House of Commons
Tuesday 12 March 2019
The House met at half-past Eleven o’clock
[Mr Speaker in the Chair]
Oral Answers to Questions
The Secretary of State was asked—
Victims Giving Evidence
The hon. Lady has done so much on this issue and on campaigning for victims more widely. While a range of special measures already exist, we can and will do more. As she will recall, last September we published the victims strategy, which sets out the steps to support victims of crime further, including in court, and those steps have recently been added to with our commitments in the draft Domestic Abuse Bill.
I thank the Minister for his answer. Adult survivors of child sexual abuse often wait decades to see their abuser face justice. While survivors are often key witnesses, there is no statutory duty for them to get paid leave. I have met many survivors who have to take unpaid leave or holiday, but cases could unravel without their attendance. Once again, victims are being penalised for the abuse that they have suffered, so will the Minister review the matter and ensure that no victim experiences a financial loss for getting justice?
I mentioned the hon. Lady’s work campaigning for victims, and she is particularly active in campaigning for the rights of those who have suffered child sexual abuse. She makes an interesting point, and I would be happy, as always, to meet her to go into it in more detail.
Victims want criminals to face the full justice of the law and to be sure that the punishment fits the crime. What are we doing to ensure that, once sentenced, criminals serve their time in jail in full?
My hon. Friend makes an important point. Victims expect justice to be done, and when someone is convicted of a crime and sentenced, they expect them to serve that sentence. Of course, sentencing is a matter for the independent judiciary, and we have complete confidence in its approach.
Is the Minister aware that it is not only victims who are affected, but everyone else? A member of my family has just done jury service, and she was amazed by the inefficiency and poor quality of management in the court process, which wastes the time of those on jury service and is wrong for victims. It is wrong for everyone, because it is a badly managed process. Let us get more money for the Ministry of Justice so that it can do things properly.
The hon. Gentleman makes his point powerfully, as always. We have undertaken a number of reforms of the court system and the criminal justice process, and he will have seen in the victims strategy our clear commitment to improve each stage of the process for victims and witnesses. The Under-Secretary of State for Justice, my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer), has been doing a lot of work to ensure that cases run more smoothly, with fewer adjournments, so that victims and witnesses know that when they come to court they have a high chance of actually being heard on the day on which they expect to be.
I welcomed the publication of the victims strategy back in September but, as my hon. Friend will know, giving evidence is one of the most stressful parts of seeking justice for any victim of crime. Will he reassure me that he will also be working with people such as police and crime commissioners to ensure that there is no patchwork quilt of support for victims across the country?
My hon. Friend is consistent in speaking up for victims’ rights, and I believe that his county’s police and crime commissioner has spoken about such rights more broadly. He is right that the victims strategy seeks to adopt an approach that will give a more consistent level of support across the country.
I welcomed last week’s announcement of an end-to-end review of how rape and sexual violence cases are handled across the criminal justice system. Am I right in my understanding that the review will also consider the effect of rape myths on juries?
The hon. Lady highlights an issue that the House has quite rightly debated on several occasions. I hope that all such relevant considerations will be examined in the end-to-end review.
Back in October, I raised with the Under-Secretary of State, the hon. and learned Member for South East Cambridgeshire (Lucy Frazer), the case of a Nottinghamshire woman whose husband, despite being convicted of her attempted murder, is able to continue a cycle of abuse through the courts by claiming entitlement to their financial assets, including her home. The Minister offered to look into my suggestion of a change in the law that would ensure no financial entitlement to spousal assets following attempted murder, and to provide me with an update. Five months later, can we now have that update?
I am grateful to the shadow Minister for once again highlighting an important and distressing situation. I am reassured that my hon. and learned Friend the Under-Secretary of State continues to look carefully at the matter. I appreciate that the shadow Minister will want rapid progress, but it is important that we get this right, so my hon. and learned Friend is examining the issue and will report back in due course.
We have been clear that probation needs to improve, and we have taken decisive action to end current community rehabilitation company contracts and develop more robust arrangements to protect the public and tackle reoffending. I am determined to learn lessons from the first generation of contracts in developing future arrangements. I believe that public, private and voluntary providers all have a role to play. We want to improve integration under new arrangements so that providers are able to work together effectively to protect the public and tackle reoffending.
The recently published National Audit Office report on probation services highlighted not only the staggering additional costs of privatisation but the fact that CRCs are failing to provide even the most basic rehabilitation services. With nearly £0.5 billion-worth of bail-outs and only six out of 21 CRCs achieving significant reductions in reoffending, is it not now time to put probation back where it belongs, under public ownership and control?
The hon. Lady talks about costs and bail-outs. We have to remember that we are spending considerably less on CRCs than was anticipated when the contracts were entered into—some £700 million less—but it is right that we learn the lessons from the first generation of contracts. I am not satisfied with where we are, and the NAO has raised its concerns. We have also heard concerns from the inspectorate of probation, and we need to learn the lessons. It is important that this continues to be a mixed market. There is a place for the private sector and the voluntary sector, as well as for the public sector, in probation.
As the Secretary of State knows, the Select Committee on Justice has looked into this area in some depth. Would he agree that the most important issue is not the ownership of the contracts or who provides this service but ensuring that there is no fragmentation of the service, which is a risk? There should be a proper join-up between leaving prison and going out into the world of freedom.
These are important points, and the debate can sometimes be a little simplistic, whether it is “public sector good, private sector bad” or vice versa. A lot of this is about integration and making services hang together. One of the things we did last year was to announce additional money for through-the-gate services, which is important, but a lesson from what has happened in the past is that we need to make sure the system hangs together more, which it has not been doing sufficiently.
Before wreaking havoc in the Department for Transport, the Secretary of State for Transport was busy wreaking havoc in our justice system. He unleashed a crisis in our prisons and then he privatised probation, leaving the public less safe and costing the public hundreds of millions more than necessary. The world’s media are treating the Transport Secretary as a laughing stock, but the joke is on us because this Government are set to repeat past errors by signing a new round of private probation contracts. When will the Justice Secretary do the decent thing and put an end to the failed experiment of a privatised probation system?
The hon. Gentleman takes a somewhat simplistic view. His approach appears to be that he wants all probation services to be nationalised and every offender intervention to be done by the public sector. I think there is an opportunity to make use of both the private sector and the voluntary sector. If he takes the approach he appears to advocate of closing off any activity performed by anybody other than the public sector, we will not get the best probation service we could have.
PAVA Pepper Spray
The hon. Lady and I have sat down and discussed this matter with the unions. We are determined to make sure that we have safe and appropriate ways to protect prison officers, which is why we have piloted PAVA at four sites, two of which I have now visited. We are currently completing an equalities assessment, and we should be in a position to begin the full roll-out in April.
I thank the Minister for that answer, which is good news. I hope he will keep in mind that a significant proportion of prisoners expressed the view that PAVA is necessary, so I hope he will give me a guarantee that he will stick to his word and that this vital protective equipment will be rolled out soon in the spring.
Absolutely. As the hon. Lady will bear in mind, we have to be thoughtful about how we use this spray. It is there to deal with issues of extreme violence. This type of pepper spray is a new measure, and we have to be particularly clear when we use it against people with protected characteristics, which is why we are conducting the assessment. I believe that once we have conducted it, this will mean less extreme violence in prisons.
In the past 12 months, there were more than 10,000 assaults on staff in our prison service, which is more than one every hour and represents a 30% increase year on year. Clearly that is unacceptable, and it is having a deterrent effect on the recruitment of prison officers, who are so important in keeping prisoners and other staff safe. How is the Department doing on the recruitment of additional staff to make up for the 7,000 who have been lost?
The answer is that recruitment has gone quite well. We now have 4,700 additional officers; we have more than we have had at any time since March 2012, so we are at the highest level for seven years.
Taking into account the fact that prison officers are allowed to claim for compensation for only three attacks throughout their career, will the Minister outline his opinion on the abuse that prison officers are expected to take as part of their jobs, which would be unacceptable in any other job?
The important thing is to begin by paying a huge tribute to prison officers, who are doing an incredibly important job. They are probably one of the most important operational bits of any public service, and we owe them a huge duty of care. We have to make sure that the drugs and weapons do not get in. We have doubled the sentence for people assaulting prison officers, and I am happy to sit down with the hon. Gentleman to talk about this in more detail.
European Convention on Human Rights
My right hon. Friend the Secretary of State has regular meetings with Cabinet colleagues relating to the UK’s exit from the EU and issues such as our approach to human rights and the ECHR. The UK is committed to membership of the ECHR, as my right hon. Friend has previously set out, and we will remain a party to it after we have left the EU.
In a letter written last year, the Minister implied that the Human Rights Act would come under threat post-Brexit. He said that
“our manifesto committed to not repealing or replacing the Human Rights Act while the process of Brexit is underway. It is right that we wait until the process of leaving the EU concludes before considering the matter further.”
So, for the avoidance of doubt, will he rule this out today?
This country has a long tradition, which long predates the ECHR or the EU, of championing and setting the highest standards on human rights. The Human Rights Act 1998 reflects that and gives further effect to the ECHR in our domestic law, and we are not considering amending or repealing it.
Despite the Prime Minister’s previous wish for the UK to leave the ECHR, the Brexit White Paper committed to membership of the convention. However, the political declaration talks only of respecting the ECHR, so can the Minister explain the change of language and clarify whether the Government plan to repeal or protect the Human Rights Act after Brexit?
I do not accept that our position on the ECHR is ambiguous. Both the political declaration and the White Paper make it clear that our future relationship with the EU should be underpinned by our shared values of respect for human rights and fundamental freedoms, and this includes our ongoing commitment to the ECHR. As I have just made clear, the HRA gives further effect to the ECHR in our domestic law, and we are not considering amending or repealing it.
Human rights are, of course, not a reserved matter, and the Scottish Government have an advisory group on human rights in relation to devolved matters. Will the Minister commit to full consultation with the Scottish Government about his future plans for human rights protection across the United Kingdom?
I am grateful to the hon. and learned Lady, as ever, for her question. We work closely with the Scottish Government. I am always willing to listen and speak to them, and I will continue to do so.
The Scottish Government’s advisory group on human rights reported in detail on 10 December, setting out three guiding principles for Scotland’s approach to human rights:
“non-regression from the rights currently guaranteed by membership of the European Union; keeping pace with future rights developments within the European Union; and continuing to demonstrate leadership in human rights.”
Can the UK Government commit to each of those principles for the whole of the UK? If not, why not?
The hon. and learned Lady will correct me if I am wrong, but I believe Professor Miller chairs that advisory group. We debated this issue in Westminster Hall some weeks ago and I read his report with interest. We note with interest the measures being considered by the Scottish Government to enhance human rights in Scotland, and the principles and seven recommendations set out in that report. Of course, Scotland’s legal system is separate and distinct from that of England and Wales, but I am considering that report, and others, with great care.
Female Genital Mutilation: Prosecution
Last night, the House unanimously passed legislation to further protect women and girls from the horrific crime of FGM, and I am pleased that my hon. Friend the Member for Mid Faversham and Kent served on the Bill Committee that was part of the passage of that legislation through the House. My hon. Friend asked particularly about improving prosecution rates, and I am pleased to tell her that each CPS area now has a lead FGM prosecutor. Those prosecutors will be working with their local police forces on arrangements for the investigation and prosecution of FGM offences.
