(1 year, 9 months ago)Read Full debate
My hon. Friend is absolutely right, and the importance of that point cannot be overstated. I am absolutely confident that the Minister gets that point entirely, because we saw utterly disgraceful attacks by some of the press upon the judiciary for carrying out their constitutional task. Those words should never have been said, and I am glad to say that the current Justice Secretary and Lord Chancellor has made very clear his support for the independence of the judiciary and the respect with which that independence should be treated. I know that the Minister entirely shares that view.
My hon. Friend the Member for Cheltenham (Alex Chalk) is quite right. Broad wording on such a political topic lays the judges open to such things, because if they are obliged to act according to the clause that I mentioned—as they will be if it is passed in its current form—they will inevitably run the real risk of being accused of having taken, in effect, political decisions. That is why the President of the Supreme Court spoke in the way she did. She said:
“We don’t think ‘appropriate’ is the right sort of word to address to judges. We don’t do things because they are appropriate, we look at things because they are relevant and helpful. We do not want to be put in the position of appearing to make a political decision about what is and is not appropriate.”
That is exactly the point that my hon. Friend made so powerfully.
I know the clause is being debated in the other place, but as it stands it just does not give judges the protection to which they are legitimately entitled. I hope the Government will address that as a matter of urgency. That is not only the view of the current President of the Supreme Court; it has been echoed by her predecessor, Lord Neuberger, and by the previous Lord Chief Justice, Lord Thomas of Cwmgiedd. That is overwhelming and compelling evidence that there has to be movement on this point. It is time for the Government to do that. I suspect they would find good will across the House if they could find a means of properly addressing those concerns of the judiciary—one has to stress that those are their concerns.
The Attorney General said it was not the Government’s desire to put judges in that position. I entirely accept his good faith in that. He said:
“We will continue to work with them to provide the necessary clarity.”—[Official Report, 22 March 2018; Vol. 638, c. 389.]
That is good, but it has to be translated into legislation that is fit for purpose. We are not at that stage yet, and we need much more clarity. I hope that the Minister will be able to deal with that point and take it back to the Attorney General and those dealing with the Bill.
The issue of how we deal with the ECJ is important, but we also need to be realistic. If we want to continue some of the partnership arrangements we have, there will have to be dispute resolution processes. All the agreements will need an arbitral mechanism. I hope the Government will take on board the strong views of legal practitioners across the country that a desire to displace any role for the ECJ—as opposed to removing “direct jurisdiction”, to use the Prime Minister’s phrase, which is a different concept—may create more difficulties than is worthwhile. There are perhaps some limited areas, such as the interpretation of specific matters of financial services regulation and some matters of data regulation, where there might be sense in making a pragmatic compromise rather than having to set up a number of ad hoc arbitral mechanisms such as tribunals or whatever we might call them. That is a key and pressing issue.
There are other issues that concern the Committee on how we will deal with criminal justice and judicial co-operation. They have already been addressed at some length, and I know other colleagues will deal with them today. The point I stress is that the Prime Minister has already indicated her firm and resolute intention to have an ongoing agreement so that we can share in police and judicial co-operation and security co-operation. She is absolutely right to do that, and I support her in doing so, but we have to be realistic. If we are to benefit from such things as the European criminal records information exchange system, the work of Europol and the information exchange that is so critical to the pursuit of modern crime—whether that is terrorism or organised crime of other kinds—we have to have our data arrangements aligned. That must inevitably mean following the EU27’s data regulation and any jurisprudence that subsequently develops that touches on that. Otherwise, with the best will in the world, the police and security agencies in those EU27 countries, which include some of our most vital partners, will not be able to share information with us lawfully. We do not yet have clarity over how that will be dealt with, and we must have that swiftly.
There is also the issue of civil and family justice co-operation. I mentioned the importance of the civil sector, but we have to ensure that we have a firm arrangement for the mutual recognition and enforcement of judgments. That is certainly important for the commercial litigation sector, but it applies to all contractual arrangements. If someone has a contract, they want to be able to sue if it is breached. There needs to be a remedy that can realistically be enforced. We must have more clarity on that. As I have observed on more than one occasion, there are literally thousands of UK citizens—as it happens, most of them are mothers—who benefit from the ability to have maintenance payments enforced against former partners now living in other EU jurisdiction countries. It is unconscionable that those people, working hard under difficult circumstances, would lose the ability to have those payments enforced by a simple blanket mechanism. Warm words are not enough. That needs to be sorted out before we finally leave, whether that is in transition or the end state.
I hope that is a sufficient overview of some of our areas of concern and why we are pressing the Government on them. I look forward to the Minister’s response and the other contributions from colleagues on some of the other specific areas of this important debate, which I have no doubt the Justice Committee will return to in the coming weeks and months.
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As I said, I am very relaxed about European Court of Justice jurisdiction generally, but the hon. Lady and the Committee report make a case, specifically with regard to matters of procedure or even jurisdiction, for there being no reason for the Government to be overly concerned with the role of the Court at all.
The Chair of the Select Committee, the hon. Member for Bromley and Chislehurst, also rightly flagged up the issue of clause 6 of the exit Bill. I agree that it is unhelpful and needs to be strengthened; instead of guiding or directing judges, it seems to be buck passing. We need to protect judges from accusations of making political decisions, as the hon. Member for Cheltenham rightly explained.
The right hon. Member for Delyn flagged up the question of whether all this can be managed in less than two years. I stand to be corrected, but with justice and home affairs being areas of shared competence, I understand that agreements on participation in some of these schemes may well need approval both from the EU institutions and from individual member states. Conceivably, in some of those member states, that could mean parliamentary ratification or even a referendum. Will the Government give some clarity on whether that is their understanding, and on what contingency plans exist for that possibility?
That is a very fair point, and I look forward to hearing what the Minister has to say in that regard. What are the contingency plans if it becomes apparent very soon that we will not be able to secure all these arrangements within the current proposed timeframe?
Finally, although justice is a devolved matter and Scotland has its own distinct legal system, it will be UK Ministers doing the negotiating. As ever, I take the opportunity to exhort the Minister and her colleagues to work as closely as possible with counterparts in Edinburgh, to make sure that the implications for the Scottish justice system are properly taken into account and reflected.
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My hon. Friend should not assume that those points have not yet been considered. We are moving from an EU perspective to discuss these issues, and they will be considered.
I expect that the deal, of which that will form part, will be put to Parliament.
My hon. Friend the Member for Banbury (Victoria Prentis) rightly identified the importance of mutual enforcement and the mechanism to secure our future relationship. She asked for specifics in relation to the future relationship. The Government are looking at a number of options and are confident that an option will work. There are examples out there that other countries have used, and we would like a bespoke arrangement that works for our country.
My hon. Friend the Member for Cheltenham made an important point about the independence and integrity of our judges. I agree that it is not for them to make political decisions in exercising their independent function as the judiciary. As a barrister, I regularly referred to foreign law—I am sure he has, too—in support of points I made in courts for a number of years to support or distinguish cases. That is not an unusual feature of what goes on in our tribunals.