Committee, often made the case that, when we talked about spending on the courts system, we were talking about a fraction of a fraction, and I totally agreed with him. Well, spending on support services for bereaved families in coroners inquests and proceedings is a fraction of a fraction of a fraction, if I can put it that way, but the benefit in human and societal terms would be very great indeed. I hope that the Government will reflect that they can move further on their response to our recommendations.

In addition to arguing for a charter of rights, we argued that there should be a much more structured means of ensuring access to evidence. At the moment, this is far too dependent on the discretion of the individual coroner. There are not the same rules on the disclosure of evidence as would exist in a criminal trial on like facts in the Crown Court, and that is unsatisfactory. We also supported the recommendation for a duty of candour, and I suspect that Bishop James’s report will also go down that route. I know that the Government have said that this recommendation will be considered alongside their response to Bishop James’s report. The Select Committee reached this conclusion on very compelling evidence. The evidence that we heard throughout the inquiry pointed strongly in one direction on virtually all the points before us. I hope that, when the Bishop has produced his report, the Government will take the opportunity to act and bring in a duty of candour.

The other important issue that we want to look at is equality of arms. Where there has been a significant loss of life and where significant public interest issues arise in terms of the conduct of those responsible for the premises or the events that have given rise to the deaths, it cannot be right that one side can be represented by heavyweight legal teams, effectively at the taxpayer’s expense when these are public bodies, while the families have to rely on the very restrictive parameters of the exceptional funding scheme for legal aid. Again, we are not talking about a large number of cases. We are not talking about a general extension of legal aid to inquests, because that would change the inquisitorial nature of the system. That is not what we are arguing for, and that is not what the evidence has suggested. It said that, for a specific type of inquest involving specific tragic events, equality of arms and fairness would dictate that those families should have access to non-means-tested legal aid. That would be in the public interest, to ensure that all the issues were properly ventilated and that the coroner’s recommendations would fully deal with any issues relating to the prevention of future deaths.

I have perhaps trespassed for some time on the House’s time, but I think this issue warrants full and proper debate. It is a shame that we do not have more people here to discuss it, but I hope that we will have other opportunities to do so. If I am unable to be here when the Minister responds to the debate, I shall read his remarks with interest. I know that he will respond fully and conscientiously, for he is a considerable asset to the Government and I very much hope that he will continue to be so when the day is out. I am confident that he will, if there is any reward for ability and diligence in politics. I know that he is well seized of these issues, and if he cannot give us everything that we would like today, I urge him to ask the new Lord Chancellor—who I hope will continue to be his boss—to take these issues seriously and not to be afraid to revisit them, because there is profound evidence to support them. On that Keynesian basis, if the evidence and the facts are there, a shrewd person will act according to the evidence and facts and make these reforms, which would cost very little but would achieve a great deal.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Robert Neill Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

Ultimately, but not for the first time on issues relating to intelligence and investigatory powers, I believe the UK Government are failing to get the balance right between giving agencies the powers that we all recognise they need, and giving people the human rights, freedoms and protections that they deserve. The amendments would redress that balance a little, but nowhere near enough, and it will now be for the Scottish Government and Parliament to take forward legislation that gets that balance right.

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

I welcome the Bill and the approach that the Government have adopted. I thank the Solicitor General for his willingness to listen to arguments regarding the amendments, and I join others in paying tribute to my right hon Friend, and good personal friend, the Member for Old Bexley and Sidcup (James Brokenshire). I wish him well in his recovery.

The Bill is important because legal certainty in such sensitive and delicate matters is crucial for upholding the rule of law. That is why the Bill was necessary. There can be arguments about where the balance should be, but I believe a fair balance has now been struck, and it enhances the rule of law and accountability. I also pay tribute to those men and women who operate in extremely dangerous, sensitive and difficult circumstances, and who put their lives on the line for our safety. They deserve a proper legal framework to safeguard their activities. Equally, those who in certain rare circumstances might be the innocent victims of collateral damage caused by such activities ought to have proper redress and compensation. I therefore welcome the Government’s acceptance of the amendment that would make that explicit in the Bill. I understand the points that have been raised, but as the Solicitor General will know, criminal compensation law and procedure can seem quite arcane to the lay person, and it was a sensible and helpful move to put that measure in the Bill.

I also welcome the strengthening of provisions for protection for juveniles. For example, the use of appropriate adults more closely mirrors the protections that we recognise for juveniles elsewhere in elements of the justice system. That is a welcome improvement, and I am confident that the Investigatory Powers Commissioner and the judicial commissioners will give full and proper weight to those important safeguards.

