Leaving the EU: Legal Services

Alex Chalk Excerpts

Wednesday 28th March 2018 Westminster Hall

[Robert Neill]

My hon. Friend makes a very important point. At the moment, the UK is the jurisdiction of choice for the majority of commercial law contracts, litigation that follows from them, and commercial law arbitration, but we cannot take that for granted. A number of English language commercial courts that apply UK law have already been established elsewhere in the world. As I understand it, another is proposed in Amsterdam, which would clearly have an impact once we leave the EU. Mutual recognition of judgments is one of the UK legal sector’s key asks, and he anticipated with great timeliness that I was about to move on to what the Law Society, the Bar Council, the City of London Corporation, TheCityUK and others in the sector are looking for from the Government to maintain the position of UK legal services once we leave the EU.

The legal services sector’s key priorities are as follows. First, EU27 legal providers should be permitted to provide services in the UK, and vice versa—UK legal providers should be able to provide services in the EU27—on the basis of mutual recognition of regulatory regimes. That would enable European lawyers based in London firms and UK lawyers based in the EU27 to continue to advise and represent their clients.

Secondly, the UK and the EU27 should continue automatic mutual recognition of legal qualifications gained before and during—and after, I submit—the UK’s exit from the EU. That ought to be part of the agreement we seek. Otherwise, we would be in the perverse position that an English lawyer who, like me, is also qualified in the Republic of Ireland—I am a member of the Irish Bar—was able to continue to practise in the EU27 using their Irish qualification but not their English qualification. That is why there has been a considerable increase in the number of English solicitors being admitted to the Law Society of Ireland and English barristers seeking to be called to the Irish Bar. It would be much more sensible to retain those people in the UK as part of a mutual deal with our EU partners.

Thirdly, as my hon. Friend said, it is critical that UK court judgments can continue to be enforced in the courts of the EU27. That obviously applies to commercial law, but it also impacts maintenance payments, for example. Let us say that the partner from whom a UK national is having difficulty getting support for their child is an EU national who is living back in the EU27. Maintenance payments, like a judgment in the largest commercial litigation, can currently be enforced in any EU27 court and implemented by the authorities of any EU27 member state by virtue of our membership of the EU. One regulation covers the whole lot. It is important that we seek to preserve that arrangement. It would be extremely complicated if we had to enter into arrangements with individual EU member states, so we must try to do it en bloc.

It is also to the benefit of the EU27 to have the judgments of their courts recognised and enforced in the UK. There would be mutual advantage to preserving that arrangement, and it is most important that that is done without any break in continuity. Contracts of all manners are being entered into that, in all likelihood, will run beyond the date on which we leave the European Union. It is essential that people can enter into such contracts with sufficient certainty that they will be enforceable throughout the transition period and in the end state after we leave.

It is suggested that, as well as seeking the broadest possible deal with the European Union on that, the UK should consider re-signing The Hague convention as an independent party. I suggest that the two are complementary—it is not either/or. We are currently a party to that convention by virtue of our membership of the EU, but that will no longer be the case once we leave. I ask the Minister to take on board the concern that, in the negotiations, we should seek a waiver from the EU to allow us to re-sign as an independent party prior to Brexit so that there is no delay in ratification.

[Alex Chalk (Cheltenham) (Con)]

My hon. Friend is making a powerful case, and I entirely agree with him about The Hague convention, but does he agree that the great prize would be replicating the provisions of the recast Brussels I regulation, which derives from EU regulation 1215/2012? That is the gold standard. It is the best option, and The Hague convention is very much a fall-back provision.

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

It is a pleasure to serve under your chairmanship, Mr Davies. It is also a pleasure to hear the debate brought about by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill) and the contributions made by the other members of the Justice Committee. That Committee is doing a huge amount of work to ensure that the issues that matter in our justice system are brought to the forefront and to Ministers to ensure that we have the best possible justice system going forward.

Today, as always, my hon. Friend highlighted important issues that affect us in relation to Brexit. Like him, I acknowledge the important work done by our legal services sector. By reference to points similar to his, there are four key points. The first is jobs, and the legal services sector is the source of many jobs. As he rightly mentioned, it employs well over 300,000 people.

Secondly, the sector contributes significantly to our economy: £24 billion every year. As my hon. Friend highlighted, that money is brought in by not just the legal services sector but its interdependency and relationship with the financial services sector. He mentioned TheCityUK, whose CEO, Miles Celic, highlighted that very point. He said:

“The UK-based legal services sector forms an integral and crucial part of the wider financial and related professional services ecosystem which makes the UK a truly globally-leading international financial centre.”

