I beg to move,
That this House
has considered the implications of Brexit for the justice system, Ninth Report of the Justice Committee, Session 2016-17, HC 750, and the Government response, HC 651.
It is a pleasure, Ms Buck, to serve under your chairmanship.
I am grateful for the opportunity to raise this very important issue here in Westminster Hall, and I thank all members of the Select Committee on Justice—both past and present, and many of them are here today—for the input that they made to our report, which of course was initially produced in the 2016-17 Session.
We received the Government response to our report on
I can perhaps encapsulate the Committee’s concerns following the Government’s response to our report by saying that the response is long on good intentions and on setting out an ambitious vision, but short on specifics and the details of how that ambitious vision will be achieved, and there is a concern that it may not be realistically achievable. The European Parliament’s response earlier this month indicates that it is by no means persuaded that all of the Government’s ambitious ideas for taking this matter forward will be achievable. We need what the Government have set out to be written—or rather painted—in the boldest red ink.
I suspect, given the tenor of the Prime Minister’s Mansion House speech and subsequent events, that we will be pragmatic about some of these issues—indeed, both sides will need to be pragmatic. Because the law depends above all upon certainty, we will have to come to decisions and pragmatic compromises sooner rather than later. My objective in today’s debate is to press the Government further on the need to be more precise and specific about exactly how we will deal with these matters, and also, perhaps, to inject a sense of urgency.
Of course, I ought to refer to my entries in the Register of Members’ Financial Interests, although I do not practice law now. There is concern about the economic position of English legal services sector post-Brexit. We had a debate about that yesterday in Westminster Hall, and I am grateful to the Minister for her response then. I am sure that we will want to discuss that matter further. I will not dwell on it in detail now, but it indicates how we need to be alert and on our guard if we wish to continue to protect the pre-eminence of our English legal system. It certainly enjoys international pre-eminence at the moment—it is the jurisdiction of choice for international commercial litigation and, of course, is regarded as a gold standard in independence, fairness and integrity. As I say, we have to be on our guard in case, post Brexit, other jurisdictions seek to compete with us—legitimately enough, from their point of view—because international commercial litigation, and particularly the variety of international contracts, is a competitive matter.
I notice that there is now an English language and English commercial law court being opened up in Paris. I must say that those of us who have practised in some of the Crown courts on the south-eastern circuit might have found the idea of a brief to go to Paris quite an attractive proposition by comparison to going, say, to Havering magistrates court. However, this is not an entirely jokey matter, because, as was indicated in the debate yesterday—I will not repeat all of my remarks from then—the English legal services sector is a very significant revenue earner for this country. I should say the British legal services sector, of course, as we should not forget Scotland in this regard. But there is a much broader issue here as well, which is encompassed in our report. A number of my hon. Friends want to talk about some of the specific matters in our report, so I will perhaps sketch over some of the broad outlines.
I have indicated our firm view that we need more detail, more precision and a greater sense of urgency. We must have assurance from the Government that legal issues are being entirely mainstreamed into the work of the Brexit negotiations. The Ministry of Justice has helpfully set up a legal services working group, but this is not just about legal services; it is also about the impact upon the judiciary and the operation of the courts, which, ultimately, are perhaps even more significant.
I know that the senior judiciary are extremely alive to this issue and are doing a lot of work on it themselves. However, I submit that, consistent with maintaining the judiciary’s independence, we need to find a means whereby the judiciary’s practical views and experience are genuinely fed in to those who are negotiating, for example, on our future relationship with the European Court of Justice and on how we deal with retained law, which I will come back to in a moment. I have to say that I am not yet convinced, whatever the good intentions and hard work of the Ministry of Justice, that that is fully feeding in to those who are negotiating for us through the Department for Exiting the European Union and in Brussels. The Government need to address that urgently. It seems to the Committee that we need clarity on those key issues of the position vis-à-vis the ECJ and retained law. There is still real concern about the effectiveness and adequacy of the provisions in clause 6 of the European Union (Withdrawal) Bill.
It is instructive, perhaps, to look at the evidence of the President of the Supreme Court, Baroness Hale of Richmond, given on
However, there is a difficulty. There are phrases in the Bill stating, for example, that a tribunal “may have regard” to European Community law—there are those terms, “may” and “have regard”—but then there is a get-out clause stating that it
“need not have regard to anything done on or after exit day by the European Court, another EU entity or the EU but may do so if it considers it appropriate to do so.”
The President of the Supreme Court said that she found that drafting “very unhelpful”. If the President of the Supreme Court says that, the Government ought to sit up, take notice and do something about it.
My hon. Friend is making a really powerful point. Is not the issue here that judges do not want to be dragged into the political arena? Although courts have shown themselves well able to look at other jurisdictions for a potential steer on how to interpret things, when it comes to the EU the process is so overlaid with politics that judges could find themselves accused of becoming, in the phrase that we have heard, “enemies of the people”. We should not be in that field, and judges deserve the protection of knowing exactly what they are required to interpret.