I pay tribute to the work of the Investigatory Powers Commissioner and the judicial commissioners who work with him. Many of us know Sir Brian Leveson, the Investigatory Powers Commissioner, as a judge of the very highest integrity, and the same is true of some of those judicial commissioners who work with him and the staff who support that office. That system of checks and balances is critical to ensuring the rule of law, and it is important that such oversight exists.

On balance, the Bill has been improved by the amendments and by the co-operative approach adopted by right hon. and hon. Members on both sides of the House and in both Houses. I hope that we can leave those who operate on our behalf in this critical manner not only with a greater measure of legal certainty, but with a proper balance to ensure that both access to justice and the rule of law itself are properly preserved in a workable and modernised framework.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I agree with the hon. Member for Bromley and Chislehurst (Sir Robert Neill) when he said that this Bill has been improved by the work that has been done across the two Houses of Parliament and across the Benches. With that in mind, I will start by acknowledging the work that has been done on the issue around the use of children—the concept of juvenile CHIS. I acknowledge the work of Baroness Kidron, Lord Russell, Lord Young and Lord Kennedy who led the debates and discussions on these issues in the other place, and they have brought us to a much better place as a result. If we are honest, when this Bill first came to us, there was no discussion about children and what might happen if children were used as covert intelligence sources, so it is important that we recognise the work that they did to get us to this place, with the amendments before us.

I also put on record my thanks to the right hon. Member for Haltemprice and Howden (Mr Davis). I do not know whether that is helpful to him, but I know that he is speaking after me. Certainly, it might be of concern to our Whips that I agree with much of what he has said with regard to this Bill. We share the concern that it is important to have the right legislation in place for these issues, because we know that covert intelligence sources are already being used. In that sense, I also want to thank the Minister for Security for listening to our concerns and I wish him well in his recovery.

I also pay tribute to the work of Just for Kids Law and JUSTICE, which have been phenomenal champions of the young people we are talking about today. I also thank the Minister in the other place, Baroness Williams, for her work and the Solicitor General before us today, who has had to step into this debate. I hope that now that he has had time to look at this issue, he will reconsider what he said a couple of weeks ago when he suggested that some of our concerns and examples were not valid and could not have happened, not least because his colleague, Baroness Williams, has acknowledged that those very cases about vulnerable children aged 16 and 17 being exploited and then put at risk and used as covert intelligence sources were in fact real.

With that in mind, I agree very much with the shadow Minister that the Bill is much improved and that the Government have moved on this issue. We now have in the Bill the exceptional circumstances principle—that we should only ever ask children to put themselves in harm’s way and to commit criminal acts in very exceptional circumstances. Indeed, our argument that there should always be an appropriate adult as part of those conversations has certainly moved forward, as has our suggestion that IPCO should be overseeing this. Those are very welcome developments and it is important that we recognise that.

There is an understanding that we need to go further in recognising that appropriate adults are not always part of these conversations and the discrepancies that that creates. If a child is arrested for shoplifting at the age of 16 or 17, there will always be an appropriate adult involved in their conversations with the police, but if a child is asked at the age of 16 or 17 to spy on their parents or to commit a criminal act as part of an investigation there might not always be an appropriate adult. That reflects a bigger challenge that I hope the Minister will take up: that this legislation is obviously looking only at the use of criminal conduct authorisations, and yet what this debate has shown is that across the House and across the different sections of Parliament there is a concern about the use of children at all as covert intelligence sources. I make a plea to him today that the long-awaited code of practice be published—we were promised it during the passage of the Bill, but we have not yet seen it—and that we look at that much bigger concern about ensuring that there is always appropriate welfare and safeguarding protection for children of all ages, recognising that the United Nations and, indeed, this country have signed up to recognising children under the age of 18—so 16 and 17-year-olds—as children who require our protection. We need to extend the principles that we have put in this Bill regarding criminal activities to all their engagement.

I think that everyone recognises that our security services and the police do a phenomenal job and work in some very difficult circumstances. We also recognise our responsibility in this place to those young people that we ask, in these exceptional circumstances, to put themselves in the way of harm. The Bill certainly takes us much further towards having the protections in place that we would all wish, but we know that there is more work to do. I appeal to Ministers to continue to work with organisations such as Just for Kids Law, to listen to the concerns of not just the right hon. Member for Haltemprice and Howden but Members across the House about where we might cut across international standards and welfare protections, and to recognise that the best states are those that protect everyone, including those people that we put in harm’s way, whether they are in our secret services or they are young people.