The voice of Faversham and Mid Kent, rather than of Mid Faversham and Kent; I call Helen Whately.
I thank my hon. and learned Friend the Minister for her support for the FGM Bill that was passed last night and for her work in this policy area. As she knows, as many as 137,000 women and girls in the UK have suffered from FGM. I urge her to take further action to make sure that we end FGM in the UK.
My hon. Friend is not only a constituency MP in Faversham and Kent but the Conservative party vice-chair for women. She makes a really important point about the number of women who have suffered from this crime in the UK, pointing out that 137,000 women living in the UK right now are suffering the consequences of FGM. Some of those women had the crime inflicted on them here, while others had it inflicted on them in other countries, so our response needs to be two-pronged. First, we need to ensure that we support other countries, which the Department for International Development is doing—it recently made the largest single donation of £50 million to help countries overseas. Secondly, we need to tackle it in this country. We are taking a cross-governmental view, with many Departments taking action, from the Department for Education to the Home Office to the Department of Health and Social Care, and of course my Department is enacting legislation.
In general terms, when it comes to domestic abuse and so forth, cases take far too long. What is the Minister doing about that?
The hon. Gentleman makes an important point about the importance of all cases that come to court. Obviously, for those who have been the victim of horrific sexual crimes, including domestic violence, we are committed to ensuring that those crimes come to court and are dealt with swiftly. There are a number of ways to do that, including by using judicial resource. We recently saw a significant increase in the number of hours allocated to judicial sittings in the family court. Listing is a judicial matter, but in some courts those trials are fixed for particular days, whereas other cases float and and may come on that day or be adjourned to a later date.
We pay, both directly as the Ministry of Justice and indirectly through our suppliers, the national living wage in line with legislation.
I thank the Minister for his answer. I hope he is aware that I have previously raised in the House the problems relating to procurement and ensuring that every subcontractor adheres to the same rules as the people directly employed by the Department. Will the Minister ensure that subcontractors also pay all their staff the real living wage?
The point, which is an important one, is that we have to ensure that our subcontractors follow exactly the same rules as Ministry of Justice direct employees. We insist that the national living wage should be paid both to Ministry of Justice employees and to our subcontractors.
Cleaners and security staff at court buildings up and down the country are currently in dispute with outsourcers Mitie and G4S over poverty pay and draconian terms and conditions. The Minister can try to wash his hands of this mess and blame his predecessor’s appalling contracts—he is now wreaking havoc with the Brexit ferries—but when is he himself going to intervene to demand that, under new planned contracts, the hard-working staff who clean and protect his Department’s buildings are paid the real living wage and not exploited by their unscrupulous employers?
I take this opportunity to pay tribute to those staff—the people who maintain the courts and the people who provide the security—who do a very important job. We are absolutely clear that this is a Government policy across the board and that everybody, regardless of whether they are in the private sector or the public sector, is obliged to pay the national living wage.
Prison Estate: Reducing Costs
Although our real-terms spending on the prison estate has increased, we continue to drive efficiencies through to make sure that we can put as much money as possible into keeping our prisons safe, decent and secure. The best way of driving down costs is through technology, particularly video conferencing, which reduces the costs involved in moving people to and from courts; facial recognition technology, which has begun to deal with queues in visitor areas; and kiosks, which are overcoming some of the challenges around logistics supply.
I thank the Minister for that considered answer, but may I ask him to assure me and the House that, in his efforts to reduce the cost of the estate on the taxpayer, he will not scrap short sentences, given that 4,300 knife-wielding criminals last year would have remained on our streets?
First, I make it absolutely clear that no decision on sentencing policy will be driven by anything other than public protection. That is the key in any sentencing decision. Secondly, I make it absolutely clear that we are fully behind the Home Secretary and the work that is being done on knife crime and we want to make sure that judges have the full powers at their disposal to deal with people who are wielding knives.
Will the Minister confirm to the House that he will not go cold on the Justice Secretary’s pledge to reduce short sentences? Short sentences and removing people from prison who will reoffend if they go to prison are the surest way to save money and to stop reoffending in the long term.
As the right hon. Gentleman is aware, this is something that we are continuing to look at very carefully and we are continuing to learn both from what has happened in Scotland and the evidence that suggests, on the basis of a study of 130 different characteristics in 300,000 separate offenders, that people are more likely to reoffend with a short custodial sentence and therefore that tens of thousands more crimes are committed every year by the wrong use of a custodial sentence.
In seeking to reduce costs, will the Minister give a pledge not to cut corners? He is seeking to build a new prison in my constituency at Full Sutton, but the traffic assessment that has taken place is, I believe, deeply flawed. Will he look at that again? Even if it means extra cost, if he deems it is warranted, will he order a new traffic assessment please?
I absolutely undertake to look again at the traffic assessment and to sit down with my right hon. Friend to examine it in more detail together.
Previous cost cutting in the Prison Service such as reducing staff has proved to be a false economy. In Nottingham Prison, the prisons Minister has needed a surge of staff to try to stabilise what had become a very violent and dangerous prison. Can I have an assurance from him that, once things improve at Nottingham, those staff will not be withdrawn again?
Some of the staff at Nottingham, to which the hon. Gentleman is referring, have come from other establishments in other parts of the country, but when they return they will be replaced because we must ensure that Nottingham is fully staffed. That is essential particularly in order to continue with delivery of the key worker programmes so that each prison officer can be paired with six prisoners. That will be vital to getting violence under control in Nottingham.
Leaving the EU: Departmental Priorities
My Department continues to ensure that the necessary preparations are in place to mitigate potential impacts associated with leaving the EU wherever possible. For all scenarios, these preparations remain on track. In a no-deal scenario, we do not expect any immediate impacts on our departmental priorities, although there are risks in terms of pressures on the courts. We will react to longer-term impacts that are harder to predict, such as financial impacts, should they arise.
In recent years, 15 German nationals have been extradited from Germany to the United Kingdom, including for some very serious offences, but last month that country made it clear that it will no longer extradite its citizens to the UK after Brexit. What other countries does the Secretary of State anticipate will take a similar approach, and what, if anything, can he do to respond to this massive Brexit headache?
In terms of the European arrest warrant, we have to accept that as a consequence of Brexit the current arrangements will no longer be available, but we will continue to work very closely with EU member states to ensure that we can address this matter as effectively as we can.
Last week, I met the area commander in Glasgow East, and it was clear that the police are having to focus on Brexit preparations, yet that is not what people in my constituency actually want them to be focusing on—they want them to be focused on catching criminals in the street. If we do not have access to the European arrest warrant, it will not matter that all these contingency plans are in place. The only people who are going to benefit from that are those who seek to evade justice.
As I say, largely because of the constitutional issues with Germany, there are issues with the European arrest warrant; I absolutely accept that. We will take every measure that we can to ensure that authorities can co-operate. With regard to security issues, leaving the European Union with a deal is much better than leaving without a deal, and therefore the House should support the deal this evening.
The Tories’ disastrous handling of Brexit poses a serious threat to our economy and to our rights, and a real threat to our justice and security too. Any loss of access to the European arrest warrant or to European criminal records databases would damage our justice system, yet we have nothing but warm words from the Government on future justice co-operation. I was recently in Brussels discussing this with European partners, and it is obvious that the Government have failed to give this matter the priority it so urgently deserves. So what guarantees can the Secretary of State give today that his Government’s approach to Brexit will not leave our citizens less safe and will not let criminals off the hook?
If the hon. Gentleman cares about criminal justice co-operation, as I am sure he does—I certainly do—then there is a course of action available to him later today to ensure that we can have further criminal justice co-operation, and that is voting for the Government’s deal.
Violence in Prisons
In order to tackle violence in prisons, we first have to make sure that drugs and weapons are not getting into prisons. We need more prison officers, which is why we are pleased that we now have 4,700 more prison officers in place. We also need to invest much more in staff training and support. In the end, the key to reducing violence is good relationships between prison officers and prisoners.
I thank my hon. Friend for that answer. Clearly, preventing violence in prisons is a priority, so, to that end, will he update us on what plans he has to increase searches of cells and wings?
This is absolutely central. Getting on top of cell searching—making sure that we understand what is in a cell, what should not be in a cell, getting the mobile phones and getting the drugs—is vital to having the baseline for a safe prison, so we are investing in more dog teams, in more mobile phone detection equipment and in dedicated search teams across the estate.
In the past eight years 7,000 prison officers have been lost. That means that there is still a deficit, on the Minister’s own figures, of 2,300, with attacks on officers going through the roof. At what point will the number of officers rise to the level where safety is assured?
We believe that the current number of 4,700 is the appropriate number that we require—in particular, because it allows us to deliver the key worker system. We continue to use operational support grade staff on perimeter security. We think this is the right balance.
In order to better support our prison officers, I have suggested that anybody who is found guilty of assaulting a prison officer should lose their right to automatic early release from prison. Will the Minister take on board that suggestion?
We believe that the appropriate response to someone assaulting a prison officer is to work with the Crown Prosecution Service and the police to prosecute them. That is why we are pleased that we have doubled the maximum sentence for anyone assaulting a prison officer, and we are working much more closely to increase the number of prosecutions and the sentences for those who break the law against people we should protect.
I spent yesterday on D and F wings in HM Prison Swansea, and I was told time and again, including by the dedicated search team, that the prison desperately needs a body scanner to reduce the incidence of drugs arriving there. What are the Minister’s plans to roll out body scanners to the entire prison estate?
Body scanners can be very useful, particularly in local prisons where prisoners are coming in and out a great deal. They are very expensive bits of kit to not only install but manage, and they have medical implications; they can be used safely perhaps 50 times in a year. We are conducting a pilot with 14 X-ray scanners across the estate. Once we have looked at the evidence and convinced ourselves that that is the best way of doing it, we will move forward and prioritise local prisons in that roll-out.
Inexperienced prison officers, poor conditions and more time being spent in cells contribute to violence in prisons. What steps are being taken to address those factors?
In terms of inexperienced prison officers, it is about longer training courses and better mentoring on the wings, with band 4 officers in particular working day in, day out with new staff. In terms of time out of cells, this is why having 4,700 more staff is really important—it allows us to unlock people more and get back to a regime that allows people to get into education and work and protects the public.
The point that the Minister conveniently misses is that frontline prison officer resignations have more than tripled since 2010, and now one in three officers has less than two years’ experience, as the Minister fails to get a grip on a retention crisis caused by years of relentless cuts. Does he really think that this exodus of experienced staff will keep prisons safe, as assaults and violence rise to record levels?
There are two separate things here. The shadow Minister is correct that experienced staff are vital, but it is also worth bearing in mind that one reason why there are so many new staff is that we have recruited 4,700 additional officers; by definition, many of them will be new. Retention is vital. The development of the advanced prison officer grade, which allows experienced closed grade officers to move from band 3 to band 4, will be very important in stabilising prisons.
Transforming Rehabilitation opened up probation to a diverse range of providers and extended support and supervision to an additional 40,000 offenders leaving prison. The National Probation Service is performing well in supervising higher-risk offenders, but we have been clear that the performance of community rehabilitation companies needs to improve. That is why we have taken action to end contracts early and conducted a public consultation on proposals to better integrate probation services. We are reflecting on the feedback received and lessons learned from current contracts as we develop future arrangements, and we will announce our plans in detail later this year.