The legal services sector does not only those things but so much more. It supports people when they are most vulnerable. Many lawyers give up their time to support others for free through the Bar Pro Bono Unit and LawWorks, and I was pleased to see the launch in 2014 of the UK collaborative plan for pro bono, with more than 40 firms committing 325,000 hours a year to support the most vulnerable.

Our sector is so successful because we have outstanding professionals. We have a well-established system of law and a first-class judiciary, whose expertise and impartiality is recognised throughout the world. For those reasons, my hon. Friend is right to say that we need to protect this sector post Brexit, and we are doing that in a number of ways.

My hon. Friends the Members for Henley (John Howell), for Cheltenham (Alex Chalk), and for Bromley and Chislehurst referred to the importance of mutual recognition and the enforcement of judgments. I hope that in our withdrawal agreement we will soon reach an agreement on the protection of and mutual recognition of judgments, and on separation for cases that are pending and currently before the courts.

[Alex Chalk]

I am encouraged to hear that. Some of the evidence presented to the inquiry stressed that if we get such an agreement right, there is a great opportunity for a springboard, particularly in east Asia, where there is a lot of work that British lawyers can seek to win. However, that will require that sound foundation of mutual recognition of judgments, and mutual enforceability.

[Lucy Frazer]

I am grateful to my hon. Friend, and it is important to give certainty to the legal services sector, so that they can advise their clients accordingly. My point was about the withdrawal agreement and what will happen to cases that are already pending before the court. The second stage of our negotiation was about implementation, and we have given businesses legal certainty by ensuring that our current arrangements will continue to apply during the implementation period. We are starting to negotiate and come to an arrangement on what will happen in future after we leave the EU.

My hon. Friend the Member for Cheltenham was right when he mentioned the gold standard and the Brussels regulation, and my hon. Friend the Member for Henley was correct to identify the importance of the Hague convention. Both those things are important, and we hope to secure the Hague convention as a minimum. It is right to ensure that there will be no gap before we rejoin that convention, and we are pressing to secure that. Our ambition and aim is to negotiate as hard as possible and ensure arrangements and protections in future that are similar to those we currently have.

My hon. Friend the Member for Bromley and Chislehurst raised the important question of legal services, the right of citizens to practise here and abroad, and the mutual recognition of qualifications. Again, on separation, as part of the withdrawal agreement we have agreed that any lawyers within the scope of the citizens’ rights agreement who have become part of the host profession in the member state should remain recognised and able to practise. Last week we agreed the terms of the implementation period, in which we will have the same rules as now. Therefore, rules on market access will continue, including on the provision of services and establishments for lawyers. The Government are keen to ensure a good deal for the legal services sector in future.

European Union (Withdrawal) Bill

Alex Chalk Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Sir Oliver Letwin]

Will my right hon. and learned Friend give way?

[Alex Chalk (Cheltenham) (Con)]

Will my right hon. and learned Friend give way?

[Mr Grieve]

May I just make a tiny bit more progress?

As the Government’s position has shifted, they have come up with a written ministerial statement, which seems accurately to reflect the right direction of travel. But the difficulty is that clause 9 is entirely incompatible with what the Government have set out.

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[Mr Grieve]

It would indeed be a remarkable outcome. Certainly, I think that Parliament ought to have a say. Those reasons highlight the difficulty of clause 9. There are other difficulties with the Bill, but clause 9 really has it.

I want to bring my remarks to an end, and I simply say that I do want the Government to listen. The opportunity is here for them to accept the amendment and then to come back on Report and explain themselves further or to tidy the amendment up, and I will listen and try constructively to help them if, indeed, any of this power is needed, but I am not prepared to sign off clause 9 in its present form.

The one merit of amendment 7—I tailored it very carefully and I tried quite deliberately to avoid the no-deal scenario, which is a very legitimate issue, but it is not what I went for—is that I wanted to make sure that these powers could not be used to pre-empt a statute that we should probably be considering this time next year. It is plainly wrong, and if it is to be departed from, the Government have to provide a credible reason for it.

[Alex Chalk]

May I ask my right hon. and learned Friend about a point I am struggling with and that others may be struggling with, too? On the one hand, given that the Government have conceded that there will need to be a statute to implement any agreement, it is difficult, for me at any rate, to see what the point is of clause 9, and Parliament should not legislate in vain. That is point one. On the other hand is the key point not that we will get a vote on that statute, so does this really matter? That is the part I am struggling with, and I would very much welcome my right hon. and learned Friend’s views.

