International Court of Justice

Debate between Robert Neill and Ian Murray

Thursday 1st March 2018 Commons Chamber

[Ian Murray (Edinburgh South) (Lab)]

It is a great pleasure to make this statement, on behalf of the Foreign Affairs Committee, on our fourth report, which is on the International Court of Justice. Our Chair, the hon. Member for Tonbridge and Malling (Tom Tugendhat), and other members of the Committee are in Birmingham today and send their apologies for not being present—given that the Committee travels to some of the most challenging places in the world, little did they think that Birmingham would be the most challenging yet, considering the difficulties in getting there and back today.

In November last year the UK Government were unable to secure the re-election of the UK judge, Sir Christopher Greenwood, to the UN International Court of Justice. As a result, the UK is not represented on the ICJ for the first time since the Court’s creation in 1946. Sir Christopher was first elected to the ICJ in 2009 but, despite his impeccable record and what the Foreign and Commonwealth Office told us was a long and extensive lobbying campaign, he lost to candidates from France, Somalia, India, Brazil and Lebanon. On 6 February the Lebanese candidate was sworn in, signalling an end to Sir Christopher’s nine-year term of office.

This is a bitterly disappointing diplomatic failure and can only be a step in the wrong direction for what the FCO describes as “global Britain.” This follows recent setbacks and vote losses at the UN, such as on the Chagos islands. During voting rounds, the UK candidate’s support in the UN General Assembly fell away sharply, leading to a run-off with the Indian candidate, which ended in deadlock. Further rounds of voting led to no improvement in the UK’s position, despite consistent support in the UN Security Council, and on 21 November the Government conceded the contest to the Indian candidate.

This loss is of deep concern. One of the key strengths of the UK is our commitment to multilateral governance and the application of the international rule of law. These commitments will need to play a key part in the UK’s future foreign policy strategy and in any global Britain agenda. We conclude that the lack of a UK judge on the ICJ will harm the UK’s influence on the global stage and the UK’s future foreign policy strategy.

We heard a number of possible reasons for the UK’s failure from Ministers and former UK diplomats to the UN. These ranged from the popularity of other candidates to regional allegiances and a wider shift in power away from the permanent five of the Security Council, despite the French candidate being re-elected. Perhaps the most concerning reason, however, was offered by Lord Hannay, a former UK permanent representative to the UN. He suggested that it might be an indication that the UK’s international standing had diminished, and that there might have been a fall in what he dubbed the UK’s “trepidation index”—how far other countries worry about treading on our toes.

What are the next steps? The FCO used tactics that had worked in the past and was surprised when they did not work this time around, because they expected Sir Christopher to win. The UK mission in New York lobbied extensively, as did the FCO’s network in London and overseas, and as did Government Ministers during bilateral discussions. But this did not work.

We are also concerned that the FCO does not appear to be particularly curious about why the support of other countries in the General Assembly fell away, and nor do Ministers seem too interested in finding out the reasons why the support for the UK diminished against what had been promised to them previously by other nations. When we asked the Minister what reasons he had been given by other countries, he was unable to give any definitive answer. Lord Ahmad, the Minister of State for the Commonwealth and the United Nations, did place some emphasis on building a “Commonwealth caucus” but was unable to tell us how many Commonwealth countries—not including India, of course, whose candidate defeated the UK’s—voted for the UK’s candidate.

The FCO has rightly launched an extensive internal exercise to identify the reasons for the failure and to learn lessons for future contests. It intends to keep the findings of that exercise private but, for the sake of accountability to Parliament and the public, we recommend that it should share its findings with the Committee, so that we can assure ourselves that it is taking the required action. The FCO should also inform the Committee each time it intends to campaign for a UN position, so that we can help. However, without the benefit of incumbency, the next opportunity to elect a judge of the ICJ will be much more difficult and the FCO needs to prove that it can adapt its approach.

One resource that the FCO does not make full use of is Parliament. Members across this Chamber and in the other place have international experience and networks that can be mobilised, and we have all been part of election campaigns. We recommend that the Government should brief the Committee and other relevant parliamentary groups on future elections to make best use of this resource.

We have to ensure that the UK’s influence and guidance on international organisations such as the UN is not diminished or diminishing, which is why the FCO’s lessons report is critical to determine the causes behind this embarrassing defeat. I commend this statement to the House.

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

I am grateful to the hon. Gentleman for his statement, and to the Select Committee for its work. Does he agree that this is particularly disappointing because the United Kingdom has historically had an immensely high reputation in international law and international tribunals, and has some of the most experienced and highly regarded international lawyers, of whom Sir Christopher Greenwood is one? Does he consider that one of the lessons to be learned, in contrast to what happened in France, is that the Government must be particularly careful, as we leave the European Union, not to give any signal that we place any less value on international rules-based legal systems and international tribunals, which should remain central to the attention of Her Majesty’s Foreign Office?

[Ian Murray]

I agree with the hon. Gentleman. The former UK ambassador to the UN made exactly that point in evidence to the Committee. The UK was very much at the forefront in developing the international rules-based system, and we must be very careful that France does not become the voice of Europe in the UN Security Council, and therefore the voice of the UN when it comes to the place that the UK should be taking. There are, by convention—but by convention only—two places on the ICJ for European or western powers, and the fact that the UK is not there might show us that in some way the UK’s power and influence are much diminished.

