Leaving the EU: Justice System Debate

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Department: Ministry of Justice

Leaving the EU: Justice System

David Hanson Excerpts
Thursday 29th March 2018

(2 years, 4 months ago)

Westminster Hall
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Ministry of Justice
Sir Robert Neill Portrait Robert Neill - Hansard
29 Mar 2018, 1:39 p.m.

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.

David Hanson (Delyn) (Lab) Hansard
29 Mar 2018, 1:46 p.m.

It is a pleasure to serve under your chairmanship, Ms Buck. I welcome the Minister to her role in the Ministry of Justice. I am pleased to follow the hon. Member for Bromley and Chislehurst (Robert Neill)—as a member of the Justice Committee, he is my hon. Friend—and his introduction to the work we have undertaken. I want to focus on a couple of the issues we have raised in the Justice Committee report and some of the issues with the Government’s response.

We set out four principal aims in the report that should be central to the Government’s approach to justice post-Brexit: continuing to co-operate as closely as possible on criminal justice; maintaining access to the EU’s valuable regulations on inter-state commercial law; enabling cross-border legal practice rights and opportunities; and retaining efficient mechanisms to resolve family law cases, to which the hon. Gentleman referred.

If I may, I will focus on criminal legislation and criminal law. In our summary to the report, we said:

“Crime is ever more international.”

Self-evidently, crime does not respect borders. The EU mechanisms to combat illegal activities across borders include many EU institutions. For example, through the European arrest warrant, we have facilities to extradite and bring back to this country people who have committed or are suspected of having committed serious offences. We have investigative resources through the European agencies—Europol and Eurojust—that support police, prosecutors and judges. We also have information-sharing tools that give rapid access to suspects’ criminal records and biometric information. All those things are extremely important in ensuring that our constituents have justice and that we have the opportunity to deport people who have committed serious offences in this country to face justice back in their home jurisdictions in Europe.

We put those agenda items on the table, and the Government responded in December, before the Minister came to her post. I want to quote a couple of the Government’s comments and test them with the Minister a little bit more. In the first appendix to the report, they said:

“For criminal matters, we want to continue to cooperate across a range of tools, measures and agencies and continue the facilitation of operational business across borders. We believe that the UK and the EU should work together to design new, dynamic arrangements as part of our future partnership that would allow us to continue and strengthen our close collaboration on criminal justice.”

That is all well and good—it is a great aspiration—but my questions to the Minister are: how, when and what progress? We are 365 days from when we potentially leave.

The Government response went further:

“The UK will therefore be approaching negotiations on the future partnership with the EU as an opportunity to build on what we have already achieved through decades of collaboration, integrated working, and joint systems and procedures…the UK is unconditionally committed to maintaining Europe’s security.”

That is all well and good—nobody would disagree with that—but my questions to the Minister are: how, when and what progress?

The Government response gets more worrying. They said they acknowledge that

“when we leave the EU, the legal framework that currently underpins cooperation between the UK and the EU on security, law enforcement and criminal justice will no longer apply to the UK. As part of a deep and special partnership, it will be in our mutual interest to agree new arrangements that enable us to sustain cooperation across a wide range of these structures and measures, reflecting the importance of preserving the extensive collaboration that currently exists between the UK and the EU.”

I ask the Minister: where are we on agreeing those new arrangements? What discussions have there been? When will they publish their view? Does the EU have a timescale to agree the new arrangements? Will they be agreed before the deal in September or October or November is put to the House? Will they be agreed 367 days from today, after we have left the European Union? Those things matter.

Other members of the Committee will comment on the European arrest warrant in due course, but in 2016, 13,797 requests came to the UK from European partners for arrest warrants. UK police forces made 1,843 arrests in respect to those warrants. Many of those arrest warrants were put out across all countries because the host nation did not know where the criminal suspect was, but UK forces made 1,843 arrests, and we surrendered 1,431 suspects. We requested of our European partners 349 arrest warrants in 2016, of which 185 resulted in arrests, and 156 suspects were surrendered to the United Kingdom.

From 2010 to 2016, which I have figures for, 1,773 warrants were requested and 1,101 arrests were made. I expect that co-operation in the future, and I know that the Minister would seek it, but as of today, I do not know the road map to achieve it, and the Minister has a duty to tell us what it is. In my area in Wales, we surrendered 151 suspects, and 25 people were arrested and sent in the other direction. Such people are warranted because they will potentially be charged with serious crimes such as child sexual abuse, terrorism, or serious organised crime.

I am old enough to remember the Costa del Crime in Spain. People scarpered to Spain when they committed offences in this country and lived a life of luxury, because we did not have those arrangements. That does not happen now. I have seen police in Spain knock on doors in villas in Marbella and bring people back to this country. I ask the Minister: what will happen on that, when, how, where, and when will this House know? The London bombers, for example—I know you will be interested in this, Ms Buck—were brought back under an arrest warrant to this country, and are now in prison in the United Kingdom serving a very long sentence because of that European co-operation. Let us have some information about how we are going to progress that.