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 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,
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.
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 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
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, that:
“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”,
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.
It is a pleasure to serve under your chairmanship, Ms Buck, and to join with former and current colleagues from the Justice Committee in discussing these important matters. I will not detain hon. Members long, because I, like others, have more questions than answers.
I will focus my remarks on dispute resolution. We know that when we leave the European Union, the EU treaties will cease to apply in the UK. We also know that the jurisdiction of the European Court of Justice will be strictly time-limited to end in December 2020. What is less clear is how dispute resolution will be dealt with throughout the withdrawal, implementation and post-implementation period. I know the Minister had to face questions on this once already this week, from the EU Justice Sub-Committee, so I apologise for raising it with her again, but many of the questions will be similar to those she has already answered, and we will continue to ask those questions over the next few years until we have greater clarity on the position going forward.
When the Justice Committee undertook the inquiry, we did not have the benefit of either the future partnership paper or the draft withdrawal agreement, which have since been published. We heard from expert witnesses who indicated that the area of dispute resolution was complex and had not yet received much attention. As a consequence, what the Committee had to say on dispute resolution was very limited, because we did not have the information on which to make specific recommendations on what we would like to see in a dispute resolution mechanism. I am sure that, like me, my Committee colleagues welcome the various papers that have since been published and are grateful for the work that continues to be done on what the UK hopes to achieve in this area.
Article 160 of the draft withdrawal agreement makes it clear:
“The Union and the United Kingdom shall...make every attempt through cooperation and consultations to arrive at a mutually satisfactory resolution of any matter that might affect its operation.”
It is very hard to argue with that. Article 162 suggests the formation of a joint committee made up of representatives from the EU and the UK. My understanding is that the committee will supervise the implementation of the agreement and seek appropriate means to resolve disputes, which will not be by judicial process, but by arbitration.
We know that a joint committee is a common approach to international agreements. The future partnership paper says:
That is reassuring, in so far as there must therefore be working examples to look to and learn from. I would be interested to hear from the Minister whether any work has yet been carried out to examine the success of those other joint committees.
It is also not clear to me what will happen after the implementation period finishes. I accept that we are taking this one step at a time, but I think the Committee would welcome at least some understanding of what the Government hope for beyond 2020.
It is a pleasure to serve under your chairmanship, Ms Buck. As a former solicitor, I know only too well the vital services provided by the legal profession, not only to clients in the UK but across Europe and globally. Legal services are the largest market in the EU, due to the strength and stability of English and Welsh law, our independent courts and judiciary and the excellence of our legal service providers.
The contribution of the legal services sector to the UK economy was worth more than £26 billion, or 1.5% of the UK’s GDP, in 2017, so any impact of Brexit on legal services would have a knock-on effect on the UK economy. The sector employs more than 380,000 people and the latest statistics suggest that the legal services sector was responsible for a net export of more than £4 billion.
At the moment, European directives mean that lawyers and law firms are able to benefit from a simple, predictable and uniform system that allows them a temporary or permanent presence in other EU member states. UK lawyers are able to service the cross-border needs of businesses and individuals from both satellite offices in the EU and London offices, and 36 out of the 50 top UK law firms have at least one office in another EU or EEA state or in Switzerland. They have a presence in 26 of those 31 countries.
As lawyers from an EU member state, UK lawyers can appear before EU courts. If we were to lose those rights, UK lawyers would not be able to advise on areas such as competition, intellectual property or trade, due to restrictions on rights of audience at certain EU institutions, such as the Court of Justice of the European Union. Those are all currently lucrative practices for UK-qualified lawyers and bring business to UK law firms. Losing such business could be economically catastrophic for firms and for the UK economy.
Without a deal, the attractiveness of UK law and lawyers for multinational business will decrease, which will lead to an increase in costs for transactions involving UK lawyers and law firms. Even though the UK will remain an open market for global lawyers, having no partnership agreement could lead to restrictive regulations against leading law firms in the UK that want to provide services in the EU27. It is possible that 30 different regimes could impose restrictions and limitations on practice rights on UK lawyers and law firms. For example, subject to any potential visa requirements, French lawyers could be providing on-site legal advice to UK businesses, but the reverse would not be true.
Unless alternative arrangements are agreed, UK lawyers would lose the right to represent their clients before EU courts prior to the UK’s exit. They would no longer be authorised to carry out that work. Clients of UK lawyers would no longer automatically benefit from client-lawyer confidentiality, until an alternative is agreed, as the CJEU does not recognise the privileged nature of communications between a lawyer who is not qualified in the EU and a client. It is essential that the Government negotiate mutual access for lawyers to practise law and base themselves in the UK and the EU, and that should include rights of audience in EU courts and legal professional privilege at the EU Commission.
