Independent Review of Administrative Law

Debate between Stuart C McDonald and Robert Buckland

Thursday 18th March 2021 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend, the Chair of the Justice Committee. His reference to the late Lord Bingham and the description of the audit role is an invaluable intervention. That is precisely what the Government seek to do here. It is all about protecting the role of the judiciary as well. I am a fierce defender of their role and I want to make sure that they are not inadvertently drawn into matters of policy, which are matters for this place, the Government, and democratic institutions, and not drawn into merits-based assessments as opposed to assessing the legality or otherwise of Executive action or omission.

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

I thank the Justice Secretary for his statement and the panel for its work. We will, of course, scrutinise the report carefully and constructively, but we will do so from the starting point that there is very little about this vital democratic safeguard that needs to be fixed. We absolutely do not share the Justice Secretary’s concerns about perceived expansion of judicial review. Our concern is that successive Conservative Governments have sought to constrain anything that gets in the way of their agenda: a gagging Bill on charities; restrictive trade union laws; cuts to legal aid; and, this week, the egregious attacks on the right to protest. We would be utterly failing as an Opposition if we did not approach this whole project with a healthy and significant degree of scepticism and concern. Talk of ouster clauses and restricting remedies is indeed especially alarming, and leads us to question again—is not this more about the Prime Minister’s anger at judgments such as the article 50 Miller case or the Prorogation case led by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry).

Par for the course, this announcement was trailed this week in the context of migration litigation, but, in that context, if the Government were really interested in reducing reliance on judicial review, why do they not restore the statutory appeal rights that they have slashed and burned over the past decade or invest properly in decision making, so that it is faster and more decisions are right first time? In short, it is better to fix the failing Home Office instead of meddling with one of the only systems that people have left to protect themselves from its incompetence. That is true right across Government. More reviews about asylum seekers have been talked about this week. Tomorrow, it will be people’s housing or social security cases.

Finally, the Justice Secretary has been reminded repeatedly from these Benches that the inherent supervisory jurisdiction of the Court of Session to review Acts of Government is protected by the Act of Union and the Treaty of Union. Will he confirm that anything that impinges on that jurisdiction is not for this Westminster Parliament or Government to decide?

[Robert Buckland]

I am grateful to the hon. Gentleman. May I answer his last question first? I can give him that assurance. With regard to the Cart jurisdiction, that clearly relates to a reserved matter concerning immigration issues, which does, of course, apply to the Scottish jurisdiction as well. In respecting separate jurisdictions, as I always do, these proposals relate to England and Wales matters and have been carefully delineated in that way.

With regard to the hon. Gentleman’s other assertions, I will simply say this: to conflate issues relating to public order with this Government’s approach to the rule of law and their steadfast belief in democratic institutions is, once again, to stretch reality too far. Without repeating the arguments that we had earlier this week, I cannot equate the adoption of recommendations by the independent Law Commission about the law of public nuisance with the sort of reactionary, authoritarian acts of France of the 1790s. It beggars belief that such comparisons are being made. They do not stand close scrutiny, and I am sure that in the weeks and months ahead, the intellectual poverty of these arguments will be exposed.

Oral Answers to Questions

Debate between Stuart C McDonald and Robert Buckland

Tuesday 16th March 2021 Commons Chamber

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

If he will make a statement on his departmental responsibilities.

[The Lord Chancellor and Secretary of State for Justice (Robert Buckland)]

The entire country has been shocked and appalled by the disappearance of Sarah Everard and the discovery of her body last week, and I know the thoughts of the whole House are with Sarah’s family and friends. Our minds are also on our constituents—the women who have shared their own stories of harassment and harm over the last week. After a quarter of a century of working with victims as a criminal practitioner and sitting as a part-time judge, and as someone who has worked with Members of all parties to successfully include stalking offences in our criminal law, and having taken groundbreaking legislation through this House on coercive control, these stories were all too depressingly familiar to me. Our country today should be a place where no woman has to live in fear of men, and I will continue to work tirelessly to build a criminal justice system that is better able to protect women and girls and that, most notably through our landmark Domestic Abuse Bill and the Police, Crime, Sentencing and Courts Bill, delivers more protection. The Government will work across this House to achieve that end.

[Stuart C. McDonald [V]]

I thank the Justice Secretary and echo the sentiments that he expressed.

It was the Justice Secretary who made the required statutory statement that the Police, Crime, Sentencing and Courts Bill is compatible with convention rights, but given the many voices expressing grave concerns about the impact of that Bill on our human rights —especially rights relating to protest—did he have second thoughts about making that statement and, most importantly, will he listen to those concerns and act on them?

[Robert Buckland]

I thank the hon. Gentleman for his comments, but no, I do not have any second thoughts. The particular provisions on protests are a reflection of the Law Commission’s 2015 report and of the common law in England and Wales on public nuisance, which refers to, among other things, “annoyance”, “serious annoyance” and other terms that are well known to law. The maximum penalty in common law for public nuisance was life imprisonment. That is being reduced to 10 years. Frankly, I really do not see what the fuss is about. I rather think it is a confection designed to assist an Opposition in difficulty.

