Procedure for Appointing Judges

Debate between Stuart C McDonald and Keith Vaz

Tuesday 8th October 2019 Westminster Hall

[Stuart C. McDonald]

I agree with the hon. Gentleman wholeheartedly. I will return to that point later. The exchanges that sparked those headlines came when the Attorney General was asked by one of his Back Benchers whether it was time for MPs to get involved in approving appointments at the Supreme Court level. The Attorney General responded:

“I do think that we are going to have to look again at our constitutional arrangements…there may very well need to be parliamentary scrutiny of judicial appointments in some manner.”—[Official Report, 25 September 2019; Vol. 664, c. 666.]

As I said, I think the subsequent headlines required considerable journalistic licence. It would be useful if the same headline writers would publish the subsequent remarks that the Attorney General made during Attorney General’s questions last week, when he said that

“certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements.”—[Official Report, 3 October 2019; Vol. 664, c. 1360.]

Similarly, I welcome the Lord Chancellor’s words this morning at Justice questions in defence of judicial independence and against any notion of political appointments.

With impeccable timing, as soon as I received notification that I had secured this debate, I received a written answer from the Minister—I welcome him to his place—confirming that there were no plans to change the judicial appointments processes. The answer continued:

“Our judges are selected following a rigorous, independent, merit based process which is key to maintaining the quality, integrity and independence of our world class judiciary.”

That answer echoed the point made by the hon. Member for Henley (John Howell).

In the light of all those assurances, I wondered whether it was worth proceeding with this debate, but I think it is. I am grateful to hon. Members for staying to take part. It is still relevant to proceed because, despite the words of the Minister, the Attorney General and the Lord Chancellor, one fairly significant member of the Government does not seem to be singing from quite the same hymn sheet—perhaps not for the first time. Between the Attorney General’s original comments and his clarification, when the Prime Minister was asked about the consequences of the Supreme Court judgment by The Sunday Telegraph, he said:

“It will take a while to be worked through. But I think, if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability.

The lessons of America are relevant.”

Whether the Prime Minister was thinking about putting the UK on the path to a US-style system, under which Supreme Court judges are overtly political appointees, as The Sunday Telegraph interpreted it, only he knows—I very much hope not.

The pot was stirred even more firmly by a former Conservative leader who told The Times at the end of last week that

“more and more people are beginning to ask, with some legitimacy, whether it might be time to hold hearings as they do in America to find out what their political views are and what we can expect. We need to know more about these people.”

I could not disagree more strongly with that statement. A better response to the Prime Minister’s comments came from a former Cabinet colleague of his in an article for The Sunday Times this weekend:

“If he means we should learn from the weaknesses of the US system, he is absolutely right. If he means we should copy that system, he is wrong. It involves far too much political interference in the appointment of judges and also too much judicial law-making.”

My ambition in this debate is, therefore, quite modest: to achieve as broad a consensus as possible, saying clearly and loudly that we believe in the rule of law, the separation of powers and the independence of the judiciary; that our appointments processes must always respect that; and, specifically, that we reject the politicisation of the judiciary, in particular through US-style appointments processes. The Prime Minister and some of the less sensible members of the Conservative party should stop stirring that pot.

I am not saying that the appointments processes in the UK are absolutely perfect, whether through the Judicial Appointments Commission of England and Wales, through its Northern Ireland equivalent, through the Judicial Appointments Board for Scotland or through the appointments commissions that are convened for the purposes of selecting Supreme Court justices. No system is perfect, and they have all been criticised. It is absolutely right that we should keep those systems under review and scrutinise them to ensure that they deliver the appointment of the best judges.

Other hon. Members may want to make suggestions about how we can improve each of those systems, including to better protect judicial independence or to improve the scrutiny and accountability of judges through ombudsman and complaints processes. I have no doubt that more can be done to improve diversity on the bench, for example.