Thank you very much, Madam Deputy Speaker, for allowing me to participate in this debate and support the hard work of our Members of Parliament on this issue.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Robert Neill Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

We will support the amendments, but we do not support the Bill. Very real concerns remain in Scotland, and indeed across the four nations, that this Bill could be used to suppress dissent. That is not part of Scotland’s enlightenment tradition, and we will not see it done in Scotland’s name. The Scottish Parliament has withheld its consent, and in so far as the current litigation requires changes to the law of Scotland, we will deal with that ourselves in our own Parliament.

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

This is a very important Bill, not least because it touches on that really difficult balance that we often have to struggle with—perhaps not to this degree very often, in a democracy—between keeping the nation and our fellow citizens safe and our commitment to the rule of law. There are rare occasions when those can rub up against each other, sometimes uneasily, but whenever possible, I think we would all agree, the rule of law ought to be as paramount as it can be, subject to that duty to protect our citizens and our national interests. So are there ways in which we can reconcile this?

Can I, too, refer to my good and personal friend and constituency next-door neighbour, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire), and wish him well? I think the consensual and constructive approach that he adopted has done a great deal to smooth the passage of this Bill through potentially difficult matters.

I welcome the approach that the Solicitor General adopted in his opening speech, but can I perhaps press him on one or two matters precisely from the rule of law point of view? I would not seek to trespass on some of the expertise of others in relation to operational matters of the security services. I do not think anyone would wish to make life harder for those brave men and women who put their lives at risk to protect ourselves, and sometimes have to authorise operations that otherwise we might find unpalatable. I recognise that, but there are still rule of law issues that I think need to be addressed and ventilated. They were in the upper place, and we need at least to pay attention to them here.

In relation to Lords amendment 1, I hear what the Solicitor General says, but I am struggling at the moment to see why it is convincing to say that it is not reasonable to have, as the shadow Minister said, a reasonableness test. One would have thought that it was logical, if we are to have a statutory scheme, that that scheme should set out what the test shall be. By and large, I would have thought that an objective test, of a high but well-established standard, would be sensible and potentially a safeguard for operatives should their use of the test subsequently be challenged.

I note and understand the Solicitor General’s point about the potential inconsistency with the terms of different parts of the Regulation of Investigatory Powers Act, but as Lord Anderson of Ipswich and Lord Thomas of Cwmgiedd pointed out in the other place—both highly experienced lawyers and people with experience in sensitive matters—there is potentially a greater inconsistency between the wording in the Bill, and therefore potentially the governing statute when it comes into law, and the code of practice. The code of practice, at paragraph 6.4, provides that

“it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate.”

As Lord Anderson pointed out, that of course is not law, but it is something that, should there be any challenge, would doubtless be taken into account. It seems undesirable that there should be a difference in wording between the code of practice and the statute that governs it.

Would the Solicitor General think again about what is so objectionable about the existence of a reasonableness test and how that would actually compromise the effective operation of operatives in the field? I do not see that. As Lord Thomas put it, at the end of the day

“it is very important to make sure that the language of the statute is clear. Nothing could be less desirable than the language of paragraph 6.4…using the words ‘it is expected’”.—[Official Report, House of Lords, 11 January 2021; Vol. 809, c. 553.]

Basically, if it is a statutory scheme, the statute ought to be clear. I would like to hear some further justification from the Solicitor General on that, because it seems to me that if we are creating one inconsistency, we are potentially creating another. I think the words of the former Lord Chief Justice deserve some consideration.

In relation to Lords amendment 2, what was said by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chair of the Intelligence and Security Committee, is right. Although the amendment is well intentioned, it seems to me that practical risks could arise. Those of us who have some experience of serious organised crime will know the lengths to which these gangs are prepared to go to prevent infiltration and the ruthlessness with which they operate. On balance, I think the Government’s case against that amendment is made out.

In relation to Lords amendment 3, I do not think anyone would wish to have a situation where villains—people who would do us great harm, either as terrorists or as serious organised criminals—might seek an opportunity to use the criminal injuries compensation scheme or some other scheme to make claims against the state for circumstances that, in effect, they brought upon themselves, such as injury which they brought upon themselves because of the activities in which they were engaged. I am sure we would all agree with that.

I hope the Solicitor General will address the issue raised by Lord Cormack and others in the debate in the other place: what about the innocent victim, the person who is collateral damage? Say that in pursuant to a properly granted authorisation, a CHIS carries out an activity that unintentionally—perhaps as a result of a car chase, which is the example that Lord Cormack gave—causes injury to a passer-by, a bystander or someone who happened to be in the wrong place at the wrong time. Surely the Government would accept that morally there can be no justification for that person not being properly compensated. What is the scheme, therefore, by which they are to be properly compensated? I would have thought there was a way forward for the Government to achieve compromise on this. The suggestion is that the Government say, “There are means of doing this”, and I hope the Solicitor General can spell that out.