Oral Answers to Questions

Debate between Stuart C McDonald and Robert Buckland

Tuesday 14th January 2020 Commons Chamber

[Robert Buckland]

I am grateful to the hon. Gentleman for raising an important issue. After the stresses and strains we have all seen the constitution being put under as a result of the tumultuous events of the past few years, it would be wrong of the Government not to pause, take stock and look at the general constitutional position through the lens of the public because it is all about public confidence and the confidence the public have in this place being the ultimate arbiter of our democracy, which is key. But we will take time and do it in a measured way. I very much hope and expect that the commission will come up with some evidence-based solutions.

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

Members have every right to be concerned about what the Government are up to with the commission, given their previous noises about human rights, judicial appointments, prerogative powers, judicial review and much, much more. Those concerns are shared not just among Members, but across civil society and beyond. Does the Secretary of State agree that in any such commission Scotland’s perspective and experiences must be properly and independently represented, and that any changes proposed to the competences of the Scottish Government and Parliament must have the consent of those institutions?

[Robert Buckland]

I am very much aware of the important devolution aspect of this issue. It is about more than devolution, of course—the Scottish legal and judicial system was never devolved because it was always separate, and even when we did not have a Scottish Parliament, it had a separate legislative framework that was legislated for in this House. I fully understand the balance that needs to be kept and I take on board the hon. Member’s comments.

--- Later in debate ---

[Robert Buckland]

The hon. Lady will remember that our manifesto talked about updating the Act, not repealing it, so her question is literally academic.

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

The Human Rights Act is also part of the constitutional backbone of devolution, so again will the Secretary of State agree that there should be no change to that Act, given all its implications for devolved competences, without the express agreement of the Scottish Parliament and Government? Otherwise, what sort of democracy are we living in if one Parliament can change the competences of another with such ease and little respect?

[Robert Buckland]

As I said to the hon. Gentleman in a previous answer, I am in the spirit of working constructively with a fellow Parliament and fellow parliamentarians. I want to ensure a situation where the whole of the United Kingdom can benefit from improvements and rebalancing, and that applies equally to the people of Scotland. I hold out an olive branch to him today. I want us to work together on these issues. We can achieve far more working together than by pursuing pointless independence referendums.

European Union (Withdrawal) Bill

Debate between Stuart C McDonald and Robert Buckland

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

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

Thank you, Mr Speaker. I want to speak briefly to amendments 55 and 56 and to probe one simple issue: in short, what happens if there is a failure to correct a deficiency in EU law, so that it cannot operate effectively after exit, and how can we maximise the chances that such a thing does not happen?

We have had plenty of debate on how we can restrict Government powers to correct deficiencies so that such powers cannot be used to undermine the incorporation of EU rules and so that we do not end up with some sort of watered-down or dysfunctional version of the original. However, perhaps the more realistic possibility, and just as much of a danger, is that we end up with a watered-down or dysfunctional version of EU rules not because of the inappropriate use of those powers of correction, but because of a failure to use them at all in appropriate circumstances, either by accident or design, or if various incorporated rules and regulations are simply allowed to fester away uncorrected and unable to operate effectively. So, I asked at Committee stage, “What happens if there is a citizen before a court in this country, seeking to establish rights under retained EU law when that retained EU law is actually riddled with deficiencies? Is the court supposed to try and make that work? Does the person simply lose their ability to exercise that right?”

My amendment 55 simply requires the court to interpret retained EU law—as far as possible—in such a way as to make it function effectively, borrowing shamelessly from the language of the Human Rights Act. I fully acknowledge that that in itself would not take us very far, but it is there to prompt a response from the Government. What should the court do in those circumstances? There are alternative courses of action that this Parliament could take, not just in amending clause 6 but in other parts of the Bill. We could expressly require EU law to be interpreted so as to be given effect “as if the UK were still a member state”, with further provisions about how that should be done. We could put in place a procedure to allow courts to flag up rules that they have found cannot operate effectively. We could put Ministers under an obligation or a duty to ensure that retained EU laws operate effectively; indeed, amendment 57 and new clause 19 are of that nature. Alternatively, as amendment 56 suggests, we could simply require the Government to publish a list of all the deficiencies they found in retained EU law that they are not seeking directly to rectify.

In short, the task of ensuring that we have a functioning rule book or statute book on exit day is twofold. Parliament must protect important rights, not only by preventing inappropriate use of Henry VIII powers, but by providing a means of ensuring that deficiencies are rectified where necessary, either by the Government, or by Parliament or by our courts, and I still think we have a long way to go in that regard.

[The Solicitor General]

I wish to speak in support of amendments 37 and 38 in the name of my colleagues in Government.

I will try and answer the question that was put to me by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), who has been getting frustrated in these debates about the somewhat technical nature of ministerial responses. Well, this is a very technical Bill. Like its illustrious predecessor, the European Communities Act 1972, it is a Bill of constitutional importance; it is a framework Bill. It is not—I stress this, because it is most important—it is not a Bill that seeks to convey a policy or a particular aspect of policy that we have discussed today. It is a framework that is designed to ensure that the law that is applied up to exit is downloaded in as clear and proper a way as possible because, to be consistent with the rule of law, the law needs to be accessible, it needs to be clear and it needs to be well understood. That is the fundamental basis of my concern about today’s amendments—that in seeking to retain the charter of fundamental rights in domestic law after exit, not only do we sow potential confusion but we fundamentally misunderstand what that charter means in the first place.