[Keith Vaz (Leicester East) (Lab)]

I congratulate the hon. Gentleman on securing this important debate, and I join him in congratulating the hon. and learned Member for Edinburgh South West (Joanna Cherry) on the stunning cases that she brought over the past two weeks. Regarding diversity, the old system required the Lord Chancellor to make all the appointments of the judiciary on the advice of civil servants. Does the hon. Gentleman think that the new system, with the Judicial Appointments Commission, has gone far enough in reflecting the diversity of the community at large? Obviously, gender diversity has increased, because we have a woman President of the Supreme Court, but what about ethnic minority diversity?

[Stuart C. McDonald]

I do not have a ready answer to that. The numbers show that it may not have gone far enough. I agree that there is more to be done to ensure that we have a bench that reflects the society that it serves, but I am not sure what the means and mechanisms for that should be.

My key point is that we should never consider or undertake the politicisation of the appointments processes, because the arguments that have been put forward in support of political interference in the appointments process are flimsy and, I would say, misguided. There is an assertion that because judges have suddenly got involved in matters that are deemed to be political, their political judgment should be open to scrutiny by parliamentarians before they are allowed to sit, but to take that view is to misunderstand the role of judges completely. Although what they decide has important political consequences, the decisions they make are not political, but legal. Therefore, a candidate’s legal abilities alone need to be assessed and compared to those of their peers.

Backbench Business

Debate between Stuart C McDonald and Keith Vaz

Thursday 20th April 2017 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Mr Evans, and to follow the right hon. Member for Leicester East (Keith Vaz), who as ever speaks incredibly knowledgeably on such topics. I welcome the debate and thank the hon. Member for Monmouth (David T. C. Davies) for bringing it to the Chamber. The Scottish National party is fully behind the idea of a European arrest warrant and wants the UK to continue to participate in the scheme if that is at all possible. However, the hon. Gentleman has done us—all six of us—a favour by bringing the topic here for debate and highlighting important flaws in the scheme. I believe that there are key questions that the Government must address, about how they will seek to secure continuing participation in the EAW scheme or at least something similar.

The UK was of course hugely influential in shaping the EAW system. It has brought welcome benefits for law enforcement agencies and victims of crime. As the hon. Gentleman said, it does so by simplifying matters and speeding up the repatriation of suspects and criminals from other EU countries so that they can face justice. In the old days, when extradition proceeded under the 1957 European convention on extradition, it took an average of 18 months to extradite someone. Under the current system it takes 15 days in uncontested cases and 45 days if a case is contested. Today it takes three times as long to extradite from EU countries as from outside the EU. Some countries would previously have refused to extradite their nationals at all.

The hon. Gentleman is nevertheless right to remind us that, while the system often works perfectly well, it is not without flaws. There have been too many cases, some of which have been highlighted today, where the use of warrants has been frankly ridiculous. That stems from the fact that a proportionality test is not applied in some states as it is in others, such as the UK and Germany. That is behind quite a lot of the problems that the right hon. Member for Leicester East highlighted—I am talking about the imbalance between the number of requests that the UK makes and the number that it receives. The hon. Member for Monmouth highlighted differences in criminal procedures and standards across the EU. Those are also valid points.

From our point of view, the answer to the criticisms is to be part of the system but to seek reform, not to ditch it altogether and push for something else. We do not often say that any part of our criminal justice system is perfect, but of course we do not just rip it up and start again; we seek reform and improvement.

[Keith Vaz]

I am going to tease the hon. Gentleman a little. Let us say that Scotland became an independent country. Scotland would want to retain the European arrest warrant, because that is how it would be able to track criminals, but the Scottish Government and the Scottish people would want some kind of bar so that Scottish citizens would not automatically be transferred, especially if they wanted to appeal to the judicial system in Scotland. Does the hon. Gentleman agree that it is necessary to have some kind of bar before people are handed over?