The person ought at least to be able to go to the criminal injuries compensation scheme. I am told that in Australia and some other jurisdictions, there is a separate indemnity scheme. Either way, the innocent victim of work that is necessarily and properly undertaken to protect the broader interests of the state and its citizens should not go without the scope for recompense. I hope the Solicitor General will address that when he responds to the debate.

Lords amendment 4 raises very sensitive issues. We all accept that there have to be particular protections in law for children and vulnerable people, so I am very sympathetic to the spirit of the amendment, but I do listen to what the Solicitor General says, and I take on board in particular the view of the Investigatory Powers Commissioner as to what actually happens in practice. I hope that the Solicitor General will undertake that the Government will continue to keep a most careful watch on how young people and potentially vulnerable people are used on the very rare occasions when it might be thought necessary to authorise activity involving them.

That brings me to Lords amendment 5 and the amendment in lieu, where it is the second part that is the issue. It was generally accepted that although in an ideal world judicial pre-authorisation would be preferable from a legal point of view, there were arguments about operational difficulties that could arise. Could the Solicitor General do more to address the very important point that Lord Thomas of Cwmgiedd made in moving his amendment, which the Government seek to reverse by the amendment in lieu? We have set up a system with a judicial commissioner, who is to be notified, and who then has a duty to consider that notification and come to a view on it. If they are under a duty to do that, and their conclusion is that the authorisation should not have been granted, are we really to leave it hanging there and to leave it to a rather fudged system of, “Let’s have a word and see what can be done”? If a judicial commissioner—in effect a judge, as Lord Thomas pointed out—says that something was not lawful, because that would be the ground on which they would find that was to be the case, are we then to have a means where something that is unlawful is to carry on, but without more ado? That does not seem to be consistent with our commitment to the rule of law.

Legal Advice: Prorogation

Robert Neill Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I do not think that it was a constitutional coup. I know the right hon. Gentleman will know that I do not, and I do not believe that anybody does. These things can be said in the heat of rhetorical and poetical licence, but this was a judgment of the Supreme Court of a kind that was clear and definitive. It often happens that Governments lose cases. We did not agree with it, because of course we argued against it, but we accept the ruling of the Supreme Court, and we are proud that we have a country that is capable of giving independent judgments of this kind.

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

I welcome the Attorney General’s very clear statement of the importance that he and, I am sure, the whole Government attach to the impartiality and independence of the judiciary. Let me also say to him that many lawyers might well have given exactly the same advice as he did on the weight of precedent. Does he accept, however, that it is most important that the convention that the advice that the Attorney General gives to Government is not leaked and is not disclosed should not be lightly set aside? Would he also perhaps think it rather regrettable that such an important matter, which warrants very careful and calm and considered language and discussion, should be used for the purpose of rather unworthy ad hominem attacks and party political knockabout when so much is at stake?

[The Attorney General]

I am grateful for my hon. Friend’s question. I do of course agree with him that legal advice, and particularly the role of the Attorney General, is always difficult, because one polices and intersects a very difficult line between giving advice of an impartial, and politically impartial, character, and being a political Minister, but I hope that I have endeavoured to do that with all the conscience and candour at my disposal—and when I say to the House, as I do today, “I accept that we lost; we got it wrong on the judgment of the Supreme Court; but it was a respectable view on the law to take, and that view was taken by four of the seven judges who had opined up to the point of the Supreme Court.”

The Supreme Court has made new law. Let us be absolutely clear: from now on, the prerogative power of Her Majesty, advised by the Prime Minister, can be the subject—the justiciable subject—of the court’s control, and that was a judgment that the Supreme Court was perfectly entitled to make. What the implications are for the future of our constitutional arrangements will have to be reflected upon in the coming months and years, but it is never wise to reflect upon a court case and its implications in the immediate aftermath of that case. It will have to be done carefully and deliberately, and this House will have to decide, ultimately, whether these matters and these powers are for this House to regulate and control, or whether they are for the judiciary; but, at the moment, the Supreme Court has spoken, and that is the law.