My constituent Nicholas Churton was murdered by an offender who was on licence. Following his release from prison, an assessment was not carried out by the CRC, and the murderer committed two further offences before he went on to kill Mr Churton. All this information is in the public domain because I have put it there. I want there to be an independent inquiry into this case, to inform Justice Ministers, all of whom I respect, to ensure that the probation service is functioning and to prevent people from suffering in the way that my constituent’s family have because of the appalling current system.
The hon. Gentleman raises a very important matter. I would like to express my sympathies to his constituent’s family for what they have undergone. I know that the hon. Gentleman has met my hon. Friend the prisons Minister to discuss this, and they may meet again. These tragic cases are rare, but that does not in any way undermine how tragic they are. Because there is a greater workload, with a greater number of people dealt with by CRCs than before, we have seen some increase in the numbers, but the rate falls below 0.5%.
Last week, the prisons Minister offered to meet the family of Sam Cook, who was murdered by a convicted offender who was released on licence, in a similar case to the one we have just heard about from my hon. Friend the Member for Wrexham (Ian C. Lucas). They would very much like to meet the Minister. Can the Secretary of State ask his officials to arrange that meeting as soon as possible? They want to speak to the Minister to make sure that no one has to experience what Sam Cook experienced and that the probation service is doing its job to protect the public from offenders who are released on licence and is supervising them properly.
I know that the prisons Minister would be very willing to have that meeting, but I make the point to both hon. Gentlemen that we want to get this right, we do recognise that we need to reform the probation system and that that is exactly what we intend to do.
Access to Justice
I am very pleased to have an opportunity to highlight the important work that we are doing in the criminal justice system. Last year, we spent £882 million on criminal legal aid and this year we announced an investment of a further £23 million for criminal advocates. We are spending £1 billion to transform our Courts and Tribunals Service. However, improvements to the criminal justice system, as with the civil justice system, are not just about money and we are seeking to bring our justice system up to date, modernising it and making sure that people have swift and effective access to justice.
The Loughborough University report “Priced out of Justice?” identified how many people were excluded from justice because of the means test. I welcome the review of the means test that the Government are conducting but, pending the outcome, would the Minister support calls from the Law Society for the means test threshold to be uprated now as part of the spring statement?
As the right hon. Gentleman said, we have recently done a legal aid review. As part of that review, we were not obliged to look into thresholds because there were not very many changes to thresholds as part of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. However, we recognise the need to look at that because the figures have not been uprated for some time. We are undertaking that review and the timetable for that is set out in our legal support action plan.
A recent report from Women’s Aid has set out that many women are now having to represent themselves because they do not meet the threshold for legal aid. But the report also says that the only savings the women have cannot be used because they have to be able to rehouse themselves. Can the Minister give some assurance that she is willing to look at improving the situation of these individuals, so that they do not have to represent themselves in court, which can have a hugely negative impact on the victim’s experience within the justice system?
I am fully aware of the issues that these women face. I am very pleased to have held a number of roundtables, as part of our understanding for the review, with a number of vulnerable parties, including women. Women’s Aid was part of those roundtables, where we had an opportunity to hear from it directly. That is one of the reasons why we have specifically mentioned victims of domestic violence, and we will look at the thresholds in the legal aid review that we are conducting.
Prison Officer Safety
We are doing everything we can to protect prison officers. That is about perimeter security to make it more difficult to get the drugs and weapons into the prisons, making sure that prison officers have the protective equipment to protect themselves against attack, gathering the forensic evidence when an attack takes place, and prosecuting prisoners who attack prison officers. We have a huge duty and we will do everything we can to protect them.
I thank my hon. Friend for that good answer. The hard-working staff at HMP Lancaster Farms are doing a very good job in this respect and I invite my hon. Friend to come to Lancaster Farms whenever he can.
Lancaster Farms is a cat C training prison. It is a challenging prison and we are very pleased with the recent inspection report that we have received from Peter Clarke. He is a tough critic, but he sees it as a decent and competent prison. I take this opportunity to pay tribute to the governor, Derek Harrison, for the work that he does.
Children Conceived through Rape
The hon. Lady raises an important and sensitive issue, but I would like to reassure her that our family law system is centred around the child and the welfare of the child. When judges make decisions about contact or care, the welfare of the child is always paramount, but we have been looking at various ways to strengthen our procedures and practice directions in relation to who gets notice of particular court applications. However, I remind the hon. Lady that the central principle is very important.
Following the recent high-profile case in Rotherham, has the Minister’s Department carried out a review of what went wrong? Is she considering a change in the law to ensure that such a case cannot happen again? If not, why not?
I am aware of the case the hon. Lady refers to, and I am pleased to have met Sammy Woodhouse some time ago, along with other Members of Parliament, to discuss the issue. We are continuing to look at this issue, at the principles that underlie it and, as I mentioned, specifically at the practice directions and procedures around these cases.
Access to Justice: Court Staffing and Closures
I would like to assure the hon. Lady that any decision to close a court is not taken lightly, but in circumstances where 41% of our courts operated in 2016-17 at half their available capacity and where we are investing £1 billion in courts and bringing them up to date, the Ministry of Justice has to think carefully about where our court resources are most effectively and efficiently spent.
I thank the Minister for her response. However, the recent closure of courts in West Yorkshire is putting additional pressure on those that remain, causing backlogs and delays. The Hands off HRI campaign, which is fighting to save services at our local hospital, Huddersfield Royal Infirmary, is waiting for a consent order that is with Leeds Crown court. However, the backlog of several weeks means that the campaign is undergoing a lengthy period of uncertainty, as are those involved in many other cases. What is the Secretary of State doing to ensure that cuts to staffing and closures are not damaging my constituents’ access to justice?
As I mentioned, when we undertake court closures—they are undertaken very carefully, and the Lord Chancellor does not undertake these decisions lightly—we look at court utilisation rates, and the courts that are closed are often those that are not performing in terms of capacity. On the case the hon. Lady refers to, I am happy to take it up with her and to look at any backlog or delay.
The Government have been forced to announce a one-year delay to their £1 billion court reform programme. Many people are concerned that this programme is simply a smokescreen for sacking staff and closing courts. Will the Government take this opportunity to have a public debate about the issue and to allow Parliament to debate and scrutinise these changes?
Our court reform programme is one of the most ambitious in the world. We recently held a seminar at which at least 20 other countries were represented. They talked about their reform programmes, and none of them was as ambitious as ours in streamlining, making more effective and modernising the court process. The delay in the programme is to ensure that we can efficiently and effectively manage the programme going forward.
Prisoners: Access to Telephones
We need to prevent these mobile phones from getting into prison. That is not always easy, because some of the new phones are almost just an inch in size. This work involves not just metal detectors, but X-ray scanners that can look inside bodies. If these phones get inside prisons, we need to identify them, we need to intercept the calls and block them, and we need to seize the phones.
I thank the Minister for that reply. Does he agree that, where prisoners use mobile phones to send vile messages to the families of their victims, social media giants such as Snapchat must take responsibility and help the police to bring the culprits to justice?
First, using a mobile phone in a prison is an illegal act. It is a horrifying thing to harass victims using a phone from prison. It is entirely illegal, and we will be working with colleagues from the Department for Digital, Culture, Media and Sport to draw the attention of these social media companies to the fact that illegal action is taking place through their systems.
Rehabilitation in Prisons: New Technology
Technology can play an important role in supporting rehabilitation. The careful use of basic computers and telephones enables us to do that. New digital services are being built for prison officers as part of the offender management in custody programme.
Good mental health and wellbeing are key to rehabilitation in prisons. What steps is my right hon. Friend taking to use the best technology in this regard?
My hon. Friend raises a very important point. There is huge potential in this area, but we are already taking steps through telehealth and virtual consultations. We have in-cell telephony, which can be used in these circumstances. Digital hub services also exist, and the prison virtual learning environment includes a health application, so we have a virtual campus that can help people to address addiction issues. I think that there is much more potential in this area in the future.
Imprisonment of Offenders
Under this Government, the most serious offenders are more likely to go to prison and for longer, helping to protect the public and keep communities safe. Prison will be the right place for some offenders, but equally there is evidence that it does not work in rehabilitating others. I want to move the debate on from the old false choice between soft justice versus hard justice, and instead ensure we are focused on delivering smart justice. We need to think more imaginatively about different and more modern forms of punishment in the community.
I support the broad thrust of ensuring that sentences work, particularly for female offenders. Does the Secretary of State agree that at the same time we should look at early release and whether it could be recalibrated to improve prison discipline?
Incentives in the prison system are important to achieving good behaviour. Early release does help offenders to successfully make the transition from custody to living crime-free lives in the community. An additional early release scheme for certain offenders, home detention curfew, further helps to manage that transition and reduce future offending.
Question 20, Mr Speaker.
The hon. Gentleman’s question has been grouped. His opportunity is here. His moment is now. Let us hear the sonorous tones of the hon. Gentleman.
I am very grateful, Mr Speaker.
I understand the UK Government are looking at the effectiveness of short-term custodial sentences to reduce reoffending. I invite Ministers to look at the experience in Scotland, where short-term sentences have already been abolished yet reoffending rates remain stubbornly high. I therefore urge Ministers to look more closely at whether rehabilitation programmes in prison are working effectively, even those for prisoners on short-term sentences.
In conjunction with reforming short sentences, it is important that we have confidence in the delivery of community orders. We have been clear that in England and Wales probation services need to improve—we have already discussed that—but the two have to run together: reform of short sentences and adequate community alternatives.
What are the Government doing to ensure tougher sentences for those who are found guilty of violent crimes?
Under this Government, over the past nine years, sentences for violent crime have gone up. For knife crime in particular, the chances of a custodial sentence have increased and the length of the custodial sentence has increased.
The “Female Offender Strategy”, which we published last summer, sets out a raft of specific commitments underpinned by our vision to see fewer women coming into the criminal justice system, a greater proportion managed successfully in the community and better conditions for those in custody.
Rates of suicide in female institutions are often disproportionately high. Will the Minister update the House on what he is doing to work with female prisons to bring suicide rates down, including prisons such as Eastwood Park in my constituency?
Every death in prison is a tragedy, and we are committed to improving the safety and support available to all in our prisons. The rate of self-inflicted deaths in women’s prisons is lower than that seen in the male estate, but we recognise that the rate of self-harm is nearly five times the rate in the male estate. Therefore, we know that we need to do more. That is why we have set up a specialist safer custody team dedicated to the women’s estate and are rolling out revised and improved suicide and self-harm prevention training.
Yesterday, the Government were pleased to give their support and time to the Children Act 1989 (Amendment) (Female Genital Mutilation) Bill, sponsored in this House by my hon. Friend the Member for Richmond Park (Zac Goldsmith). The Bill, which seeks to make a small yet important change to the Children Act 1989, offers both a sensible simplification of the court process and a useful extension to the family courts’ powers to protect girls at risk of female genital mutilation. It will add to the measures that the Government have brought forward to tackle FGM issues.
We are very short of time. One-sentence questions will suffice.
Can my right hon. Friend provide an update on the Government’s consideration of giving children the right to have access to their grandparents in the event of family breakdown or divorce?