[Mr Grieve]

I think that this does matter. If I understand the reason why the Government want this power, it is that, at the time when we may be considering the next statute, they will also be pushing through this House statutory instruments setting up structures for our departure from the EU that may be, or that we might consider to be, at variance with what we need in the fresh statute that we are considering. I think that that is a form of constitutional chaos, actually. I cannot see how it produces any clarity at all. For that reason—a reason of good process—this is a mistaken course of action, particularly because it is not necessary.

We have heard the argument, “We’re going to run out of time in leaving the EU.” I simply repeat what I have said previously. I realise that this is hugely objected to by some of my right hon. and hon. Friends because they are so fixated on getting us out. The article 50 mechanism provides for a sensible structure to enable us to leave smoothly, yet for reasons that I do not understand, the aim of some of my right hon. and hon. Friends seems to be to mess it up as much as possible. There is the famous amendment 381, for example, which we are going to come back to next week and which I have already indicated I will not support under any circumstances whatsoever. If we actually stick to a sensible process, I say to my hon. Friend the Member for Cheltenham (Alex Chalk), then we will get the right answers. As I say, if the Government are to justify keeping clause 9, they have to provide us with chapter and verse—and they simply have not done so. I have asked, and I have not had it.

In those circumstances, the only proper course of action—I say this with the greatest reluctance—is that I am going to have to vote for my amendment, and, if necessary, if it is not passed, I will vote against clause 9, because without my amendment, clause 9 becomes a really very worrying tool of Executive power that does not appear to have any reasonable presence in this legislation. Apart from on HS2, I do not think that I have ever rebelled against the Government in my 20 and a half years in this House. I do find it quite entertaining that some who criticise me for speaking my mind on this matter are individuals who appear to have exercised the luxury of rebellion on many, many occasions. But that said, there is a time for everybody to stand up and be counted. As Churchill said, “He is good party man—he puts the party before himself and the country before his party.” And that is what I intend to do.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 5th December 2017 Commons Chamber

[Dominic Raab]

There is a range of support for early legal help, as I have already detailed—£100 million of support—and that can be online or telephone support, but also representation. Since 2015 we have invested £5 million in the litigants in person strategy. There is a range of support available, but of course we can review this in the round through the review.

[Alex Chalk (Cheltenham) (Con)]

We are a nation of laws, but we must be one nation too, with access to justice for people from all backgrounds. Does my hon. Friend agree that, post the LASPO review, the most careful thought should be given to bolstering legal aid resources so that we can have early advice and assistance for all?

European Union (Withdrawal) Bill

Alex Chalk Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Paul Blomfield]

I was not about to go on to that, but clearly I am now. The hon. Gentleman knows that the charter was not binding when it was first adopted in 2000. It was made legally binding by the Lisbon treaty of 2007, which entered into force in 2009. It has, as the right hon. and learned Member for Beaconsfield pointed out, increased in significance, and the rights that it contains have become more visible and correspondingly more effective. Labour supported the charter then, and we support it now, because it has enhanced and improved European human rights protection, and by doing so it has significantly developed the quality of human rights protection in the UK. The wider point that the hon. Member for Stone (Sir William Cash) makes is not relevant to the issue under discussion.

[Alex Chalk (Cheltenham) (Con)]

The charter applies only when national authorities are implementing EU law. Does the hon. Gentleman not agree that if it is retained, it risks creating a confusing inconsistency by giving citizens powerful rights to strike down some pieces of legislation, but not others? Is it not a case of doing either the whole thing, or nothing at all?

[Paul Blomfield]

I will come on to this point, but the charter is key to ensuring that retained law is treated properly and that the same rights of enforcement continue in the future. Without the charter, those rights are significantly diminished and access to them is diminished.

Let me proceed with the point I was making about how the charter goes wider than the Human Rights Act and the European convention on human rights, which I hope I am right in saying the Government accept. As other Members have already pointed out, it was the Secretary of State for Exiting the European Union who relied on the charter in the case he brought before the High Court in 2015, against the then Home Secretary and now Prime Minister, when he was worried that the Data Retention and Investigatory Powers Act 2014 would impact on MPs’ ability to communicate with constituents confidentially. He cited the charter, and his lawyers argued that it went beyond the European convention on human rights and granted further protection. He relied on the charter precisely because it provided greater human rights protection than was provided for by UK law and even by the case law of the European Court of Human Rights.

Despite this, the Government have not indicated which decisions of the Court of Justice of the European Union under the charter they disagree with. Moreover, the explanatory notes to the European Union (Withdrawal) Bill justify the decision to exclude the charter from retained EU law by saying:

“The Charter did not create new rights, but rather codified rights and principles which already existed in EU law. By converting the EU acquis into UK law, those underlying rights and principles will also be converted into UK law, as provided for in this Bill.”