[Stuart C. McDonald]

I thank the right hon. Gentleman for his intervention. Yes, in an independent Scotland, we would seek participation in the European arrest warrant system. As I have acknowledged, it is not perfect, and we would push for reform, but from within the system; I will come to the issue of a bar in a moment. I cannot see how we are any more likely to be able to overcome the problems by starting again and trying to negotiate either 27 bilateral agreements or a new agreement in the way that Norway and Iceland have done. The easiest way for us to keep the benefits and bring about improvement in the system is from within, by continuing our participation.

There is evidence that continuing to participate and to push for reform and take part in dialogue can realise some progress. For example, raising concerns with Poland has brought about some change, including the introduction there of an “interests of justice” test. Before, it was almost automatic that a European arrest warrant would be sought. There is awareness and, I think, acceptance in EU institutions that more must be done to ensure proportionate use of the warrant system, although debate continues about exactly what measures are needed to make that happen. Meanwhile, changes to the Extradition Act 2003 mean that courts in the UK can apply a proportionality test and refuse to execute a warrant if the test is not passed, although I acknowledge the criticisms about whether it is appropriately robust.

As regards ensuring standards of justice, it is absolutely fair to say that more must be done to ensure that people extradited to certain EU states are treated fairly and that there are proper standards in relation to pre-trial conditions and detention. Again, however, change is possible. We have heard already that the 2003 Act does now set down a human rights bar, although I accept that there is also a debate about whether that test is robust enough.

Again, there is awareness at European level that there have to be improvements. For example, in February 2014, the European Parliament resolved to support proposals to include a ground for refusing an arrest warrant

“where there are substantial grounds to believe that the execution of the measure would be incompatible with the executing Member State’s obligation in accordance with Article 6 of the TEU”—

the treaty on European Union—“and the Charter”, which is the charter of fundamental rights of the European Union. For its part, the European Commission has said that it would prefer to adopt legislation on minimum procedural rights standards and action on implementation of the judicial co-operation instruments such as the supervision order and European investigation order. I am not saying that more cannot be done, but it is fair to recognise that the door is open to making progress and resolving some of the issues highlighted today.

In short, we should continue to want the UK to be involved in the European arrest warrant system. We should work to find solutions from within the system rather than starting again from scratch. I say that because the alternatives would be very difficult. Negotiating 27 separate bilateral agreements would be a hugely significant task and almost certainly would not bring the same benefits, while retaining many of the same problems. A separate deal with the EU as a whole is possible, but we know from the experience of Norway and Iceland, despite their both being Schengen countries, that that can also be an incredibly long process and the resulting system could involve variations from the main system that would make it weaker than what we have as a member of the system itself.

The Government have said that they, too, see the benefits of the European arrest warrant process. However, we need to hear more about how they intend to get there. After all, the current Prime Minister warned when she was Home Secretary that Brexit likely meant no EU arrest warrant participation at all. Her fixation on excluding any involvement of the European Court of Justice seems to be the biggest barrier to continued participation in the arrest warrant system. The Government must get their priorities right and not allow that fixation to scupper the bigger goal. We need to ask these questions. What precisely are the Government seeking to secure? How will they do that? And will they let go of their fixation on the European Court of Justice if that is what is necessary to secure ongoing participation in the arrest warrant scheme?

Immigration Rules (International Students)

Debate between Stuart C McDonald and Keith Vaz

Wednesday 16th November 2016 Westminster Hall

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move,

That this House has considered immigration rules for international students.

It is a pleasure to serve under your chairmanship, Mr Gray. Tomorrow is International Students’ Day, so I thank hon. Members for turning out to mark the occasion. I also thank the numerous organisations that have got in touch to provide helpful thoughts and briefings—enough to fill the debate, although I promise I will not do that.

The debate offers us the chance to celebrate the contribution of international students to our education sector, our economy and our whole society. But not just that—it is also the perfect time to reflect on where the UK is in the increasing global competition to attract international students, what our ambitions should be and whether the Government are pursuing the right immigration policies to achieve those. I suspect that hon. Members will need little persuading that we should celebrate international students, so I will only briefly put on record the economic, social and cultural benefits that they bring.