I pay tribute to my hon. Friend’s activities in this area. I am reviewing the options for strengthening the involvement of grandparents in children’s lives to be explored in a future consultation. I will make an announcement on the Government’s plans in due course.
Too many young lives are being lost to violent crime on our streets. Whatever the Prime Minister may say, substantial reductions in police numbers leave our communities less safe—so does shutting hundreds of youth centres and so, too, does the Ministry of Justice’s halving of funds for youth offending teams since 2010. Tens of millions of pounds that once went to protecting children in their communities have needlessly been taken away, so when will the Government stop trying to do justice on the cheap and instead properly fund youth offending teams?
I do not accept the hon. Gentleman’s criticism. This Government have announced a £200 million youth endowment fund. We are taking measures to deal with the sources of problems with this, and we will continue to do that.
I absolutely confirm that. Britain has a very proud tradition in campaigning nationally and internationally against animal cruelty. The Government remain committed to increasing the maximum sentence for animal cruelty to five years.
As the hon. Gentleman will know, thresholds across the board, including in relation to criminal legal aid, are part of the legal aid review that we are now undertaking.
My hon. Friend is right to highlight that we need to speed up the hearing times for people’s welfare claims. There are two aspects to that: the first is that we need to work with the Department for Work and Pensions, which we are doing, and I am doing with my counterpart in the DWP, to get decisions right first time; and the second is to speed up those hearings.
As the hon. Gentleman says, that is a fantastic organisation. We are, of course, conducting a very detailed consultation on the future of probation, but to reassure him, the principles behind Durham’s CRC and, in particular, the involvement of local authorities and of the voluntary sector and the close co-ordination with the National Probation Service are fundamental to our reforms.
Where an offender is assessed as presenting a risk of serious harm, they will receive a standard recall and may only be released into the community if they can be safely managed there. If there is not that risk, a proportionate response is sensible. Her Majesty’s inspectorate of probation has found that probation services, in the vast majority of cases, are making the right decisions.
I have had a number of meetings with my counterpart in the DWP, and my officials discuss this issue with the DWP regularly. I and my counterpart in the DWP will undertake a joint meeting at an assessment centre to further consider these important issues and ensure that we get decisions right first time.
There are 9,090 foreign national offenders in our prisons, including 760 from Albania. Why are those people not serving their sentence in prison in their own countries?
That is a very good challenge. My hon. Friend specifically raised Albania, with which we have a prison transfer agreement in place. I met the Albanian Minister of Justice two weeks ago. We need to ensure that more returns take place, but we are well ahead of Italy and Greece on returns to Albania.
My Department will continue to argue the case for spending our money sensibly and getting the best deal for justice.
Will my hon. Friend the Minister outline what plans he has to increase support for rape crisis centres?
I pay tribute to Fern Champion, who has been incredibly courageous in speaking out recently about this hugely important issue. We provide funding for 89 rape support centres. From April, we will increase funding by 10% for them all, with a 30% increase in London, and move to a three-year funding settlement.[Official Report, 21 March 2019, Vol. 656, c. 12MC.]
It is absolutely true that we need to look not just at convicted prisoners but at people with suspended sentences. That is something we are looking at in reforming probation, and the pilots on homelessness will also seek to address it.
Law centres play an absolutely fundamental role. I recently visited Bromley by Bow Centre and Islington Law Centre. As part of our pilots, law centres will be able to bid for new ways to interact with their clients, and I hope they will take that opportunity.
Withdrawal Agreement: Legal Opinion
With permission, Mr Speaker, I would like to make a statement about my legal opinion on the joint instrument and unilateral declaration concerning the withdrawal agreement published last night.
Last week, I confirmed I would publish my
“legal opinion on any document that is produced and negotiated with the Union.”—[Official Report, 7 March 2019; Vol. 655, c. 1112.]
That has now been laid before the House. This statement summarises the instruments and my opinion of their legal effect.
Last night in Strasbourg, the Prime Minister secured legally binding changes that strengthen and improve the withdrawal agreement and the political declaration. The Government laid three new documents reflecting those changes in the House: first, a joint legally binding instrument on the withdrawal agreement and the protocol on Northern Ireland; secondly, a unilateral declaration by the United Kingdom in relation to the operation of the Northern Ireland protocol; and thirdly, a joint statement to supplement the political declaration. The legal opinion I have provided to the House today focuses on the first two of those documents, which relate to the functioning of the backstop and the efforts of the parties that will be required to supersede it.
Let me say frankly what, in my opinion, these documents do not do. They are not about a situation where, despite the parties properly fulfilling the duties of good faith and best endeavours, they cannot reach an agreement on a future relationship. Such an event, in my opinion, is highly unlikely to occur, and it is in the interests of both the United Kingdom and the European Union to agree a future relationship as quickly as possible. Let me make it clear, however, that were such a situation to occur, the legal risk, as I set it out in my letter of 13 November, remains unchanged. The question for the House is whether in the light of these improvements, as a political judgment, it should now enter into those arrangements.
Let me move on to what the documents do achieve. As I set out in my opinion, the joint instrument puts the commitments in the letter from Presidents Tusk and Juncker of 14 January 2019 into a legally binding form, and provides, in addition, useful clarifications, amplifications of existing obligations, and some new obligations. The instrument confirms that the European Union cannot pursue an objective of trying to trap the UK in the backstop indefinitely. It makes explicit that that would constitute bad faith, which would be the basis of a formal dispute before an arbitration tribunal. That means, ultimately, that the protocol could be suspended if the European Union continued to breach its obligations.
The joint instrument also reflects the United Kingdom’s and the Union’s commitment to work to replace the backstop with alternative arrangements by December 2020, including as set out in the withdrawal agreement. Those commitments include establishing
“immediately following the ratification of the Withdrawal Agreement, a negotiating track for replacing the customs and regulatory alignment in goods elements of the protocol with alternative arrangements.”
If an agreement has not been concluded within one year of the UK’s withdrawal, efforts must be redoubled. [Laughter.]
In my view, as a matter of law, the provisions relating to the timing of the efforts to be made in resolving withdrawal agreements make time of the essence in the negotiation of a subsequent agreement. A doctrine with which the lawyers in the House will be familiar is of legal relevance. In my opinion, the provisions of the joint instrument extend beyond mere interpretation of the withdrawal agreement, and represent materially new legal obligations and commitments which enhance its existing terms.
Let me now turn to the unilateral declaration. It records the United Kingdom’s position that, if it were not possible to conclude a subsequent agreement to replace the protocol because of a breach by the Union of its duty of good faith, it would be entitled to take measures to disapply the provisions of the protocol in accordance with the withdrawal agreement’s dispute resolution procedures and article 20, to which I have referred. There is no doubt, in my view, that the clarifications and amplified obligations contained in the joint statement and the unilateral declaration provide a substantive and binding reinforcement of the legal rights available to the UK in the event that the Union were to fail in its duties of good faith and best endeavours.
I have in this statement, and in the letter that I have published today, set out, frankly and candidly, my view of the legal effect of the new instruments that the Government have agreed with the Union. However, the matters of law affecting withdrawal can only inform what is essentially a political decision that each of us must make. This is a question not of the lawfulness of the Government’s action but of the prudence, as a matter of policy and political judgment, of entering into an international agreement on the terms proposed.
I am grateful to the Attorney General for his statement and for advance sight of it.
The Attorney General made it clear in his original advice of 13 November on the backstop protocol that:
“In international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part”,
and he was right, because article 178 of the withdrawal agreement is clear that the remedy of suspension of obligations is only ever meant to be temporary to secure compliance to the agreement and not as a gateway to a full exit.
So people quite rightly ask now what has changed. In her Strasbourg statement the Prime Minister said the joint interpretative instrument makes three changes. She said, first, that the UK can challenge the EU in an arbitration panel if the EU is found in breach of good faith and suspend the backstop. But that was already in article 178 of the withdrawal agreement; it is not new. Secondly, the Prime Minister said there is a legal commitment that whatever replaces the backstop does not need to replicate it, but the January letter of Presidents Tusk and Juncker said:
“Any arrangements which supersede the Protocol are not required to replicate its provisions in any respect”;
it is not new. Thirdly, the Prime Minister said it entrenches in legally binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January, but on 14 January the Prime Minister told this House:
“My right hon. and learned Friend the Attorney General has also written to me today confirming that in the light of the joint response from the Presidents of the European Council and the Commission, these conclusions ‘would have legal force in international law’.”—[Official Report, 14 January 2019; Vol. 652, c. 824.]
That is not new either.
I am going to take the Attorney General at his word, because he said in his Mail on Sunday interview:
“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop.”
I am going to be fair to the Attorney General: he has not changed his opinion. Let us read his advice to this House at paragraph 19:
“the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”
I say to the Attorney General that paragraphs 15 to 19 of his advice constitute seven sentences that destroy the Government’s strategy of recent weeks—that sink the Government’s case that they had any chance of securing a right, under international law, to unilaterally exit the protocol’s arrangements. We have gone from having “a nothing has changed” Prime Minister to having “a nothing has changed” Attorney General.
In fairness to the Attorney General it is not just his view: it is the view of a number of other respected lawyers, including Professor Philippe Sands, Professor Sir David Edward and the Government’s own former counter-terror watchdog, now Lord Anderson QC. The Attorney General knows that speaking about reasonable endeavours and bad faith is one thing, but he can confirm the reality, which is that the new documents do nothing about the situation when the talks with the EU are at a stalemate not because of bad faith, but simply because both sides cannot reach an agreement.
Proving bad faith is extraordinarily difficult, and the Attorney General points that out in paragraph 16 of his own advice. The strongest remedy in this withdrawal agreement, even with this document, remains a temporary suspension. Indeed, we need only look at his own legal advice to see that, at paragraph 9, which speaks of
“suspension of all or parts of the Protocol, including the backstop, until there is satisfactory compliance.”
Trade talks can break down for a variety of reasons. For two parties to act on the basis of their own interests is not bad faith, and the Attorney General knows it. In these circumstances, despite any assurances about the temporary nature of the backstop, the reality is that it can endure indefinitely. Ninety-two days after the Prime Minister abandoned the first meaningful vote, in this Attorney General’s view
“the legal risk remains unchanged”.
What the Attorney General was asked to do, and what the Prime Minister promised in this House on 29 January—to change the text of the withdrawal agreement—simply is not possible. He is a lawyer; he is not a magician. Does not this whole episode of recent weeks show that when national leadership is required, this Prime Minister, as always, puts party before country?
The hon. Gentleman asks me about my opinion. He knows that my opinion is that there is no ultimate unilateral right out of this arrangement. The risk of that continues, but the question is whether it is a likelihood, politically. One thing that we did not hear from him is what the Labour party’s position is on the backstop. Does they accept the backstop? Do they think it is a good thing? If they think it is a good thing, why on earth are they criticising it? Or is this just the usual political opportunism that one expects to hear from the Front Bench of the Labour party?
The hon. Gentleman says to me that there is nothing new in this agreement, but that is not so, and some of the authorities that he has quoted are saying that this morning. There are material new obligations—for example, in relation to alternative arrangements. There is now a heavy emphasis upon a swift and expedited track to negotiate them, and it would be unconscionable if, having made that emphasis and having said that time was of the essence, the European Union simply refused to consider or adopt reasonable proposals relating to alternative arrangements. That is new. What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. This makes significant reductions in that risk.