If that were the case, it would be fine, but it is clearly not the case.

Drawing on existing rights, the charter set out a new framework for human rights protection under EU law. The rights contained in the charter may have existed in EU law for decades—the Government are relying on that point—but that is not enough. The whole point of the charter was that nobody could verify those rights or their sources, and as the lawyers among us will know, identifying the source of a right is imperative in securing effective recourse. In his speech, will the Minister therefore clarify whether the Government have succeeded, where others have not, in comprehensively identifying every single source of these rights? If not, how do they plan to uphold the same level of protections for these rights once we have left the European Union, because a right without effective recourse is rendered effectively meaningless?

By compiling and codifying these rights in a single document, the charter in effect created new rights and certainly created new protections. In short, the charter is the most effective key to unlocking vital rights, and to fail to transpose it and make it operable in UK law is to lock away those rights and deny UK citizens the key to accessing them.

On the data protection point on which the Secretary of State relied—my right hon. Friend the Member for East Ham (Stephen Timms) raises it in his amendment 151, which we support—the right to data protection exists in various documents, such as directives and regulations, but it was only by virtue of the charter creating the expressed right to data protection in article 8 that we were given the right to be forgotten.

The rights extended by the charter are not only data protection rights. Such rights start in article 1, which includes the right to human dignity. This does not exist as an enforceable right in common law or statute law applicable to retained law post-Brexit. Will the Minister, when he responds, explain how this right will be enforced after exit day if the charter is not retained?

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[Alex Chalk]

It is a pleasure to be able to say a few words this evening. May I say what a pleasure it has been to listen to this debate, which has been a paradigmatic example of what a Committee debate should be? It is not about the principles of whether we supported leave or remain; it is about ensuring that the legislation is in the best possible shape, because that is our job.

I want to confine my remarks to two areas. First, I will talk about amendments 139 and 302, tabled by the hon. Member for Wakefield (Mary Creagh) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) respectively, regarding the right to seek Francovich damages post-Brexit; and then I will turn to the charter. On the first issue, it is axiomatic that, if the acts of the state that caused loss took place at a time when a remedy was available, it would be wrong for that remedy to be ripped away unilaterally. It is a principle of British law that past acts or omissions must be considered in the context of the law as it applied at the time. I have heard gratefully the Solicitor General’s suggestion that he might be looking again at the matter. I respectfully suggest that that would be warmly welcomed across the House.

I turn to the charter. I want to explain why I think—despite the fact that I supported remain and I do not resile from a single argument that I made—that the Government are right not to seek to retain the charter, and why to do so would create inconsistency and confusion. I speak as someone who values human rights and who has argued forcefully in favour of remaining part of the European convention on human rights. Indeed, I have said that to leave that would be a catastrophic mistake, and I am delighted that doing so has been taken off the table.

So why do I speak as I do? Before I explain that, I will set out why we must accept that the charter does add rights and it would be wrong to consider it inconsequential, although that is not dispositive. The right hon. Member for Leicester East (Keith Vaz) suggested that it was of no more legal effect than The Beano. That is not correct. Although it is true that there is some duplication, as compared with the ECHR, there are four ways in which the charter adds rights.

First, the charter creates some substantive new rights, which some have referred to as third category rights, including the right to dignity, the right to protection of personal data, the right to conscientious objection and guarantees on bioethics and independence for disabled people. Secondly, the charter widens the scope of existing rights in English law. One example is the right to a fair trial, which exists under article 6. The charter extends that right beyond the mere determination of civil rights and obligations and criminal charges to cover, for example, immigration cases, such as the ZZ case. Thirdly, it creates a new right to invoke the charter in respect of anyone with an interest. That is, of course, far broader than the convention. Fourthly, and most importantly, whereas breaches of the ECHR can lead only to a declaration of incompatibility, action in the case of a breach of the charter is far more muscular, because it allows the charter to take precedence over UK law and, effectively, disapply it.

Having set out all that, why am I not arguing in favour of retaining the charter? The simple reason can be summed up in one word: inconsistency. There is already an inconsistency in the law. A litigant in a case involving the implementation of EU law—that is, of course, the only category of litigation to which the charter applies—is armed with a powerful legal sword, which he can use to strike down the law. But when it comes to UK-derived law, no such legal sword exists, so the scope for absurdity becomes clear. Suppose the state were to pass a law that was a clear affront to human rights. Suppose it wanted to detain suspects without charge for six months or bring back the stocks, in breach of article 4 on torture and inhuman and degrading treatment or article 3 on slavery. In those circumstances, all the litigant could do would be to try to persuade the court to make a declaration of incompatibility; the law could not be struck down. Yet if the UK sought to enforce a law regarding personal data, it could be disapplied. Would that not create a bizarre inconsistency? Such an inconsistency already exists, by the way, but I suggest that it would become more egregious and more difficult to sustain post Brexit.