We know that the Government are seeking an agreement like the comprehensive economic and trade agreement, but CETA provides voluntary, not binding, guidelines for concluding mutual recognition agreements between professional bodies. As the Law Society has stated, a CETA-style agreement
“is essentially a ‘no deal’
outcome for the legal services sector...The CETA style agreement would lead to a lack of legal certainty which would affect business confidence and have a negative wider impact on the UK economy”.
We need to make sure that the UK is a global centre for legal services and that we promote it across Europe and internationally. I hope the Minister will address my points and the questions in the Committee’s report, in her reply.
It is a pleasure to serve under your chairmanship, Ms Buck, and to follow Bambos Charalambous. When it comes to the implications of Brexit, it is fair to say that the impact on the justice system is not always at the top of everyone’s list of priorities. It might even be thought of as a niche issue, but it is absolutely crucial. If I could do one thing today, it would be to emphasise that the justice system—the legal structures and arrangements that we have—underpin vital aspects of our democracy, the strength of our economy and the credibility of our institutions, including our own Parliament. It safeguards the rights of citizens and the balance of our constitution. When we discuss this issue, it is important to acknowledge that it resonates far more widely than might initially be perceived.
I will take a few moments to build on the remarks made by David Hanson, but will preface that with one point. One of the striking things in my experience on the Justice Committee is the extent to which it has been possible to act in a truly cross-party way, which is of itself an acknowledgment that these issues are not party political and have the wider impact that I referred to.
Before moving on to the issue of crime and security, I want to echo the remarks made by the Committee Chair, my hon. Friend Robert Neill, about interpretation of retained law. It is important to make the point that judges are rightly nervous about being dragged into the political arena. We take it for granted that judges interpret the law without fear or favour. Typically in this country, they do not get into the papers as they do in other countries, and that is exactly the way we want to keep it, but we must recognise the reality of the situation. If there is a case in which a judge of the Supreme Court decides to pray in aid European case law, that will be perceived to be a far more political decision than it would have been perceived previously. People will say, “That’s it. Here we go. These judges are intending to thwart the will of the people and keep us in the European Union via the back door.” I completely understand that judges are rightly wary of being perceived in that light. It is incumbent on the Government to give them all possible clarity and guidance so they can say, “This is a matter for Parliament. Parliament has given us this guidance. If you want it changed, speak to your MP.” That is appropriate and fair.
Many, including our Committee and the Bar Council, have called for crime and policing and the wider issue of the justice system to be given a separate negotiating track. Those issues are of such importance that, in the words of the Bar Council, they cannot be bargained away like a lamb quota. They are of such significance to our democracy and our economy that they ought to be given priority. The rule of law, access to justice and crime and policing measures are not trifling matters.
It is important to recognise that our Prime Minister, when she was Home Secretary, recognised the importance of the European arrest warrant. After all, in 2014, when she was Home Secretary, she exercised the UK’s right, which was secured at Lisbon in 2007, to leave and then rejoin selected justice and home affairs measures. She said that losing access
“would risk harmful individuals walking free and escaping justice, and would seriously harm the capability of our law enforcement agencies to keep the public safe”.
Although I entirely accept that the British Government’s intention is to replicate the EAW—I suspect the EU will want to do the same—complexities will arise. One very obvious example that people discuss is that many countries in the European Union have constitutional bars on extraditing their own citizens to non-EU countries. How will we deal with that? I am sure there is a way through it, but it must be discussed. The right hon. Member for Delyn ably made the point that we cannot leave that sort of thing to the last moment, because that will lead to criminals going free and justice being evaded.
Through the European Criminal Records Information Exchange System—ECRIS—the UK exchanges tens of thousands of pieces of information about criminal convictions each year. The second-generation Schengen Information System—SIS II—gives the UK real-time access to all European arrest warrants and other alerts on matters including missing persons. The point is that that has real-life implications. To give an example from September 2017—in fact, the Government’s own example—a prolific sex offender fled the UK on bail, was arrested in France after a road traffic collision, gave a fake name, but was arrested on a SIS II alert that had been entered by UK law enforcement. No wonder the National Crime Agency says that
“loss of access to SIS II would seriously inhibit the UK’s ability to identify and arrest people who pose a threat to public safety”.
It described it as a game-changer for UK law enforcement.
I am sure we will be able to negotiate an arrangement with SIS II but, lest we forget, it applies to only 26 EU member states and four non-EU Schengen countries—Switzerland, Norway, Liechtenstein and Iceland—all of which have different, separate and nuanced arrangements. It is not straightforward. Of course, the EU will need to be flexible here. If ever there were a requirement to think flexibly to make something work, this is it. The EU will need to take account of the UK’s historic role in setting up some of these arrangements, developing the databases, supporting them, and contributing enormously to that crucial information.