I say to the hon. Gentleman that it would be a good thing if we could hear from the Labour party just occasionally not only political shenanigans but some sincere engagement with the real issues that this withdrawal agreement now raises. The question now is: do we assume our responsibilities as a House and allow not only this country—yearning as it is for us to move on—but the entire continent of Europe to move on? To do that, the time has come now to vote for this deal.
I welcome my right hon. and learned Friend to his place. He has shown absolutely that he is what he should be: an independent adviser to the Government. I congratulate him on that, because that is exactly what he should be. Given the clarity of his advice, I want to ask him a particular question. As he will know, I and others have spent some time looking at and working on alternative arrangements. I would like to clarify exactly what force he thinks those would have. As he said just now, there would be an obligation for the European Union to “consider or adopt” such proposals if they were made in a reasonable way. How does that square with his paragraph 16, in which he says
“it would be highly unlikely that the United Kingdom could take advantage of the remedies available to it for such a breach under the Withdrawal Agreement”?
My right hon. Friend has got paragraph 16 wrong, if I may respectfully say so. What it says was that I advised in the past that that was so. What I now consider, at paragraph 17, is:
“that the legally binding provisions of the Joint Instrument and the content of the Unilateral Declaration reduce the risk”
that we would be held involuntarily and by the bad faith. Why? Because these new provisions make it easier to facilitate an effective claim to the arbitrator that that conduct is being exhibited. Those are cumulative. If one looks at the agreement as a whole, one sees that the obligations on the Union are to treat with urgency the negotiation of alternative arrangements. There is a new obligation that has not existed before in any document that the Union has agreed to, which is that it must aim to do this within 12 months of our withdrawal. That is an important obligation, because it makes time of the essence. If that deadline is passed, as in any legal jurisprudence on such matters relating in a domestic context to breach of contract, for example, that means that the parties must demonstrate that they are intensifying their efforts. If they do not, they could be in breach of their best endeavours obligation.
I start by saying that I have respect and sympathy for the Attorney General. The role of the law officer is not easy, particularly when he or she is a party political appointment, but he must nevertheless from time to time burst his party’s political bubble in the interests of professional integrity and independence of advice. Make no mistake, that is what the Attorney General has done today.
Today, the emperor has no clothes; none at all—not even a codpiece. For all the yards of flannel in paragraphs 4 to 10 of the Attorney General’s legal opinion and in today’s statement, it is quite clear, as the shadow Attorney General said, from paragraph 19 of the legal opinion that the legal position previously outlined by the Attorney General remains the same. The measures therefore fall very short of what was demanded by the Brady amendment and very short of what was promised to those in the European Research Group, which I am sure will not have been lost upon them or their lawyers.
The withdrawal agreement has not been changed, and that the Attorney General should admit that that is so is not surprising given the weight of legal opinion about the measures overnight. Some Conservative Members will not take my legal opinion for it. I am unsure why, but perhaps they think that a lawyer who is a member of the SNP is not to be trusted. At all events, I am sure that they will put some weight on the opinion of my good friend Lord Anderson of Ipswich, the former Government independent reviewer of terrorism legislation. He provided a detailed opinion overnight—[Interruption.] I hear someone muttering from the Conservative Benches that he is being paid by the people’s vote campaign, but that person ought to be aware that it is the professional duty of any senior counsel to give an objective, dispassionate opinion. Perhaps the person muttering from a sedentary position should not transfer their own motives on to someone as honourable as Lord Anderson.
I will ask the Attorney General whether he agrees with me and with a number of Lord Anderson’s points. Lord Anderson says that the measures obtained by the Prime Minister
“do not allow the UK to terminate the backstop in the event that negotiations over its future relationship with the EU cannot be brought to a satisfactory conclusion”.
That is correct, and I am sure that the Attorney General will agree. Lord Anderson also says that the measures
“do not provide the UK with a right to terminate the backstop at a time of its choosing, or indeed at any time, without the agreement of the EU.”
Lord Anderson is right that there is no unilateral exit here. He then goes on to say:
“The furthest they go is to reiterate the possibility that the backstop might be suspended”—
not got out of, but suspended—
“in extreme circumstances of bad faith on the part of the EU which”
“are highly unlikely to be demonstrated.
Lord Anderson also points out:
“This was already apparent from the Withdrawal Agreement, and had been acknowledged in the Attorney General’s previous legal advice.”
Does the Attorney General agree with all those points in Lord Anderson’s independent, impartial, objective opinion? Does he further agree that in fact nothing has changed and that the Prime Minister has yet again failed to deliver on what she has promised?
What I hope will not be lost on my hon. and right hon. Friends is why the hon. and learned Lady is insisting and pressing upon them the facts and matters that she has just been drawing to their attention. It could be, I wonder, that there is some ulterior motive in her concern about the absence of a unilateral exit mechanism in all circumstances.
Turning to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect—as anybody of his distinction should be listened to—I take issue with some of his comments. For example—my opinion sets this out and other lawyers are commenting to that effect this morning—the hon. and learned Lady does no justice to the fact that these measures and improvements do facilitate, and mean that there is a reduction of risk in, our being able to prove and demonstrate bad faith or want of best endeavours. She says that we could not terminate, but there is in fact in my opinion a clear pathway to termination.
As the hon. and learned Lady knows, I wrote in my opinion that if in the circumstance that we got a declaration from the arbitral tribunal that there had been a lack of best endeavours, having regard to the accelerated pace of negotiation which this new agreement now imposes, we could then move to suspend our obligations, if we wished to do so, under the protocol. If that suspension was prolonged, we could invoke article 20 to argue that it was no longer necessary because the inaction of the European Union demonstrated that it must think that it was no longer necessary, and that could lead to termination. It is therefore not entirely true to say that there is no way in which the provisions could be terminated. I say to the hon. and learned Lady that suspension, in these circumstances, is as effective as termination, because the only way in which the EU could restore the position would be for it to come back to the negotiating table with genuinely new proposals.
I thank my right hon. and learned Friend for his statement. I have no reason to disagree with his conclusion in paragraph 19 of his opinion, and I commend him for standing up for his office and speaking truth to power. However, I have one query about paragraph 7 of his advice, in which he describes the joint instrument as representing
“materially new legal obligations and commitments”.
He will of course be familiar with article 31, paragraph 2 of the Vienna convention, which says that such an instrument can have legal force and be binding only in the sense that the parties cannot later alter or deny what they have agreed and that it is not a treaty in itself. In those circumstances, is it not the case that the breaching of the best endeavours obligation in itself makes no difference? The only difference is if there is bad faith, and that in fact was contained in the original agreement that we signed.
I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.
Can the Attorney General confirm that in order to get to the point at which the UK might be able to suspend the Northern Ireland protocol, it would have to, first, persuade the arbitration panel to agree with its case and, secondly, accept that any issue of EU law arising from the case that the UK had argued would have to be referred to the Court of Justice of the European Union and that any ruling of the CJEU on that matter would be binding on the panel, the EU and, most importantly for this discussion, the UK?
Of course I can confirm all those things, which are self-evident in the agreement. May I just point out to the right hon. Gentleman that although I am sure it is a clever forensic point, the circumstance in which a point of European Union law would arise in connection with the best endeavours and bad faith clauses is difficult to envisage? The reality is that it is a straightforward question of fact: is the European Union moving with the urgency and pace, to the procedural timetables and according to the procedural steps that this agreement now enforces?
The right hon. Gentleman is an honest politician, and he cannot look these things in the face and say that they mean nothing. These are important amplifications and clarifications of the duty of best endeavours. I quite agree with him, as I very much doubt we would ever get to an arbitral tribunal, because what these duties, new clarifications and amplifications do is set the framework for people’s conduct within the negotiation. It is about the impact on their behaviour and conduct. Very rare is the case in which one would get to an arbitral tribunal. What matters is the framework of obligations and responsibilities, and those have materially tightened on the European Union.
I thank my right hon. and learned Friend for his opinion, which is not only for the Government, I would stress, but for Parliament and for the voters. The substance of the backstop issue to which he has just referred is the legal, constitutional and, therefore, political status of Northern Ireland within the United Kingdom, which cannot be put at risk.
My right hon. and learned Friend refers to a reduced risk of the UK being “indefinitely” detained in the protocol, but he adds that, ultimately, there is
“no internationally lawful means of exiting”
unless both the EU and the UK agree. Does he therefore appreciate, on his own terms, that this fundamental legal impediment trumps political considerations and that, therefore, there would be insufficient protection for Northern Ireland to continue as part of the United Kingdom?
I do not agree. My hon. Friend knows we have a difference of opinion, and I hope that he will move towards my position. I still hope that might be so, and I say that because one has to look at the mutual incentives and disincentives for both parties to stay in the arrangement. I made this point in December and, for the reasons I advanced in December and in my November opinion, the incentives or disincentives for the European Union are as profound, if not greater, to get us out of the backstop than to keep us in it. That is what I firmly believe. He may disagree, but that is what I believe.
That is why I have taken the political judgment that this withdrawal agreement needs to be supported but, in saying that, these improvements do make a difference. In the last line of my advice, I say there can be no lawful exit unless there is a fundamental change of circumstance. It is extremely important to remember that there is always a right to terminate a treaty unilaterally if circumstances fundamentally change. There is no question but that we have a right to exit if those circumstances apply.
Those of us who remember some infamously politicised legal opinions, as with the Iraq war, will want to acknowledge the Attorney General’s total integrity and independence, but can he explain to a non-lawyer how respect for the international rule of law is enhanced by a unilateral declaration to break it?
The right hon. Gentleman seeks to give with one hand and take with the other. With the greatest of diffidence and respect, he is not quite right. The unilateral declaration is not incompatible with international law. It reserves the United Kingdom’s right to take all measures available to it in circumstances where the talks have broken down as a result of a breach of article 5, which is the good faith duty. It reinforces and further stresses the United Kingdom’s right to take measures to withdraw from the arrangements if there is a breach of good faith.
My right hon. and learned Friend notes in his opinion that the unilateral declaration is not an agreed document. Can he say whether efforts were made to obtain the agreement of the European Union to that declaration? If so, why was such agreement withheld?
No unilateral declaration is worth the paper it is written on if it is objected to. My understanding is that it is not objected to and that it will be deposited alongside the withdrawal agreement and, therefore, will carry legal weight under article 31 of the Vienna convention.
I join others in commending the Attorney General, and I pay tribute to him for his dealings with us and for holding entirely to his word in delivering a totally objective and fair legal analysis and opinion on whatever came back. I pay tribute to him publicly, in addition to what I have said to him privately in that regard.
In relation to reducing the risk of being held in the backstop by the EU acting in bad faith or for want of best endeavours, does the Attorney General agree with paragraph 29 of his previous advice that all the EU
“would have to do to show good faith would be to consider the UK’s proposals, even if they ultimately rejected them. This could go on repeatedly without such conduct giving rise to bad faith or failure”?
If it is not a question of bad faith, and if it is just a question of the two sides not being able to reach agreement, he says in paragraph 19 of today’s legal opinion that the “legal risk remains unchanged”.
We already know what the Irish Government and others see as the ultimate destination for Northern Ireland—the backstop is the bottom line. From what the Attorney General is saying today, provided there is no bad faith, the fact is that Northern Ireland and the rest of the United Kingdom could be trapped if the EU does not agree with the United Kingdom to a superseding agreement.