[Rachel Maclean (Redditch) (Con)]

I am following my hon. Friend’s arguments very carefully, and I am very pleased to hear him setting out why the rights he is talking about will be protected after we leave the EU. Does he agree that such inconsistencies will only further the interests of lawyers, rather than our constituents, after we leave the EU?

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[Alex Chalk]

This is about not furthering the rights of lawyers, but about how we as a House ensure that there is a corpus of law that is consistent, serves the interests of our constituents and can be considered in an intelligible and consistent way.

My view is that the remedy for this inconsistency is not for us to bring in the charter lock, stock and barrel to apply to all law. We could do that, but it would not work because it would create great confusion respecting the existing European convention on human rights, which is of course incorporated into English law and British law. Instead, the time has come—not today and not tomorrow, but at some time in the near future—to look at granting British citizens a corpus of rights to sit alongside the ECHR, as a written constitution, as it were, that extends the Human Rights Act and allows citizens to apply their rights against any law in this country. The logical next stage is to have what is in effect a written constitution.

[Sir Oliver Letwin]

As a matter of fact, my hon. Friend and I may be the only two Government Members who believe in having a written constitution. I thought I was the only one—

[Sir Oliver Letwin]

There are three of us. I am very grateful. [Hon. Members: “Four.”] Let us not count. In any event, the number is small.

Does my hon. Friend agree that, in the interim, it would be a good step if the rights we identify, as a result of the Government’s analysis, as coming out of the charter—the third category rights—should in due course, although not of course in this Bill, be added to the Human Rights Act in a way that at least enables such a degree of entrenchment?

[Alex Chalk]

That is exactly right. I, respectfully, completely agree with my right hon. Friend. What has been such a benefit of this debate is that we have identified a third category of rights that Members on both sides of the House recognise there is a real public benefit in adding to the corpus of rights enjoyed by the British people. I entirely agree that we should look at whether they can be added pro tem to the Human Rights Act.

My fundamental point is that, if we are inching our way towards a written constitution, retaining the charter, which is in effect a proto-constitution, on the basis of an amendment debated for just a few hours in this Chamber is entirely the wrong way to go about it. For that reason and that reason alone, I am supporting the Government.

[Mr Simon Clarke]

I rise to support the Bill, particularly in opposition to amendments 8 and 46, as well as new clause 16.

I want to establish from the outset that I am not in any way cavalier about the concept or the subject of human rights. They underpin a free and just society, and all parliamentarians should be vigilant in their defence. Today’s debate underscores the significance of that. However, to quote Oxford’s Professor Richard Ekins:

“There is a fundamental difference between human rights and human rights law. The Charter is one way to attempt to protect human rights, a poorly framed and…inept way at that.”

Contrary to what the hon. Member for Bristol North West (Darren Jones) said, I do not need the charter of fundamental rights to be proud of my country.

There are a number of reasons why I believe the incorporation of the charter of fundamental rights into our law would be the wrong thing to do. The first concerns the scope of the charter’s application. Article 51 states:

“The provisions of this Charter are addressed to the institutions, bodies, offices and agencies of the Union…and to the Member States only when they are implementing Union law.”

Needless to say, once we leave the Union, we will not be a member state. As has been observed, many of the charter rights are necessarily contingent on our EU membership, and still more are directed not towards member states, but the Union institutions and their policies. We have already touched on that, and I will not dwell on it further.

Let us follow the logic that we should incorporate the charter into UK law. How would this work? There seem to be two possible scenarios. First, if we were to approximate the charter’s original application, we could amend it in such a way that it applied solely to retained EU law. That is the substance of the amendments. As my hon. Friend the Member for Cheltenham (Alex Chalk) has pointed out, that would lead to the bizarre situation whereby some parts of UK law would be subject to a different human rights regime. That is a recipe for confusion and disaster. Alternatively, we can amend the charter so that it increases its scope to cover all UK laws and institutions. I would hazard a guess that that is not exactly what our constituents were thinking of when they voted for Brexit.

Notwithstanding that basic point, either route would further complicate the relationship between the charter and the Human Rights Act. All transposed EU law will become subject to the Human Rights Act on transposition anyway, and having two parallel and perhaps in places contradictory constitutional Acts covering precisely the same issues in the same sphere of application would serve to undermine, rather than uphold, the rule of law. That is because charter rights, most seriously social rights, are so flexible and contested that they are vulnerable to a near infinite number of interpretations, which is precisely the problem.