Section 1 of the European Union (Withdrawal) Act 2019

Robert Neill Excerpts

Tuesday 9th April 2019 Commons Chamber

[The Solicitor General]

As the hon. Gentleman knows, negotiations will carry on in the Council tomorrow, and I think it would be idle speculation for me to try and anticipate what might be agreed. Some people take offence at the word nebulous; I do not. [Interruption.] I really do not. What I have tried to do, at all stages of this process, is to find a way forward and to seek a solution. It is in all our hands, and I say that in a spirit of friendship and co-operation to all hon. Members.

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

It seems to me that the Solicitor General is simply giving the House a reality check as to the position that we have been put into by Members who voted in various ways. But is not the situation in law that, although it might be necessary to participate in elections—which neither he nor I nor, I think, most of us want—as a matter of law, the outgoing European Parliament exists until the moment that the new Parliament is created, and therefore there are certain things that could take place, such as ratification of any agreement, until the point that the new Parliament meets; also, the argument that British presence might impugn the new Parliament would not exist if we have left by that time?

[The Solicitor General]

I am grateful to my hon. Friend. I think he is absolutely right about the way in which the European Parliament is constituted. It is due, I think, to rise on 18 April, but it does not cease to exist—it does not dissolve in the way that we do. That is important in terms of ratification, because section 13 of the withdrawal Act that we passed obviously includes that requirement as well.

Withdrawal Agreement: Legal Opinion

Robert Neill Excerpts

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

I am extremely grateful to the right hon. Gentleman for his question, which I will deal with point by point. First, my opinion has changed in connection to this country’s ability to prove bad faith if it occurred. There is now a new contextual framework for judging whether the other party is using best endeavours or good faith.

Time has been made of the essence in specific connection to negotiating alternative arrangements. A specific work track and a specific timetable are set out, and it would be unconscionable, as I say in my opinion—I forget the paragraph, but the right hon. Gentleman will have it—if having said to this country that it will set up a specific, discrete work track on alternative arrangements, which are defined in this new document as meaning facilitative techniques, technologies and customs procedures, and if having set up a timeline for negotiating those alternative arrangements by saying “12 months, or we must intensify our efforts,” it never agreed to use a single one, and if it refused every proposal reasonably adjusted to its core interests. That would be extraordinary.

I say in my written opinion, and I stand by it, that it would be a potential breach of best endeavours and good faith. Best endeavours are now defined in this joint instrument as requiring the EU to consider adverse interests and matters that are adverse to its interests. Even if these facilitative technological and customs measures were adverse to the EU’s interests, the duty still requires it to consider them. Therefore if there were a pattern of refusal, a systematic refusal, to consider these alternative arrangements, we would have a case before the arbitration panel, and it would be a potentially serious breach of good faith.

I say to the right hon. Gentleman with all candour that I believe that, and he knows I would not say it if I did not mean it. It is there in my written opinion, and I urge him to consider it.

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

Does my right hon. and learned Friend agree that although any practical lawyer will know that legal risks can seldom be totally eliminated from any agreement of any kind, what the parties must look at is the practical risk of something occurring? Does he not agree that what has been achieved markedly diminishes the practical risk, which is the key consideration we need to bear in mind when looking at the broader context of what is at stake here?

[The Attorney General]

I entirely agree with my hon. Friend; the legal ingredient in any political question must be subordinate, and particularly in connection with this political question. The fact is that there are always legal risks of various kinds. We walk among legal risks all the time—some of us more than others, perhaps—but we do not determine our behaviour by them. We take practical judgments every minute of the day, every day of the week about whether the legal risks we are engaged in are ones that are worth taking. I say to my hon. Friends, as I say to all hon. Members, that we must come to a decision on this question today. I urge the House to consider carefully this: there is no real legal basis to be seriously troubled that the European Union will never reach agreement with us. If it occurs through bad faith, we have further improvements in the deal now. But just because we cannot reach agreement, when the alternative arrangements are now cemented into this deal in a manner they have not been before? I think not, in all candour.

Points of Order

Robert Neill Excerpts

Monday 3rd December 2018 Commons Chamber

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

On a point of order, Mr Speaker. The letter that the hon. Member for Torfaen (Nick Thomas-Symonds) referred to touches upon a most grave matter in any view to all Members of the House. Is it either in order or courteous that the text of that letter should have been released to a journalist who has then put it up on Twitter? I know that that was because of the journalist, but was it in order for hon. Members or those acting on their behalf to release it before you were apparently aware of it or had had the chance to consider it and rule on it?

[Mr Speaker]

It is always best if letters sent to me are received and seen by me before they are seen by others, but I will address the substantive responsibility that is invested in me—that is frankly a different and on the whole rather more important matter, but I always treat the hon. Gentleman and all Members with courtesy. I note what he said and I issued my response in the first sentence of my reply to him.