I am extremely grateful to the right hon. Gentleman for his question, which I will deal with point by point. First, my opinion has changed in connection to this country’s ability to prove bad faith if it occurred. There is now a new contextual framework for judging whether the other party is using best endeavours or good faith.
Time has been made of the essence in specific connection to negotiating alternative arrangements. A specific work track and a specific timetable are set out, and it would be unconscionable, as I say in my opinion—I forget the paragraph, but the right hon. Gentleman will have it—if having said to this country that it will set up a specific, discrete work track on alternative arrangements, which are defined in this new document as meaning facilitative techniques, technologies and customs procedures, and if having set up a timeline for negotiating those alternative arrangements by saying “12 months, or we must intensify our efforts,” it never agreed to use a single one, and if it refused every proposal reasonably adjusted to its core interests. That would be extraordinary.
I say in my written opinion, and I stand by it, that it would be a potential breach of best endeavours and good faith. Best endeavours are now defined in this joint instrument as requiring the EU to consider adverse interests and matters that are adverse to its interests. Even if these facilitative technological and customs measures were adverse to the EU’s interests, the duty still requires it to consider them. Therefore if there were a pattern of refusal, a systematic refusal, to consider these alternative arrangements, we would have a case before the arbitration panel, and it would be a potentially serious breach of good faith.
I say to the right hon. Gentleman with all candour that I believe that, and he knows I would not say it if I did not mean it. It is there in my written opinion, and I urge him to consider it.
Does my right hon. and learned Friend agree that although any practical lawyer will know that legal risks can seldom be totally eliminated from any agreement of any kind, what the parties must look at is the practical risk of something occurring? Does he not agree that what has been achieved markedly diminishes the practical risk, which is the key consideration we need to bear in mind when looking at the broader context of what is at stake here?
I entirely agree with my hon. Friend; the legal ingredient in any political question must be subordinate, and particularly in connection with this political question. The fact is that there are always legal risks of various kinds. We walk among legal risks all the time—some of us more than others, perhaps—but we do not determine our behaviour by them. We take practical judgments every minute of the day, every day of the week about whether the legal risks we are engaged in are ones that are worth taking. I say to my hon. Friends, as I say to all hon. Members, that we must come to a decision on this question today. I urge the House to consider carefully this: there is no real legal basis to be seriously troubled that the European Union will never reach agreement with us. If it occurs through bad faith, we have further improvements in the deal now. But just because we cannot reach agreement, when the alternative arrangements are now cemented into this deal in a manner they have not been before? I think not, in all candour.
In layman’s and laywoman’s terms, nothing has changed but something has been added: a year to get the timescale right, and if the Government cannot do that, they are going to try really hard for the next year. It is not possible to unilaterally stop a hard border, but it is possible for the Attorney General single-handedly to admit that all he has done today is amplify, not amend, the original deal that Parliament voted down. To say anything else really is a matter of bad faith.
I know that the hon. Lady knows that I have not attempted to say something—[Interruption.] Of course there has been no amending of the treaty, but there has been a supplementary agreement that amplifies, extends and deepens the obligations within it.
The hon. Lady can shake her head, but she has to look at the wording—at the text. If I have got something wrong, she will no doubt tell me, but the fact is that there are materially new obligations here in relation to the pace and timetable, and in relation to binding legal commitments on alternative arrangements. These set the context against which and within which the duties in respect of bad faith and best endeavours will be measured. That is a significant difference to the deal.
Paragraph 23 of the political declaration makes it clear that we would
“build and improve on the single customs territory provided for in the Withdrawal Agreement”.
We know what the EU understands that to mean. In good faith and with best endeavours, it understands it to mean a customs union, as Dan Hannan MEP reminded us earlier. So is it not the case that if we negotiate under this agreement, we will either find ourselves trapped indefinitely in the backstop, because the EU is acting “in good faith”, or have to agree a customs union, contrary to our manifesto?
I simply say to my hon. Friend that I really do not believe so. Why not? Because the commitments now cemented on alternative arrangements, which require a separate negotiating track, with a timetable to negotiate them, are now built in so that, as I have said in my written opinion, it would be extraordinary if the EU declined to adopt any such measures. It would be extraordinary, so I do not accept that the backstop is the base for any future arrangement. Let me give another reason why it is not. Built into the political declaration is an independent free trade policy, and we cannot have an independent free trade policy and have a customs union. Also built into it is no free movement. Does the Labour party support free movement now? It speaks with all sorts of voices. But the political declaration says there is none, and we cannot belong to the single market without free movement. So I say to my hon. Friend that I understand where these fears come from, but we must be bold and courageous, and we must move forward, for the sake of our country.
I, too, commend the Attorney General for his work and his efforts. I believe he has acted in all good faith. I also pay tribute to the Prime Minister, because there is no doubt that she has done her best to try to solve this problem and come back with something, but she simply has not been able to, as many of us had predicted. I am an old criminal barrister—[Interruption.] Who said, “Lock her up?” In all seriousness, criminal barristers tend to speak in plain, simple language, because we address juries. Does the Attorney General agree with this simple assessment of the joint instrument, which I have read: it does not change the withdrawal agreement, and it offers no new treaty or obligations at a treaty level? Will he also confirm that this is the end of the road—there are now no more negotiations with the EU, despite all his best efforts and those of the Government?
I do not agree with the right hon. Lady. This instrument will be deposited with the withdrawal agreement, and it contains material new obligations, which are couched in the language of agreement. That represents an agreement between the parties not only about the interpretation, but about specific operational commitments. This has a standing equal to the withdrawal agreement, including in its material commitments, particularly those relating to obligations of an operational character. So I do not agree with her; what she says is not right. We have to look at the substance, not the label.
The right hon. Lady asks whether negotiations are at an end. Yes, they are at an end. This is the moment of decision. We now have to take the fork in the road, and we are going to have to assume our responsibilities for it.
I congratulate my right hon. and learned Friend on his work, and on the splendid candour of his statement and comments this morning. I also congratulate the Secretary of State for Exiting the European Union on getting alternative arrangements and an implementation date into the text. If, however, despite the very best endeavours in negotiations and the very best of faith, agreement is not reached in time for the end of December 2020, what can an independent, sovereign UK do? If a decision is made at the political level that the game is not worth the candle, can the UK walk away?
As my right hon. Friend knows, if the parties, using best endeavours, in complete sincerity with co-operation and good faith, are simply unable to agree anything, not even a few alternative arrangements or a partial agreement—the subsequent agreement referred to in the protocol can of course be a stand-alone agreement—the UK has no unilateral exit right to leave, unless there were a fundamental change of circumstance under article 62 of the Vienna convention on the law of treaties. My right hon Friend knows that, but the question is: is it likely? What this deal has now done is place the burden on the EU to negotiate those alternative arrangements, as a result of his work, in part. I say to him that he should trust in himself, trust in the British people and trust in our ability to deliver a good deal. We can use the new contexts in this agreement, and I believe we will secure a good deal for the Northern Irish border.
I thank the Attorney General for his candour and for sticking to his integrity in the advice he has provided, which very much lines up with Lord Anderson’s advice that the backstop may accordingly “endure indefinitely”. Lord Anderson also says that the interpretive declaration is not a
“clearly worded, legally binding, ‘treaty-level’ clause which unambiguously”
overrides the text. The Attorney General has said repeatedly throughout this process that this is about politics, not law, so will he tell us whether at any point over the weekend he offered the Prime Minister preliminary advice that she would not be getting the advice she wanted for the politics of today?
The hon. Gentleman will forgive me for saying that I am afraid I am not permitted by the Law Officers’ convention to say whether I gave advice or what advice that would be.
Does the Attorney General agree that in law and in life, it is very rare for any lawyer to give a 100% guarantee on how watertight a particular agreement might be, notwithstanding the fact that that lawyer may well have great confidence in that agreement?
I entirely agree with my hon. Friend on that. With the law, we are not able to put something into a test tube, hold it over a Bunsen burner and, if it turns green, get the answer. The law is a question of judgment, and it is always blended with political considerations or, in a commercial context, with commercial considerations. The preponderance of the two form a single judgment. It is my judgment, as my hon. Friend knows, that this risk is a calculated one, but one that we can now take. I firmly believe that these new improvements make that risk more acceptable and easier for the House to take.
May I press the Attorney General on the status of the joint instrument? Last night, the Minister for the Cabinet Office claimed that
“the joint instrument has equal status in law to the withdrawal agreement itself”—[Official Report, 11 March 2019; Vol. 656, c. 132.]
and that they both have
“the status of treaties under international law”.—[Official Report, 11 March 2019; Vol. 656, c. 135.]
However, legal advice that I have seen says:
“The Joint Instrument is not incorporated into the Withdrawal Agreement, it is not a Protocol to the Withdrawal Agreement and it is not a treaty in its own right.”
Will the Attorney General clarify whether the Minister for the Cabinet Office inadvertently misled the House last night?
I would need to see the hon. Lady’s quotation in detail. The position is that if you agree and put your name to a joint instrument of this kind, you are bound by it. You are bound by it as to its interpretation and, if it expresses agreement to specific operational commitments, as this one does, you are bound by it on those, because it is an agreement that you will then carry out those specific commitments. It is an agreement, so we should not get hung up on labels. The question is: what is its substance? It is binding.
Does my right hon. and learned Friend agree that article 31 of the Vienna convention makes it perfectly clear that this protocol does have legal force, is binding and is of equal status to the treaty? Does he also agree that substantial, legally binding changes have been delivered, and that it is wrong to read just one paragraph of his legal advice—one has to read each paragraph of it? When it comes to paragraph 17 of his advice, my right hon. and learned Friend makes it clear that this is a substantial change in the level of risk.
I think I had better just say that I agree with that one.
The Attorney General’s argument seems to hinge on this matter of “highly unlikely”. I do not know whether this is his reading of recent history, but it seems to me that everything that I thought was highly unlikely five, six or seven years ago has now come to pass. Should we not be worrying about what may be likely over the next few years? After all, many of the Governments in Europe may change and the European Commission President will certainly change, so the highly unlikely may indeed come to pass. I have a sneaking memory of a conversation that the Attorney General and I had once in the Lobby, around three years ago. I asked him, “Wouldn’t it be a good idea if you should become Attorney General?”, and he said, “Oh no, that’s highly unlikely.” [Laughter.]
And so it was under that particular Prime Minister! I was telling the hon. Gentleman the complete truth, as I am telling him it now. I have forgotten what the other question was—that was a betrayal of robing room talk. I am so taken aback by that question that I think I had better sit down.
My right hon. and learned Friend has pointed out that much of what is being said is political as well as legal. Will he therefore set out for the House what penalties might fall upon this country if a future Parliament, which obviously cannot be bound, were to decide to resile from the commitments under the backstop?
Well, my hon. Friend will know that as an Attorney General I simply could not give countenance to the idea that this country would break its international legal obligations. As I have pointed out to the House, there is a right for the United Kingdom to terminate this agreement. If fundamental circumstances change, in the view of the United Kingdom, it would attempt to resolve the matter within the joint committee and it would attempt to resolve it politically, but if, ultimately, with the sovereign right of this House and of the British Government at the time, the United Kingdom took the view that those fundamental circumstances had indeed changed, it would have an undoubted legal right to withdrawal from any treaty.