When I worked for my hon. Friend the Member for Esher and Walton (Dominic Raab), he would cite a quote from Montesquieu that was absolutely on point:

“Nor is there liberty if the power of judging is not separate from legislative power…If it were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary, for the judge would be the legislator.”

Where we fail to legislate the judiciary fill the gaps. Rights creep has been a key objection from our constituents for many years, and rightly so. In at least two cases, British judges have gone beyond ECJ case law, relying on the charter to disapply Acts of Parliament. In Benkharbouche, parts of the State Immunity Act 1978 which protected embassies from immunity against employment law claims were set aside. In Vidal-Hall, part of the Data Protection Act 1998 was overridden, overturning a limitation on what damages could be recovered. As my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) said, this is properly a matter for the House to determine. The ECJ itself has overruled parts of the Data Retention and Investigatory Powers Act 2014 by reference to the charter—a decision that puts the application of the Investigatory Powers Act 2016 in serious doubt. That is not a small point. The process of striking down legislation under the charter goes far beyond the scope of the Human Rights Act, which allows the courts to make a declaration of incompatibility where there is a need to do so.

There is one final reason why we should resist charter incorporation, which is that to do so would probably be superfluous. We have heard from Ministers, who have struck a notably conciliatory tone, that the Government will provide detailed analysis of how each charter right will be addressed in a memorandum that is due on 5 December. If we are to go on to address what has been referred to as the third category of rights—rights that are not listed in the European convention on human rights and which are not rendered redundant by our leaving the EU—this process should be led by the elected House of Commons. That may very well be the right thing to do, but it is clear to everyone that retaining the charter is not the right vehicle by which to do it.

Lest we forget, the British public had no idea that the charter would evolve in the way that it has. Protocol 30 of the treaty on the functioning of the European Union states that

“the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles”.

We have heard about The Beano, and about former Attorney-General Peter Goldsmith, who said in June 2004:

“The Charter is a consolidation of existing rights...It is not a mine for new human rights in this country.”

Crucially, in 2008, on Second Reading of the EU (Amendment) Bill that ratified the Lisbon treaty, David Miliband, told the House:

“The treaty records existing rights rather than creating new ones. A new legally binding protocol guarantees that nothing in the charter extends the ability of any court to strike down UK law”.—[Official Report, 21 January 2008; Vol. 470, c. 1250.]

Our constituents were given an inaccurate prospectus of how the charter would evolve, although I accept it was made in good faith at the time. In the light of that, my position is very clear that the charter should not be incorporated into our law to go on evolving in that way according to the whims of unelected judges.

Tonight we have an opportunity to reassert one final time what this House has been told for the best part of 18 years: the rights under which we live should have their origin in this House and, ultimately, in the British people, under whose authority we serve.

Dangerous Driving involving Death: Sentencing

Alex Chalk Excerpts

Tuesday 17th October 2017 Westminster Hall

[Alex Chalk (Cheltenham) (Con)]

Will the hon. Gentleman give way?

[Kevin Brennan]

I will give way briefly, but I want to give the Minister a chance to respond.

[Alex Chalk]

The Sentencing Council does important and valuable work, but does the hon. Gentleman share my concern that in some of its guidelines—for the sake of argument, let us say assault occasioning actual bodily harm, for which the maximum is five years—the range that the Sentencing Council imposes for the most heinous offence stops well short of the maximum, effectively sending a steer to the judges that says, “Don’t ever sentence for the maximum”? Does he agree that that is a concern?

[Kevin Brennan]

I do, and I think that there are similar concerns in relation to the offence of causing death by dangerous driving. I do not advocate not having proper guidelines—we want consistency in sentencing—but it sometimes seems to victims that the sentence they are told the perpetrator is likely to get is a bit of a fiction, and that the tariff actually served is nothing like the maximum, even in a case such as the one I have discussed, in which there are horrific aggravating factors. Can the Minister address the questions posed by Sophie Taylor’s case about the frequency and circumstances in which a maximum sentence is given?

I want to make it clear that this is not about revenge; it is about justice. In the case that I am discussing, sentencing guidelines led to an outcome that outraged not only the victims’ families but the wider community. The Government need to be clearer about what they are doing to deter such crime. Knowing that a life sentence is a real possibility would be a start, as would increasing the likelihood of getting caught by funding the police properly; that is a vital part of it. The prospect that sentences could be increased on appeal when judges are too lenient is also important. I understand that out of 713 such requests in recent years, 136 have resulted in longer sentences, but not one has been for the offence of causing death by dangerous driving.