The big stumbling block that we will have to deal with is the issue of access to data—the so-called adequacy decision. Unless we can solve that and satisfy the European Union that we can have an arrangement that allows that data to be shared, that will be the pillar of the future arrangement. If that pillar is in place, we will have difficulties. Lest we forget, any arrangement we agree with the European Union could get referred to the European Court of Justice, which could strike it down. It is critical that we give this matter early attention. If we do not, there is a danger to justice and of criminals going free. That is why it must be given the most urgent priority.
It is a pleasure to contribute to this debate under your chairmanship, Ms Buck. I was a member of the Justice Committee when the report was produced in the previous Parliament. It is good to join my former colleagues and other hon. Members in this debate.
I want to concentrate on the implications for children mentioned in the Committee’s report. I have been speaking as often as I can about what Brexit will mean for our children. I tabled several amendments to the European Union (Withdrawal) Bill, and I would like to speak about some of the issues I raised then. They have also been raised extensively in the House of Lords, including by the noble Baroness Butler-Sloss and Baroness Tyler, and my noble Friends Baroness Sherlock and Baroness Massey, as recently as their debate on the Bill on
The concerns I want to speak about arise from two issues raised in the Select Committee’s report. The first, which has been discussed extensively this afternoon, relates to criminal law and the ability we enjoy now, under a range of European Union instruments, agencies and mechanisms—including Eurodac, the European arrest warrant, Eurojust, Schengen Information System II and so on—to pursue offenders and bring them to justice across the European Union. Those instruments have all been especially important in the protection of children, who face a rising risk of complex cross-border crime, such as trafficking, child sexual exploitation, grooming and online abuse.
We all agree that close co-operation on matters of criminal justice is the goal of not only the Government but the European Union, but we are no further forward in knowing how the Government intend to achieve that, and how they will maintain, adapt or replace our engagement with those institutions post Brexit. A further anxiety has arisen recently: Ministers have refused to incorporate the charter of fundamental rights into UK law in the European Union (Withdrawal) Bill or to recognise the jurisdiction of the Court of Justice of the EU after Brexit. The problem that that raises was highlighted recently by the case of O’Connor, referred by the Irish Supreme Court to the Court of Justice of the European Union on
The anxieties do not just relate to the criminal justice system. The Select Committee’s report deals in detail with family law, on which the position is equally uncertain and fraught with risk. Important provisions in the Brussels IIa regulation, which deals with divorce and with child residence and contact arrangements, including, very importantly, the issue of child abduction—the unlawful removal of a child from the care of the parent—and in the EU maintenance regulation of 2009 cover matters of jurisdiction of enforcement. They put in place a reciprocal system for mutual recognition of the decisions of each member state’s courts across the European Union.
Again, the Government say that they want a coherent set of common rules that will be clear about which country’s courts can hear a dispute, which country’s laws will apply to resolve it and how judgments should be recognised and enforced across borders after Brexit. However, in relation to family law the process of achieving that remains opaque. For a start, although I assume we will incorporate the provisions of Brussels IIa into UK law under the European Union (Withdrawal) Bill, thus obliging our courts to continue to apply the decisions of the courts of other EU countries, the reciprocal nature of Brussels II means that there will be nothing we can do once we leave the EU to force the courts of those countries to apply the decisions of our courts unless we can make alternative arrangements.
What is more, Brussels IIa is now being renegotiated—upgraded as it were, and indeed the UK Government have played an active role in those renegotiations—but the changes are unlikely to take effect before Brexit. If we incorporate the Brussels II rules into UK law under the withdrawal Bill, they will quickly, if not almost immediately, be superseded by that later legislation.
In their response to the Select Committee report, the Government acknowledge that we might have to fall back on the arrangements in the Hague and Lugano conventions. Everyone recognises, however, that those conventions are inferior in important respects to the more robust and speedier processes available under Brussels IIa—especially and troublingly in relation to child abduction—which the renegotiation seeks to strengthen further. As the Committee heard in our evidence sessions, the existence of Brussels IIa has meant that there has been less incentive to keep the Hague convention up to date, and because most lawyers have become accustomed to relying on Brussels IIa, there is a lack of experience in applying and using the provisions of the Hague convention.
Furthermore, if Ministers seek to rely on the Hague convention, it is still not clear to me whether the UK will have to ratify it in our own right after Brexit—we participate now by virtue of our European Union membership. Yet the requisite three months’ notice to do so means that time is pressing if we are not to be left with a gap in the more limited protections that the Hague convention can offer in relation to family law.
I know, as do all my colleagues, that the Minister is well aware of and concerned about both the complexity and the urgency of all these issues. I have to say, however, that the Government response to the Committee’s report is worryingly thin. I join colleagues throughout the House in pressing the Minister to update us on where the Government are with negotiations on Brussels IIa, the maintenance regulation, the Lugano convention and the Hague convention, including the possible Hague re-ratification. Also, what guarantees will she give the House that a seamless system of international judicial co-operation, mutual recognition, and criminal and civil justice measures will be in place, without gaps, to ensure the continuing and vital protection of children at the moment of our exit and in future? I look forward to her detailed response.