Courts and Tribunals Fees

Debate between Robert Neill and Ian Murray

Monday 4th July 2016 Commons Chamber

[Robert Neill]

We do not go so far as to say that it follows that there should never be fees in any particular class of case—that includes employment tribunal fees—but we do say that a balance has to be borne in mind. I suppose that one could conceive of an argument—we did not rehearse it in detail in our report—whereby an enhanced fee might be recycled within the system. If, for example, some of the fees were being used to cross-subsidise, as it were, other elements of the family jurisdiction, then there might be something in that, but we do not have any evidence that that is the case. The hon. Lady makes a fair point, which is consistent with our report, about the undesirability of going down that route.

The situation provides a contrast with the speed with which the Government acted over both the criminal courts charge, quite rightly, and the new proposals for higher fees ever since the employment tribunal fees were introduced, with some controversy. The Department made those proposals with great speed, but it has been remarkably tardy in producing its review of the impact of those employment tribunal fees. That is why we conclude that, although a legitimate balance has to be found in the interests of society, where the objective of achieving cost recovery and the principle of preserving access to justice are in conflict, it is the latter—access to justice—that has to prevail. In a sense, that is a restatement of the point made by the late Lord Bingham of Cornhill, and I would have thought that most Members saw the logic of that.

Other members of the Select Committee will wish to make particular points, so I will touch on a few of the major matters. I have already referred to the quality of the evidence from the Ministry of Justice, particularly that in relation to employment tribunal fees. Ultimately, the Department may not have the evidence; if that is the case, it should say so, rather than pretend otherwise.

It is worth giving a flavour of some of the comments we received about the evidence base. The Master of the Rolls, Lord Dyson, described the Department’s research as “lamentable”. It is pretty serious when the head of civil justice in this country talks in those terms. The chairman of the Bar Council described the research undertaken in relation to the domestic effects of fees as “insignificant”, and the president of the Law Society said it was “poor”.

I appreciate that the Under-Secretary of State for Justice, my hon. Friend the Member for Esher and Walton has only just started the job—I do not blame him or any of his colleagues personally—but the truth is that the Government did not produce adequate evidence. On the face of it, it seems to have been a “wet your finger and hold it up in the wind” job, rather than being based on significant research. We do not think that that is satisfactory.

Perhaps things would have been different if the Government had brought forward their review. We might have been less critical if we had seen the evidence that they have collated but not yet made available. As it was, we had to base our conclusions on the evidence that we had, which I am afraid went significantly in another direction. It is ironic that, by not providing that material, the Government have not been the best of advocates of their own cause.

I am not going to say that everybody had difficulties with employment fees. In their evidence to us, the Federation of Small Businesses and Peninsula Business Services said that it was reasonable to have the objective of discouraging weak and vexatious claims. That was certainly the Government’s assertion when they introduced the fees, but hard material to support that view has not yet been forthcoming. We must bear in mind the comments of the senior president of tribunals, Sir Ernest Ryder, who said that it was simply too soon to say whether that has happened. If that is the case, and if the valuation is not yet available, now is not the time to be rushing similar increases in other parts of the civil and family and immigration jurisdictions, which I will turn to later. I will leave it to others to go into more detail about employment fees, as I know they will.

[Ian Murray (Edinburgh South) (Lab)]

I am grateful to the distinguished Chair of the Justice Committee for allowing me to intervene on him. If there is very little evidence to suggest that there were vexatious claims in the employment tribunal system and if the number of claims in some regions has dropped by a quantum of about 80%, is it not possible to make the opposite argument that fees are a block to justice and that, to get access to justice, they will have to be lowered? If this is about cost recovery, the number of employment tribunal cases is now so low that no costs are being recovered at all.

[Robert Neill]

That is why we made the point that we need to have a much better evidence base before we go forward with like increases in other areas. We did not rule out the fact that a fee may be appropriate in some cases, but we need better evidence to know the proper level to pitch it at and whether there are any unintended consequences—whether it will deter not just unworthy claims, but, as we fear, meritorious claims as well. A particular concern raised was that the employer and the employee claimant would get into a war of attrition, depending on who has the deepest pockets. That is not really consistent with the “equality of arms” argument that we have always regarded as being central to our justice system. Funnily enough, it may tend to make cases more protracted than they need to be, when the swiftest and earliest possible settlement would, as a general rule, be in everybody’s interests. I am grateful to the hon. Gentleman for his point. We were much assisted in our inquiry by evidence on the matter from the Law Society of Scotland, and we are grateful for its assistance.

Against that background, we made all due allowance for the fact that there has been some change in the substantive law, for the improving economic situation, for the previous downward trend in tribunal cases and for the ACAS conciliation schemes. Those things could account for some of the drop, but we were looking at a drop of about 70%, and we found no evidence to suggest that it was accounted for entirely or substantially by those matters, so we were led to the conclusion that the clear majority of the decline was attributable to the level of fee. That is why the matter needs to be looked at seriously and we need the factual information immediately.

We set out certain indicative thoughts about the sorts of changes that might be made; they are indicative because we do not have the evidence to go further than that. We think that this is an important issue, which really cannot be kept back for much longer.