Sophie Taylor’s death was a horrible tragedy. Nothing will relieve her family’s loss. However, the perception that justice was not done because the maximum sentence is unreachable adds another burden for them to bear.

[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a great pleasure, as ever, to speak under your doughty chairmanship, Mr Hollobone. I begin in the customary manner by congratulating the hon. Member for Cardiff West (Kevin Brennan) on securing this debate on sentencing for causing death by dangerous driving offences. I know that many colleagues here will have dealt with tragic cases in their constituencies; we have heard, movingly, of a couple of them. Those who have had that misfortune will know that reckless driving ruins lives and devastates families, whether the culprit is racing, talking on a mobile phone or under the influence of drugs or alcohol.

The hon. Gentleman has championed this cause tenaciously since the tragic case in the summer of 2016 in which Michael Wheeler and Melissa Pesticcio started a car chase that, as he described, left Sophie Taylor dead and her passenger Joshua Deguara seriously injured. I extend my deepest sympathies to Sophie’s mother Jackie, whom the hon. Member for Cardiff West described, and to Sophie’s wider family and friends. I cannot begin to imagine their loss. The technical and legal changes that we are making will not bring her back, but these reforms must try to deliver some reassurance and solace, through a greater sense that justice is being done. I also pay tribute to Joshua Deguara and his family, whose suffering has been immense. The case highlights the need for reform.

Thomas Crowther, QC, the Cardiff Crown court judge in the case of Sophie Taylor, said that

“that shattering of two families was completely avoidable. It was caused by…the self-righteous and jealous rage”

of the defendants, who were

“chasing her down to frighten her and teach her a lesson”.

The court sentenced Michael Wheeler to seven and a half years in prison and Melissa Pesticcio to six and a half years.

Such cases are far too common. The reforms that we have announced this week will come too late for the families of Kris Jarvis, John Morland and James Gilbey, to name the victims of just a few of the tragedies that have struck me as I have worked on proposals for reform. The hon. Members for St Helens South and Whiston (Ms Rimmer) and for Lewisham West and Penge (Ellie Reeves) gave moving accounts of tragedies in their constituencies; I pay tribute to them and extend my sympathies and condolences to the families. I appreciate the frustration and anguish that they must feel. I met Major Gilbey, James’s father, last week. It is right to pay tribute to his courage and strength, and to all the families who have campaigned for a change in the law. Numerous colleagues across the House have also raised cases with me and my predecessors at the Ministry of Justice.

We recognise that the law has too often prevented judges from handing down sufficiently long sentences for the very worst cases of dangerous driving, bearing in mind the severity of the harm and the anguish of the victims’ families. We have looked at the evidence, and now is the time to change the law. Although we cannot bring back lost loved ones, we can make sure that justice is done. Yesterday, we published our response to the consultation on driving offences and penalties relating to causing death and serious injury. The consultation, which closed earlier this year, received more than 9,000 submissions with different views on the offences and penalties. That shows the widespread public interest in reform and the concern about how the law has operated.

Based on the evidence, we propose three specific changes to the law. I hope the hon. Member for Cardiff West will welcome them, but I will also try to address his specific points. Even more importantly, I hope the changes will give the victims and the wider public a stronger sense that justice is being done. All three proposals received overwhelming support in the consultation.

First, we propose to increase the maximum penalty for causing death by dangerous driving from 14 years to life imprisonment. We want the courts to have additional powers to deal with the most serious cases in which life is lost. In 2016, the average sentence for causing death by dangerous driving was five years. In the last two years, three sentences of longer than 10 years have been imposed. That makes the case that those sentences are not attracting the level of seriousness that the hon. Member for Cardiff West and the Government think is due.

In answer to the hon. Gentleman, the point of the change is to send an unequivocal, crystal-clear message to the courts that they can and should impose a higher sentence—a life sentence—for the very worst cases. It is for the Sentencing Council to decide whether new guidelines are needed on this sentence or on any of the others that I will mention. He is right to mention that the ULS—unduly lenient sentences—scheme applies to those cases and that they will therefore be referred to the Court of Appeal if the Attorney General so decides. He rightly acknowledges that as politicians, we cannot and should not interfere with individual decision making, as opposed to the sentencing framework that applies in such cases.