Let us be clear about these kinds of absolute interpretations of black-letter text. A sovereign state has the right to withdraw if a treaty is no longer compatible with its fundamental interests or, to put it a different way, if fundamental circumstances have changed. I would say that apart from that, of course this country could resile from its commitments, but it would be unwise and it would not be in the tradition of this country to do so. In those circumstances, it is perfectly true that the only remedies the Union would have would be to take countermeasures, and no doubt it would pollute the atmosphere for fruitful relationships between us, which is precisely why this country will never do it, and neither would the European Union.
I am not a lawyer, and neither are millions of people watching today. I obviously defer to the Attorney General’s advice, but will he tell people why the United Kingdom, a sovereign country, would think of signing up to anything—we signed up to the European Union and at least there was a way out of it through article 50, although it has taken a long time—that does not allow us simply to say, “This is not working, we are not going to sign up to this and we are leaving”?
We have made a solemn pledge to the people of both Northern Ireland and the Republic of Ireland that the border will be guaranteed never to be a hard border. That required the United Kingdom to say that in all normal circumstances we will not depart from that pledge. I repeat the point that I made to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg): in the case of a fundamental change of circumstance, which is ultimately the sovereign right of this House and the Government to determine, the United Kingdom could withdraw, pursuant to customary international law. So it is not true to say that there is not ultimately the right of this House and the Government of the country at the time to exercise their discretion to do so in those circumstances. But in every other circumstance, we have said to the people of Northern Ireland, “We will ensure that your lives will be able to continue as they do now at the border.” I say that that act was worthy of this House, worthy of the Government and worthy of the British people, and it is one that is worthy of support.
My right hon. and learned Friend has just said to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) that the United Kingdom would never do that, so why did he raise the possibility of our withdrawing from a treaty under the Vienna convention in the first place?
No, no, no. What I said to my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) was that we would not do it in breach of the law. We are permitted, in a case of fundamental change of circumstances, to withdraw by the law. If such a change of circumstance came about—either because of some fundamental political change in Northern Ireland or some fundamental change of circumstance going to the essential basis of the agreement—then we would have the right to withdraw. But in all normal, envisageable and predictable circumstances, particularly while we are negotiating a subsequent agreement to the pace and accelerated timetable that this instrument now requires, we would not do so and it would be wrong to do so—wrong because it would be a breach of our obligations and wrong because this is a law-abiding country.
The Attorney General said that it is highly unlikely that through the best endeavours they cannot reach an agreement. For the past four months, the Government have been in Brussels trying to replace the backstop with alternative measures and they have come back empty-handed. The negotiations have not delivered, despite the best endeavours. Is it not the case that the very situation that he describes in two years’ time as being highly unlikely is the situation we are in right now?
No, no, no. We have not been attempting to secure alternative arrangements now. We have been putting forward the fact that, in the future, all those alternative arrangements are likely to exist, so the European Union has responded by saying, “We will set up a new, special negotiating track, we will negotiate with an increased urgency and to a new timetable and we will implement these”—they have defined them—“customs procedures and technologies and so on.” So it is not right to say that the same situation arises now. These systems will be developed over time and that is the purpose of the working group that the Union has agreed to set up with this country.
I thank the Attorney General for being so patient when I have been working on this unilateral declaration for the past two months and I thank him for including it in the final agreement, but may I ask him a detailed question because the devil is in the detail? There is no doubt, having worked with academic opinion, that a unilateral declaration is absolutely binding as long as it is deposited at the time the treaty is ratified. The unilateral declaration makes it clear that there is nothing to stop the UK leaving the backstop if talks break down, but it has to be a unilateral, conditional, interpretative declaration; that is what international law states. We are signing and agreeing to this withdrawal agreement only on condition—that is why the word “conditional” is important—that, if the talks break down, we can exit. So can the Attorney General now use the word “conditional” to reassure the House?
First, may I say to my right hon. Friend that I am extremely grateful for the dialogue that we have had and he was, in no small part, the author of the seeds of this idea. Much of the material that he and other distinguished lawyers have been able to contribute has led to the proposal that we have now adopted. But I say to him that the unilateral declaration in this case does not need to say “conditional” because it is not objected to by the Union and, if it is not objected to, and the withdrawal agreement is ratified by the Union, it becomes binding.
I hope that the Attorney General can respond to me today without any reference to either his underwear or his genitalia. Last week, he said that we seek
“legally-binding changes to the backstop which ensure that it cannot be indefinite”.
Today, he says that the legal risk remains unchanged. All he is able to offer us is a new work schedule—a sort of glorified to do list. If, as he keeps saying, time is of the essence, has not the Prime Minister wasted the last two months?
I will try to obey the hon. Lady’s strictures about comments that I have made before. May I say to her that that is not quite right? I have said that the legal risk is reduced. The legal risk of being held in the backstop by bad faith or by want of best endeavours has reduced. It has reduced because of significant improvements which, as I have said, set the context and benchmark for the enforceability of those important duties. But it is absolutely true, as she rightly says, that the risk of remaining in the backstop absent any fundamental change of circumstance, if no bad faith or if no want of best endeavours is present, remains the same.
I, too, am not a lawyer, but the Attorney General is doing a very good job of clarifying to me and to the House the important improvements that the negotiating team has brought. A lawyer I know characterised paragraph 19 of his letter as
“a minimal legal risk unlikely to be crystallised”.
Does my right hon. and learned Friend agree with that opinion?
Yes, I do. Given what is at stake for the people of Northern Ireland and the Republic of Ireland, for the credit and faith of the European Union, which will be on the line, and for our ability to measure its performance against the detailed timetables and procedures that are now in place, I simply do not believe that we will be unable to reach any agreement with them. I repeat: it is perfectly possible to approach this in stages—to agree several agreements. We will be able to agree something over the next two or three years and the first priority, which is set out in this instrument, is the subsequent agreement replacing the backstop.
My preference would be an arrangement that does not necessitate a backstop. For all the words that the Attorney General has used, is it not the case that none of these things—the joint instrument, the unilateral declaration and the change to the declaration—facilitates an unconditional unilateral withdrawal by the UK from the backstop? More than that, for all the words that he has used, we will still end up paying a divorce bill of more than £50 billion, in part in return for a political declaration that has no legal force whatever. That is the key point.
The hon. Gentleman is not right about that. Under article 184 of the withdrawal agreement, there is a legal duty on the Union and the UK to negotiate a deal that is in line, and according to, the political declaration. He asks, is there any unconditional right to withdraw? With respect, I have answered that question. The only circumstance in which there would be an unconditional right to withdraw is if there were a fundamental change of circumstances pursuant to customary international law.
I commend my right hon. and learned Friend for the way he is pursuing the remit of his office. He is, of course, right that there is a political dimension to the decision that we will all have to make this evening, but may I ask him this question? He has confirmed today that, if there were a fundamental change of circumstances, this country would have the right to walk away from the agreement, but can he also confirm that, if that were to happen and we did walk away, we could take Northern Ireland with us as a member of the United Kingdom, thereby extracting it from the customs union within the EU?
Let me make it clear: the United Kingdom is the United Kingdom, it includes Northern Ireland and there is no circumstance in which the Government of this country, and certainly not a Conservative Government, will ever leave Northern Ireland behind, subject to the obligations under the Belfast agreement. That has been proposed, as my hon. Friend knows. It has been proposed that we should have a termination right for GB only and the Prime Minister explained why that was unacceptable.
The Attorney General says that the joint instrument and the content of the unilateral declaration relating to the withdrawal agreement
“reduce the risk that the United Kingdom could be indefinitely and involuntarily”
held in the backstop in the event of bad faith, but surely that was only ever a very limited risk. Is it not true that the far greater risk of being held in the backstop indefinitely is not as a result of the failure of either party to act in good faith, but because of intractable differences? In such circumstances, is it not right that the people of Northern Ireland and the Republic of Ireland should have the confidence that measures that they can trust will be in place to prevent a hard border, and that the backstop would be exited upon a new agreement being reached? Does not that make perfect sense?
It does make perfect sense. I have to say that I would have preferred to have seen a right of termination, mitigated and graduated, fairly balancing and apportioning risk, and only useable in a last resort, but the Union was not willing to agree to such a reasonable—and what I considered to be moderate—proposal. I agree with the hon. Lady, which is why I voted for the deal. It is sensible that that assurance can be given, and that is why the British Government have given it. I would say, though, that best endeavours is not—particularly now, with the context heightened and the benchmarks tightened—a meaningless duty, because best endeavours requires that a party should consider proposals that are contrary to its interests, and it may have to accept them. A party cannot go on refusing something that requires a reasonable adjustment in its position.
Good faith; best endeavours; trust. May I tell my right hon. and learned Friend that they have run out? Many in this country do not trust the EU, and I am sad to say that many in this country do not trust many MPs in this place to deliver what the vote told this country to do. Surely the only option now is to get a clean break, leave on 29 March and get our country back.
I understand my hon. Friend’s frustrations, but I do not agree with his language. I have found those with whom we are doing business in the European Union to be perfectly reasonable and rational people, and I have no complaint about the manner in which negotiations have been conducted—they have always been conducted with cordiality and civility on both sides—so I do not believe that we cannot trust them to reach a deal, because it is in the interests of the Union itself.
Had the Attorney General been instructed to demonstrate that it is possible to walk away from the backstop by clients at his usual, generous commercial rates, would he have advised them to save their money?
I am not convinced that I fully understood the question, perhaps because I did it too much justice and thought it might be a sensible one. The truth is that I doubt I agree with it.
May I place on the record at the outset that, whatever one may think of the issues at stake, the integrity and honesty of the Attorney General are absolutely above question? I commend him for his approach. Much of this agreement requires consideration of the concept of bad faith, so will he please outline what circumstances would constitute bad faith and how the UK might prove them, bearing in mind that, as he will know, international arbitrators are loth to find that a sovereign state such as the UK or a respected body such as the EU have acted in bad faith? Is it not the case that, were the EU to continue to propose ideas that were in good faith but unacceptable to the UK, such as a customs union, these proposals would not assist us?
No, I do not agree. The position is more nuanced than that. The pattern of refusing to accept reasonable proposals such as alternative arrangements that could not be said to compromise fundamental interests at the border would be raised immediately—a prima facie question. A pattern of consistent refusal would raise a prima facie question over the best endeavours and good faith clause. As my hon. Friend will have seen, some of these provisions are already in the joint instrument, including systematic conduct, declining to consider, declining to be flexible and declining to consider adverse interests. These best endeavours duties are real duties that are contained in commercial contracts all the time. They are litigated and brought to court, as he will know. We must not allow our fears to run away with us. We need to trust ourselves. We can make the leverage of the backstop as powerful an argument for them not to remain in it as it is for us.
Does not all this hand-wringing over the backstop reflect the hubris of those who thought they could reconcile the irreconcilable—the alchemists who believed that they could conjure up this pretence of Brexit at the same time as a frictionless, open Irish border? Have we not finally reached the end of the road for the spinners, peddlers and blaggers in the leave campaign who stooped to lying about this being the easiest thing in the world?