It is a pleasure to serve under your chairmanship, Ms Buck.
I pay tribute to the Select Committee and its Chair, Robert Neill, for their concise, clear and balanced report on how Brexit could impact on criminal and civil justice and the legal industry. I feel like an interloper at a Justice Committee club meeting today, so I shall start by trying to make friends, by congratulating everyone on their excellent speeches and saying that I agree with almost everything that has been said—indeed, I agree with almost everything in the report as well, including the four recommendations that David Hanson highlighted, so I will not repeat them.
Broadly speaking the Government, too, seem to agree with what we are all saying, so in one sense we are singing from the same hymn sheet, but the debate has provided an excellent opportunity to press them on what if any progress has been made in pursuing their goals and in overcoming the many obstacles highlighted in the report. As the Chair of the Committee said in opening the debate, good intentions are no longer enough. He called for urgency, which is exactly what the Select Committee on Home Affairs—where I feel slightly more at home—also called for in a recent report.
Kate Green rightly said that the issue is now not so much about the Government’s broad objectives as about the how, the when and the details, which need to concern us now. Before I go into that, however, Members have rightly flagged up a number of the benefits of EU systems and laws for justice in the United Kingdom, reflecting the point that we are debating, so I shall turn briefly to their contributions.
In the area of criminal justice, Alex Chalk and the hon. Member for Stretford and Urmston all highlighted a number of important EU schemes and agencies. First and foremost, the European arrest warrant, while not perfect, is definitely and significantly better than the alternatives. The hon. Member for Cheltenham explained one reason why that is the case, but there are others, and we have seen certain countries take a long time to negotiate and have access to alternatives.
We have also heard about Europol, the co-operation and data sharing that come with that institution, and how it has become critical to policing in the United Kingdom. Only last year membership of Europol proved pivotal in helping Police Scotland and the Romanian police to dismantle an organised crime network that was involved in the trafficking of victims for sexual exploitation. Day in, day out we hear a lot of other examples of that type of work being carried out with the help of Europol.
Eurojust brings clear benefits when it co-ordinates prosecutions where more than two countries are affected. We heard about the range of data sharing agreements such as ECRIS, SIS II and the Prüm treaty, which have brought huge benefits to our police forces. In the realm of civil justice, the hon. Member for Stretford and Urmston spoke expertly about the benefits of Brussels IIa, in particular in cases of child abduction. The Committee report, however, is balanced and not starry-eyed about such EU institutions, acknowledging that they are not perfect—for example, in divorce cases Brussels II seems to encourage a race to issue proceedings, therefore discouraging mediation.
The Committee Chair highlighted the benefit, albeit again not without flaws, of the maintenance regulation, to which there seems to be no obvious alternative after Brexit. Finally, on legal services, Bambos Charalambous highlighted, among other things, the huge importance of rules that allow for the free movement of lawyers and legal services, including mutual recognition of qualifications and practising rights. Members therefore rightly asked a huge number of questions to which it would be good to have answers from the Government.
In relation to criminal justice, everyone might agree on the importance of maintaining the “closest possible co-operation”, as the report says, but achieving that will be complicated. For example, on Europol, other third countries’ arrangements clearly do not bring them the same benefits as membership does for the UK. There have already been a number of Rob Wainwright quotes, and I will fling in a final one from before the Brexit referendum. He warned that leaving the EU meant that in essence the UK could become “a second-tier member” of the Europol club. We need to ask, what exactly are the Government seeking to achieve in negotiations? Norway and Iceland show that access—or even establishing similar arrangements—to the European arrest warrant and Prüm is not straightforward. What is Government’s thinking about how to replicate the mutual benefits of those schemes?
As the hon. Member for Cheltenham highlighted, it is increasingly apparent that the adequacy of our data protection regime will be pivotal. Standards will be applied more strictly and more broadly once we are outside the EU. There are concerns that the provisions of the Data Protection Bill could fall short—one area of concern is the sweeping immigration exemption. Similarly, the UK’s surveillance and interception regime will be exposed to a new level of scrutiny by EU institutions after exit. What work is ongoing to ensure that UK legislation and arrangements will survive such detailed scrutiny?
As other Members have said, the jurisdiction of the European Court of Justice is an issue that cuts across many of those subjects. My party has no problem with the European Court of Justice and its possible jurisdiction, but what I want from the Government is at least an assurance that ensuring that our citizens continue to benefit from EU justice measures far outweighs the strange obsession that some have about ending the Court’s jurisdiction. That is a red line that should be deleted, at least in so far as it comes to justice and home affairs issues.
I am grateful to the hon. Gentleman to drawing attention in more detail to the issue of the European Court of Justice. Particularly in relation to family matters, its oversight is inevitably confined, given the nature of the reciprocal arrangements, to matters of process rather than the substance of law. Does he not agree that the Government could perhaps be more relaxed about the Court’s continuing engagement in our law?
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?