In very serious cases in which there are multiple victims, in which the offender has previous convictions or in which their behaviour is particularly reckless and culpable—as in some of the cases described by the hon. Members for St Helens South and Whiston and for Lewisham West and Penge—offenders will face a maximum life sentence. The effect of that change is twofold. Offenders who receive a life sentence will serve a minimum period in prison and will be released only when the Parole Board considers it safe. For offenders who do not merit a life sentence, the court will have the power to impose a determinate sentence of any length. That will empower the courts to reflect the full severity of the worst offending and its devastating impact on victims and their families.

[Alex Chalk]

The Minister speaks about sending a powerful message. A powerful message is sent to the Sentencing Council too. Does he agree that for offences such as stalking, for which the maximum sentence has been doubled, that message has been reflected to a large extent in the Sentencing Council’s most recently published guidelines?

[Dominic Raab]

My hon. Friend is right. I remember his tenacious campaign on that subject from my early days as a Justice Minister. As well as empowering the courts, the change sends a message that will have an effect, right through the system, on the raw power available to a sentencing court. It will have a knock-on effect on the Sentencing Council and its ability to assess and consider whether further guidelines need to be provided. At the appeal level, there is also the ULS scheme.

In the time available, I will address the other key proposals. The second proposal is to raise the maximum penalty for the separate offence of causing death by careless driving while under the influence of drink or drugs. We recognise that although the driving in such cases may not amount to dangerous driving, the overall seriousness of the offence is the same, because of the combination of careless driving and the irresponsible decision to get behind the wheel under the influence of drink or drugs. Again, for the worst cases, we propose that the maximum sentence be life imprisonment.

Our third proposal will close a gap in the law. At the moment, if a driver who is driving carelessly injures another road user, passenger or pedestrian, the maximum penalty is a fine, even if the incident results in the victim being left with serious, debilitating or permanent injuries. The case that particularly struck me was that of Sophie Wilkinson, who was left in a coma with a life-changing set of injuries after a horror crash in 2007. We need the criminal law to cover careless driving that results in such severe harm and injury, so we will introduce a new offence of causing serious injury by careless driving. That offence will carry a custodial penalty and will sit alongside the existing offence of causing serious injury by dangerous driving.

Those are the three key areas of reform that we plan to implement as soon as parliamentary time allows. We will incorporate any further changes that emerge from the review of cycling safety announced by my right hon. Friend the Secretary of State for Transport last month, so that we have a consistent overarching framework for sentencing people who kill or cause serious injury on our roads. I am grateful for the time and effort that so many people, including the hon. Member for Cardiff West and the campaigning families, put into their responses to the consultation. No punishment in these cases can make up for the loss of a loved one, but we can make sure that justice is properly done.

Oral Answers to Questions

Alex Chalk Excerpts

Tuesday 5th September 2017 Commons Chamber

[Dominic Raab]

I share the hon. Lady’s desire to see the most robust sentences for animal cruelty. The Government keep the sentencing framework under regular review, and I am not sure whether she is aware that in January the Sentencing Council published new guidelines on relevant aggravating factors in animal cruelty cases.

[Alex Chalk (Cheltenham) (Con)]

In the past 18 months, three of my constituents have died in HMP Bristol, which has one of the highest numbers of self-inflicted deaths in custody. What reassurance can be provided that that prison is being given the scrutiny and support that it needs to get those figures down?

[Mr Gyimah]

Every death in custody is a tragedy, and I offer my condolences to the families of my hon. Friend’s constituents. We have increased the staffing level at HMP Bristol by 31 prison officers in the past year. I chair a weekly safer custody meeting with officials to drive forward improvements, and I review the details of every self-inflicted death to see how we might prevent others. We have also launched an internal review of our approach to safer custody, specifically in relation to mental health patients, and I would be willing to visit my hon. Friend’s prison in order to deal with this further.

Prison and Youth Custody Centre Safety

Alex Chalk Excerpts

Wednesday 19th July 2017 Commons Chamber

[Dr Lee]

The unit to which my hon. Friend refers has been set up by the Department to ensure that the recommendations are followed. I gather that this is the first time that such a unit has been created. With regard to youth justice and to women’s justice, the key is to build a network over time—it will take a long time—that allows people to be held closer to home, so that families, and mothers in particular, can stay in contact with their children. That is our intention. I have mapped out the country with regard to women’s justice and youth justice to ensure that what we bring forward fits the framework, so that we can deliver time in prison closer to home for women and young people.

[Alex Chalk (Cheltenham) (Con)]

There is a grave situation in our prisons, and the Minister is being typically frank in acknowledging that. One problem is the large cohort of prisoners languishing on indeterminate sentences for public protection. Will the Minister confirm that the Government are committed to getting that number down as quickly as possible?

[Dr Lee]

That has been a long-running issue in the prison system, and the answer to my hon. Friend’s question is yes.