In economic terms, international students’ contribution to UK GDP almost certainly exceeds £10 billion per year and supports around 170,000 full-time equivalent jobs. Many international students go on to undertake post-doctoral research in the UK, helping to drive world-leading research. All analysis of the economic effect of taking on international students shows that they have a significant net benefit.

[Keith Vaz (Leicester East) (Lab)]

I congratulate the hon. Gentleman on securing the debate. Leicester has two great universities—Leicester University and De Montfort University—that have a number of international students. Does he agree that not only is it important that we have fair and effective rules so people can answer criticisms that are made of them, but the Government’s rhetoric is extremely important? We should encourage more international students to come and study here in the United Kingdom. If they do not, they will just go elsewhere. There is a big market out there, and unless we have them here, we will lose the revenue and advantages that they bring.

[Stuart C. McDonald]

I agree wholeheartedly. Indeed, I will mention later the messages that the Government have been sending out and the negative headlines that they have been attracting in key markets for international students. The Government must seriously rethink those messages.

When considering the economic benefits of international students, we must also think about the personal and professional links that 84% of those students maintain after they leave the United Kingdom. They are a tremendous source of soft power for this country and allow trade links and political alliances to be built. We should also remember that those benefits are triggered not only by our universities; hundreds of thousands of other students are taught English as a second language in the UK each year at around 450 institutions accredited by the British Council.

The benefits of attracting the brightest international students go way beyond the economy. Such students enrich and diversify the research and learning environment by exposing our own students and staff to different approaches, contributing to their international experience and skills, and creating a more culturally diverse environment.

Humanitarian Crisis in the Mediterranean and Europe

Debate between Stuart C McDonald and Keith Vaz

Wednesday 9th September 2015 Commons Chamber

[Keith Vaz]

We all share those worries, and that is why it is important that a proper structure is created.

My final point is about north Africa and how we deal with it. I have just come back from Tunisia, where I visited the hotel at which 38 British citizens were sadly murdered. I had meetings with Tunisian Ministers about how they were dealing with the migration crisis. They were doing well. They were showing great humanitarian support and deploying their navy to ensure that the people traffickers in their waters were dealt with, and economic migrants were returned to their countries humanely. We should compare that with Tunisia’s neighbour, Libya, where there is no control and the criminal gangs are operating.

I know that the Minister for Immigration is focused on what is happening in Europol, and we need to give it more resources. The Secretary of State for International Development talked about the taskforce that has been set up, but it has not been set up yet—it will be set up by November. It will be based in Sicily and will involve the National Crime Agency and other organisations. Europol is the only organisation that can deal with all the countries of the European Union and bring to the table expertise in dealing with criminal gangs, but it has not been given any additional resources for that task. I hope that the Minister for Immigration or the Home Secretary will make the point at the meeting next week about the importance of supporting that organisation. Unfortunately, Frontex has been a bit of a failure in dealing with those issues—we cannot of course be in Frontex formally because we are not in Schengen—and has not alerted others to the problems caused by the migration crisis.

We need to make sure that something is done to deal with the criminal gangs. The Prime Minister and others are keen not to send messages to the people traffickers by accepting people who have already arrived in the European Union, and I understand that. I understand why recruitment has to be direct from the camps, but there will be exceptional cases, such as Syrian refugees who have made it all the way to Calais—as the House knows, the mayor of Calais appeared before my Committee yesterday. To expect them to go all the way back to the camps in order to come to the United Kingdom would be unfair. I accept the general principle—once we announce we will take people from everywhere, the traffickers will take €10,000 from people to get them across the Mediterranean—but we need to be able to make exceptions for exceptional cases. We need to address that lack of flexibility.

[Stuart C. McDonald]

Does the right hon. Gentleman agree that that applies in particular to those at Calais who have family and friends in the United Kingdom? As we both know, the mayor of Calais confirmed yesterday that in her experience significant numbers of those in Calais were in that situation.