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.
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.
It is a pleasure to serve under your chairmanship, Ms Buck. I thank the Chair of the Justice Committee, Robert Neill, and the other members of the Committee for their excellent report. I was a member of the Justice Committee from 2010 to 2015 and remember many such excellent reports.
The UK’s status as an international hub for legal and financial services and its attractiveness to businesses depend not only on access to the EU legal services market, but on its close and comprehensive cross-border and civil judicial co-operation. I will start by concentrating on three areas that most hon. Members have spoken about. First, in relation to civil justice, we are in a unique position where the judgments of our court are enforceable both in European Union member states and in many Commonwealth states. That is very important for the UK’s role as a hub for international litigation. Therefore, it is critical for British citizens, businesses and institutions that the Government maintain our position.
In civil and family law, European Union regulations provide certainty on what jurisdiction should hear disputes while allowing for the automatic recognition and enforcement of judgments throughout the EU. Does the Minister share our concern that cross-border divorce and child custody disputes could become much more difficult unless Britain can secure effective judicial co-operation arrangements with the European Union after Brexit?
Many hon. Members spoke about the criminal justice system. We must remember that crime, and especially more serious and organised crime, increasingly does not recognise national borders. Even the less serious crimes are increasingly likely to have a cross-border element. Foreign nationals who commit crime in the UK often flee abroad, and some crimes can be committed easily across national boundaries, such as child exploitation, fraud and identity theft. In the UK, there has been a massive increase in people trafficking offences. Police and the judicial authorities need to be able to co-operate internationally to combat crime and bring perpetrators to justice.
I hope the Minister agrees that co-operation through case-by-case contacts or even bilateral agreements is likely to be more cumbersome when we are out of the system, especially where several states are involved. Under our European Union framework, we have co-operated through mutual recognition of key elements of one another’s systems, with minimum standards applicable in all states for certain factors, together with mutual legal assistance measures that are understood and applied in all the member states.
As we withdraw from the European Union, can the Minister assure the House that her Government will secure the speedy arrests of suspects wanted by the British police with minimum bureaucracy via the use of the European arrest warrant? Does the Minister agree with the assessment of the EU Home Affairs Sub-Committee, which states:
“Any operational gap between the European Arrest Warrant ceasing to apply after Brexit and a suitable replacement coming into force would pose an unacceptable risk to the people of the UK”?
Given that it took Iceland and Norway 13 years to negotiate extradition agreements with the European Union, does the Minister believe that there will be a gap between the UK leaving the European arrest warrant and agreeing a replacement system?
What assessment has the Minister made of the impact on victims if there is no European arrest warrant agreement after the UK leaves the European Union? What are the Government’s proposals to deal with cross-border investigations into drug cartels, people trafficking networks and fraud? Will we be in a position to secure evidence from overseas using the mechanisms currently in use in the European Union? What mechanisms will be put in place so that we can rapidly access fingerprinting and other identification databases for overseas convictions, sentencing and other purposes, to which we currently have access? I am sure the Minister is aware of the growth in co-operation through Europol, Eurojust and the European Public Prosecutor, which has made it easier to deal with crime, especially when it crosses borders. What is the Government’s plan to replace those institutions or fill the gaps left by them?
The UK legal services market is worth £25.7 billion in total, employing 370,000 people and generating an estimated £3.3 billion of net export revenue in 2015. Central to that market is the ability of barristers, solicitors and other legal professionals to provide legal services in the EU. Equally as important, our exporters’ confidence in doing business abroad depends greatly on the ability of their lawyers to establish and provide services in the countries in which they seek to trade and invest. Numerous aspects of barristers’ and solicitors’ work will no longer be possible if we leave the European economic area, unless current cross-border rights are preserved.
Does the Minister agree that, in formulating their negotiating strategy, the Government should have regard to the nature of the legal work that comes to the UK as a consequence of the UK legal profession’s expertise, not least in European Union law? What measures are the Government taking to maintain cross-border legal practice rights and opportunities for the UK legal sector, given efforts by European Union law firms to use Brexit to win clients from UK competitors?
The European Union charter of fundamental rights sets out a range of civil, political and social rights enjoyed by European Union citizens. Why does this Government’s policy of incorporating EU law into UK law exclude the European Union charter of fundamental rights? Does the Minister agree that, in the light of everything said in the debate, there must be a continuing role for the European Court of Justice during this time?
Labour’s view is that, beyond a transitional phase, we would seek a shared court-like body to oversee disputes and enforce rights and protection. Obviously, the precise nature of this shared court is subject to negotiation. We are flexible about how that would be achieved. It is important that there is an independent court to oversee the close new agreement we reach with the EU. It is vital that that is done to ensure that individuals, institutions and countries can enforce and protect workplace rights, consumer rights, environmental rights and more.