I take a great interest in Europol. We cannot get away from the fact that, as it says on Europol’s website today, Europol

“is democratically managed on the basis of a system of controls, checks and supervision of governance”

but is governed by

“EU justice and interior ministers, MEPs”

and “other EU bodies”. I ask the Minister: when we wake up, 366 days from today, on 1 or 2 April 2019, what will our relationship be with Eurojust under the new regime in the transition period? How will Ministers influence Eurojust and Europol?

Those are key issues, because we are part of 44 crime workstreams in Europol: economic crime, excise fraud, money laundering, trafficking in human beings, facilitation of illegal immigration, drug trafficking, synthetic drugs, cannabis, cocaine and heroin, other drugs, terrorism, organised property crime, illicit firearms trafficking, intellectual property crime, counterfeiting and product privacy, cybercrime, high-tech crimes, social engineering, child sexual exploitation, online sexual coercion, forgery of money, payment fraud, euro counterfeiting, money mulling, corruption, sports corruption, environmental crime, illicit trafficking in endangered animal species, illicit trafficking in endangered plant species, maritime piracy, stolen vehicles, illicit tobacco trade, outlaw motorcycle gangs, mobile organised crime groups, mafia-structured crime, forgery, illicit trafficking in cultural goods including antiquities, illicit trafficking in hormonal substances, and crime connected with nuclear and radioactive substances. Those are just some of the 44 workstreams we are part of, and over which we have governance. We have access, we share information, and operate with European partners.

This time next year, we will not be part of the European Union—we will be in transition, but we will not be part of the European community. I therefore ask the Minister again: what progress will be made, and how, where and when? I expect co-operation and a willingness to co-operate, because that is in everybody’s interests, but I am not yet clear on the road map or the final decisions.

I am not clear on that because the head of Europol is not clear on it. Rob Wainwright, who is British, is currently the head of Europol—he will no longer be, very shortly, for self-evident reasons. He spoke to the House of Lords Committee the other week, and I will put a couple of his quotes on the record in this place. He said that:

“The UK will face ‘impediments’ to receiving high-quality information from the EU’s law enforcement agency after Brexit”.

That is what Rob Wainwright said only the other week. He said

“it was not realistic for there to be no change to the UK’s relationship with the organisation after Brexit, given that only full members of the EU currently have unrestricted access to its databases…One can assume that the [European Commission] will somehow insist on some change”.

I ask the Minister again: what change will the European Union insist on? What will happen with regard to the high-quality information we currently receive? Again, I quote for your benefit, Ms Buck, and for the benefit of Hansard:

“Mr Wainwright said the UK was not likely to have direct access to Europol databases.”

That is what the head of Europol said: the UK is not likely to have direct access to Europol databases on the 44 areas I skipped through, each of which has a serious crime cohort underneath. I ask the Minister: what will happen? What is happening now? What will happen before next year? Will we have access? If not, what access relationship will we have? What will our access cost us? Will that access slow down criminal activity contact between various organisations fighting crime in this country?

Finally, Mr Wainwright

“added that Britain’s waning influence”—

just let it sink in for a moment that the head of Europol used the phrase “Britain’s waning influence”—

“over European policing could affect the country’s efforts in other areas, including modern slavery”,

which was a personal priority of the Prime Minister when she was the Home Secretary.

I believe that these matters will be solved, but it is incumbent on the Minister to give some road map on the solving of these problems. This is not a game. It is about protecting children, protecting people from modern slavery, catching criminals, stopping terrorism, ensuring that drugs do not enter this country, and helping our European partners to fight crime in their countries as well. That is in all of our interests. I know that the police and intelligence services will want to do it, but ultimately the Minister needs to tell us how.

Ms Karen Buck Portrait Ms Karen Buck (in the Chair) - Hansard

Order. Before I call the next speaker, I remind everyone that the Front-Bench speeches will start at 2.30 pm on the dot. We can comfortably accommodate all speakers if Members restrict themselves to no more than seven or eight minutes. I call Victoria Prentis.

Break in Debate

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
29 Mar 2018, 2:29 p.m.

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?

David Hanson Hansard
29 Mar 2018, 2:30 p.m.

It would also be helpful to have clarity on whether there is a cost for the UK to access these services in the event of any co-operation in due course and, if so, what estimate the Government have made of that cost.

Stuart C McDonald Portrait Stuart C. McDonald - Hansard
29 Mar 2018, 2:31 p.m.

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.

Break in Debate

Lucy Frazer Portrait Lucy Frazer - Hansard
29 Mar 2018, 2:53 p.m.

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.

David Hanson Hansard
29 Mar 2018, 2:54 p.m.

I am concerned and interested in whether the matters we have debated will form part of the agreement to be put to Parliament in October or November, if we have a final vote then.

Lucy Frazer Portrait Lucy Frazer - Hansard
29 Mar 2018, 2:54 p.m.

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.