I have been listening with great care to the hon. Lady’s speech and I very much welcome the approach that she has adopted. She talks about a future court to enforce these matters, for which I have much sympathy, but does her party rule out participation in the EFTA court as being a potential solution to the problem she rightly highlights?
I understand the hon. Gentleman’s question. Our position is that there should be a system. What that system entails and how it works is subject to negotiation, but we should have something that makes it easier to resolve issues.
In concluding, I want to summarise some of the things that hon. Members mentioned. My right hon. Friend David Hanson spoke about very important crime issues. My hon. Friend Bambos Charalambous talked about the legal services sector and how we are ahead in it. My hon. Friend Kate Green rightly spoke about the impact of our leaving the European Union on children and their rights. Alex Chalk made the interesting point that crime, civil justice, children’s rights and legal services should not be bargaining chips, but should be placed on a separate track and taken out of the contentious political debate. That would be a helpful way forward. Stuart C. McDonald rightly raised the impact on Scotland.
Everyone is aware that numerous treaties will have to be made to cover each and every area of law we have talked about. We will need not one set of treaties but treaties with 27 or 28 countries, with some opting in and some opting out. It will be a lengthy and complex process. I reiterate the questions asked earlier. How far have the Ministry of Justice and the Government got with drafting the relevant legislation and treaties? Which have been written and which have not? How are they progressing? When will they come to Parliament for debate? When will we be able to feel that these things will happen? Real issues have been raised, and many Members feel that, when we leave, we may be without the systems we currently have that make the criminal and civil justice systems much easier to deal with.
It is a pleasure to serve under your chairmanship, Ms Buck. I congratulate my hon. Friend Robert Neill on securing this debate—his second in two days—on a very important subject. I also thank him and his fellow Committee members, past and present, for their important report of March last year.
As a former barrister, I fully understand the importance of obtaining the right deal for the justice system as we leave the EU. My hon. Friend Alex Chalk made a powerful speech about the many reasons why our justice system is important, and I agree with him. The Government recognise the importance of the legal sector. I know that because the Prime Minister highlighted it earlier this month in her Mansion House speech. She not only referred specifically to the importance of civil judicial enforcement and the mutual recognition of qualifications, but identified a few areas where the UK and EU economies were linked, one of which was law.
Before I deal with the issues Members raised, let me show how the Government have listened to the important points made by the Justice Committee and others. In its report, the Committee stated that we need certainty during any implementation period and that we must recognise the importance of criminal justice, and of mutual recognition and enforcement. It also highlighted the role of legal services. All those points have been and continue to be listened to. On implementation, the Committee stated that it was concerned that we would move to an inferior type of arrangement for a transitional period, and that it wanted to remove the risk of uncertainty. I hope the Committee is pleased that, in the implementation period, we will ensure that we have the same common rules so that our laws remain in place. There will be no inferior relationship in that period.
The Committee stated that we should prioritise EU-UK co-operation on criminal justice and that that serious matter should be negotiated separately. My hon. Friend the Member for Bromley and Chislehurst rightly identified that the Prime Minister has recognised the importance of this area, as she did when she was Home Secretary. She said in her Munich speech that we are “unconditionally committed to maintaining” Europe’s security now and after our withdrawal from the EU because “our first duty” as a nation is “to protect our citizens”.
On commercial law, the Committee outlined that the Rome I and Rome II regulations on applicable law rules do not require reciprocity and could be incorporated into domestic law. That is precisely what the Government are doing under the repeal Bill. The Committee asked us to ensure that maintaining the UK as a first-class commercial law centre is a top priority. It asked us to protect choice of law, and mutual recognition and enforcement. It stated that we should replicate the recast Brussels regulation and remain a party to the Lugano convention and The Hague convention. The Committee knows those are our ambitions, which we highlighted in our future partnership paper, along with the close relationship we want. We very much hope that we will ensure mutual recognition and enforcement in our separation agreement for cases started before Brexit.
Members will have noted in the Prime Minister’s recent Mansion House speech her desire to reach agreement on civil judicial co-operation. She referenced Lugano, company law and intellectual property law, and stressed the need for legal certainty and coherence. We seek to continue our participation in The Hague convention and the Lugano convention.
I welcome the Minister’s assurance that that is the Government’s intention. I think everyone regards that as essential. On the urgency of getting agreement and specificity, is she aware of the recent survey by the international law firm Simmons and Simmons of its clients in Germany, France, Italy, Spain and the Netherlands about the approach that will be taken to important English jurisdiction clauses in commercial contracts post Brexit? So much litigation takes place in the UK because contracts have clauses specifying English jurisdiction. Some 50% of those clients will move away from English law unless there is certainty soon. Good intentions are not enough. We need answers very soon.
I very much understand the need for certainty and the importance of those clauses in contracts. There should be a level of legal certainty, because those contracts will be respected in the implementation period. Furthermore, as was stated—I cannot remember by whom—we can sign up to The Hague convention unilaterally. As my hon. Friend the Member for Cheltenham said in yesterday’s debate, that convention is not the gold standard, because certain types of jurisdiction clauses are not included. However, many are, and it should give business a level of certainty.
The Committee also referred to legal services. It is important that we recognise the value of that sector to jobs and our economy, and the fact that it underpins our financial services sector. Bambos Charalambous identified many important points about the mutual recognition of qualifications. The Prime Minister has recognised that, too.
“it would make sense to continue to recognise each other’s qualifications in the future.”
That has been specifically recognised in relation to our agreement on citizens’ rights. Those citizens who remain have every right to continue to practise as they do at the moment.
My hon. Friend the Member for Bromley and Chislehurst rightly identified that the European Parliament might say that what we are putting forward is unachievable. In any negotiation, I would not expect the other party and those who will be confirming the agreement to lie down and say they accept everything the UK puts forward. We must remember that it is a negotiation.
My hon. Friend mentioned competition from other jurisdictions and the Paris court. That is an important point, but we must remember that the UK is expanding its judicial offering. We have interests in Europe and in Britain as part of the EU, but recently we have also seen judicial co-operation and members of the Bar helping to establish courts in Dubai, Qatar and Kazakhstan. We can continue to thrive in those centres outside the EU.
My hon. Friend made an important point about feeding into DExEU. He can be assured that our negotiators at the Ministry of Justice are party to the teams, negotiating alongside DExEU in matters that affect justice. He should also be assured that we are discussing these important issues at ministerial level—I have had discussions with my counterpart in DExEU.
In relation to clause 6 of the European Union (Withdrawal) Bill, Lord Keen, who took the debate in the House of Lords, said clearly that the Government have heard the views expressed by Members of the House of Lords, and that we will return to that point.
David Hanson, Yasmin Qureshi and my hon. Friend the Member for Cheltenham made important points on cross-border security, including that, as a matter of principle, crime does not respect borders, and that many measures, including the European arrest warrant, are critical to our security. I was asked for a timetable. First, we were agreeing separation—budget and citizens’ rights—and have done so. Secondly, we were to agree an implantation period, and we have done that. We are now turning to the matters of the future partnership deal and security.
We want an ambitious deal. There are many examples of international agreements between Europol and other third countries, such as the US, but like both the right hon. Member for Delyn and my hon. Friend the Member for Cheltenham, I believe these matters will be solved because it is in the interests not just of us and our citizens but of other citizens.
We would all be interested to know whether those matters will be considered at the outset, potentially separately from other matters, or whether they will be thrown into the mix as something potentially to be bargained away.
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 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.
I expect that the deal, of which that will form part, will be put to Parliament.
My hon. Friend 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.
My hon. and learned Friend is being generous with her time. The reality, however, is that looking to the High Court of Australia for interpretive guidance is entirely different from looking to the European Court of Justice in the post-Brexit context. One is not political and the other potentially is. The court of public opinion is a concern. That distinction must be taken into account.
I understand the point, which my hon. Friend makes articulately. He is right that judges need guidance, and as I said the Government are looking at clause 6 as the Bill goes through the House.
My hon. Friend asked whether justice should be considered separately. The chairman of the Bar Council raised that point with me and with the Secretary of State. I understand and agree on the importance of the justice deal, which he reiterated throughout his speech.
Kate Green made an important point about children. I hope she will be pleased that, in the European Council guidelines on
I am grateful to all Members who participated in the debate. These are important issues, which I hope we have been able to raise and stress their urgency to Government. I am grateful to the Minister for her response, which was as comprehensive and elegantly put as ever. I appreciate that she is well seized of these issues. It is important that we continue to have such debates to keep them to the fore.
[Sir Graham Brady in the Chair]
I am sure we all want the Prime Minister to succeed in her objectives, and for my hon. and learned Friend the Minister and her colleagues to be able to assist the Prime Minister in achieving them. That will happen only if we continually make the case. As my hon. Friend Alex Chalk rightly said, it may sometimes be seen as a niche topic, but it is fundamental. Without legal certainty, no international commercial arrangements can work. Without legal certainty, no form of justice or security co-operation can ultimately be underpinned. It is not a peripheral matter, which is why a separate track has been suggested to give it the prominence it needs.
I appreciate the point made about the same-state transition secured by the Prime Minister. That period is important. I accept that that gives certainty, but it takes us only up to the end of 2020 and, to give just one example, large-scale commercial litigation often takes more than two years, as the Minister will well know. It is therefore not a long period in those terms. We must bear that in mind—that is why it is so urgent.
I am delighted to see you in the Chair for the end of the debate, Sir Graham. I am sorry that you missed the advocacy fest that went before. I am grateful to all Members for their participation and I am sure we will seek to return to this matter.
I will look forward to reading the proceedings in Hansard.
Question put and agreed to.
That this House
has considered the Ninth Report of the Justice Committee, Session 2016-17, Implications of Brexit for the justice system, HC 750, and the Government response, HC 651.