Of course, claims are made on both sides of the argument in any election or battle before the electorate. I remember some pretty exaggerated ones being made on the hon. Gentleman’s side of the argument, to be frank. If there is a serious point lying beneath that stream of adjectives, I would have to say that I agree with the hon. Gentleman in one respect: the enemy of the interests of this country is dangerous oversimplification of the complexity of the problems that we face. If that is the point that resides beneath his question, I would agree. We cannot underestimate the complexity of separating ourselves from 45 years of organic, legal and other integration with the European Union, but this withdrawal agreement does not underestimate that; it addresses the issues at a complex level, secures rights, and fairly apportions the dues and obligations. It is a deal that we need in order to achieve the first stage of that separation.
Order. I am sorry to disappoint remaining colleagues, and I am extremely grateful to the Attorney General and all who have participated in these exchanges, but we must now move on. Some dozens of colleagues wish to speak in the main debate and I have to make a judgment about the importance of now proceeding.
Immigration (Armed Forces) Bill
Presentation and First Reading (Standing Order No. 57)
Sir Edward Davey, supported by Jamie Stone, presented a Bill to remove financial requirements and fees for applications for indefinite leave to remain in the United Kingdom from foreign or Commonwealth members of the armed forces on discharge and their families; and for connected purposes.
Bill read the First time; to be read a Second time on Friday 22 March and to be printed (Bill 356).
Election Expenses (Authorisation of Free or Discounted Support)
Motion for leave to bring in a Bill (Standing Order No. 23)
I beg to move,
That leave be given to bring in a Bill to amend the Representation of the People Act 1983 to provide that election expenses relating to property, goods, services or facilities provided free of charge or at a discount are incurred only if authorised by the candidate or the candidate’s election agent; and for connected purposes.
Legislation should be like a big red bus. There should be no ambiguity about what it is, what it looks like and what it does. More importantly, there should be a full awareness of the consequences of stepping out in front of it. One such collection of legislation that currently fails the red bus test has to be election law, notably some of the provisions of the Representation of the People Act 1983.
The legislation, under decades of interpretation going back to 1868, meant that the agent and candidate were the gatekeepers of election expenditure. The potential for a criminal record, custodial sentence and bar from public office makes this an equitable settlement. This was recognised under section 90ZA in the Representation of the People Act, subsection (4) of which states:
“For the purposes of this Part of this Act, election expenses are incurred by or on behalf of a candidate at an election if they are incurred…by the candidate or his election agent, or…by any person authorised by the candidate or his election agent to incur expenses.”
All clear thus far. However, I wish to amend section 90C, which was inserted as part of the Political Parties, Elections and Referendums Act 2000.
With the continued mudslinging from all sides regarding the spending surrounding the EU referendum, I feel that red bus clarity would appear to be equally lacking in the PPERA—but that must remain a debate for another day. Section 90C introduced the wholly reasonable concept of accounting properly for goods, services and facilities provided either at a discount or free—for instance, a friendly printer, in lieu of a cash donation, providing below market rate or free printing. Section 90C ensured that the proper cost and corresponding donation for the discount were properly accounted for.
There was a long-established understanding of the section that the fundamental concept of proper agent or candidate authorisation still needed to apply under the authorising provision for election expenses under section 90ZA. I quote from the relevant subsection:
“property, goods, services or facilities is or are provided for the use or benefit of the candidate free of charge or at a discount of more than 10 per cent. of the commercial rate for the use of the property or for the provision of the goods, services or facilities, and
(b) the property, goods, services or facilities is or are made use of by or on behalf of the candidate in circumstances such that, if any expenses were to be (or are) actually incurred by or on behalf of the candidate in respect of that use, they would be (or are) election expenses incurred by or on behalf of the candidate.”
Paragraph (b) is of most interest, as it uses the word “incurred”, which mirrors entirely the word—and, one must presume, the intent—under section 90ZA.
As part of preliminary questions to be answered prior to my criminal trial, I took the question of the proper construction of section 90C to the Appeal Court after an initial interpretation of the position by the trial judge. The Lord Chief Justice at the Appeal Court agreed with the long-understood position that I have outlined—that for section 90C to apply, proper approval of such expenditure by the agent or candidate must be there under section 90ZA. So normality seemed to have returned—but the story did not end there. The Crown Prosecution Service, with the Electoral Commission attaching itself as an interested party, appealed the Appeal Court decision to the Supreme Court. That judgment was given on 25 July 2018. It overturned the Appeal Court decision and the long-held interpretation used by all agents, candidates and political parties.
In summary, the Supreme Court, whose judgment has to stand as the definitive interpretation of section 90C, directs that election-related expenses expended without the authorisation of an agent or candidate can none the less be deemed election expenses. With the Electoral Commission attaching itself as an interested party to the Supreme Court hearing, one must assume that this “no need for authorisation” interpretation was always its interpretation of election law. If that were the case, why did it not say so in its guidance for all candidates and agents for the 2015 general election?
With my prosecution looming into view by the time of the snap 2017 general election and with interpretation of section 90C at the heart of it, one might have expected the Electoral Commission, which claims that the Supreme Court interpretation was always its view, to have updated its guidance accordingly. It did not do so for 2017. Even after the Supreme Court judgment of July 2018, one might have expected the new interpretation, which the Electoral Commission claims, again, to have supported throughout, to have found its way into the new guidance for local elections for 2019, published just two months ago. It did not.
In response to my Adjournment debate of 11 February and in advance of this ten-minute rule Bill today, the commission finally published guidance with examples on the vexed question of notional spending—an undated document that accompanied a letter to me of 8 March. This new guidance suggests that unauthorised expenditure becomes an election expense for reporting if there has been active engagement in the spending activity so that the “made use of” threshold is reached. It cannot be right that somebody’s liberty, reputation and livelihood can be at stake based on three words and a potential prosecutor’s interpretation of a candidate’s knowledge or otherwise of an activity that was not authorised.
The commission offers six examples in its new guidance, which, I am sorry to say, falls very short of helping. Example 5 suggests that a national party battle bus carrying the party leader would not be a candidate spend if the candidate refused to engage with the party leader and refused to meet them. If the party leader says nothing more than “Vote Conservative” or “Vote Labour”, for instance, this would be national party spend under the PPERA, but if the party leader mentions the candidate’s name while in the constituency, the leader might be committing a section 75 offence—and do not forget that that is an imprisonable offence. My right hon. Friend the Prime Minister might want to listen to that.
At example 6, if the local candidate agrees to join the party leader battle bus event and their name is mentioned, the commission suggests that an amount of notional spend must then be reported in the candidate spending return. Might that spending apportionment assessment be per word, or time-based—and, realistically, could the candidate have any control over what a party leader might say? Can anybody really imagine the implications for a candidate’s—potentially a new candidate’s—standing within their party of a refusal to engage with a party leader visiting their constituency? I am afraid that these examples highlight very clearly how removed from reality the commission is.
The Electoral Commission will suggest that any change to section 90C might lead to mischief if refusal to authorise would permit or encourage election-related spending to fall outside of account. There is already extensive sanction within section 75 of the RPA 1983 that would discourage such activity, as the person spending would face criminal prosecution and would be highly unlikely to play a part in such a planned deception. So the commission’s fears are unfounded. This Bill would make minor changes to section 90C to take away the ambiguity of the July 2018 Supreme Court judgment. The Lord Justices’ judgment has to be the right one. The Court’s status as the highest court means that it must be given the wording of the law as it stands. The question this House must now consider was whether the words previously agreed during the passage of the RPA 1983 represent the intention of Parliament and its drafters. I say that they do not.
Do Members in this place ever leave a lasting legacy by their activities here? The reason I promote this Bill is to protect current colleagues across this House, colleagues yet to come and councillors yet to face election. The desire to offer oneself for public service should not come with a threat to one’s liberty, reputation and career. I commend the Bill to the House.
Question put and agreed to.
That Craig Mackinlay, Paul Farrelly, Alex Chalk, Sir Peter Bottomley, Mr Mark Harper, Frank Field, Gareth Johnson, Mr Jonathan Lord, Jim Shannon, Anna Soubry and Bob Stewart present the Bill.
Craig Mackinlay accordingly presented the Bill.
Bill read the First time; to be read a Second time on Friday 22 March and to be printed (Bill 357).
Business of the House (Today)
Motion made, and Question proposed,
That, at this day’s sitting, the Speaker shall put the questions necessary to dispose of proceedings on the motion in the name of the Prime Minister tabled under section 13(1)(b) of the European Union (Withdrawal) Act 2018 not later than 7.00pm; such questions shall include the questions on any amendments selected by the Speaker which may then be moved; the questions may be put after the moment of interruption; and Standing Order No. 16 (Proceedings under an Act or on European Union documents) and Standing Order No. 41A (Deferred divisions) shall not apply.—(Iain Stewart.)
I notice that this motion is debatable until any hour, subject to a business of the House motion at 7 o’clock. I can assure the House that it is not my intention to speak at that length, but this is very important. We are discussing this afternoon a motion that could determine the nation’s future for a generation or more, and we are expected to do it in just under five hours. I accept that every moment I speak reduces that time, but it is none the less relevant to do so.
This matter is of overwhelming importance to our future. It will determine the basis of our relationship with the European Union, and it may potentially have an effect on the whole basis of the United Kingdom. It seems to me that five hours is not only not enough, but it is not wise. The whole process with which today’s motion has been brought forth is not wise. There is an element of bounce and of theatre. We heard yesterday that a plane was waiting in the airport, fuelled for the Prime Minister. That is very dramatic and exciting, but it is not necessarily right for good government.
What we want is the ability to discuss things judiciously and debate them thoroughly, and squeezing a quart into a pint pot is fundamentally unwise. It also does not help the Government to achieve what they wish to achieve, which is a majority in the vote at the end of today’s proceedings, because if people feel that they have been bounced, hurried and harried, their natural instinct is not necessarily to cave in, but to stiffen their resolve and see how the cards fall.
The Government would be wise, even at this late stage, to allow an extra day for the debate, to ensure that Members are not limited to three-minute time limits at the end of the day but can discuss this matter as fully as it deserves and—dare I say?—as the nation expects, because the nation expects us to consider its future carefully. Although I will not seek to divide the House, I think that this allocation of time motion is misguided, and more time should be provided for debating something of such fundamental importance.
I am most grateful to the hon. Gentleman, and I note what he says about having no intention to divide the House. At least as importantly, I note, for the benefit of the House, that no amendment to the motion has been tabled, including by the hon. Gentleman.
Question put and agreed to.
European Union (Withdrawal) Act
[Relevant documents: Statement that political agreement has been reached pursuant to section 13 of the European Union (Withdrawal) Act 2018, including Instrument relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Authority, Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol, and Joint Statement supplementing the Political Declaration setting out the framework of the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland; Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom pursuant to section 13 of the European Union (Withdrawal) Act 2018; and Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community pursuant to section 13 of the European Union (Withdrawal) Act 2018.]
I can inform the House that I have not selected any of the amendments.
I beg to—[Interruption.] You may say that, but you should hear Jean-Claude Juncker’s voice as a result of our conversation. I beg to move,
That this House approves for the purposes of section 13(1)(b) of the European Union (Withdrawal) Act 2018 the following documents laid before the House on Monday 11 March 2019:
(1) the negotiated withdrawal agreement titled ‘Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’;
(2) the framework for the future relationship titled ‘Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom’;
(3) the legally binding joint instrument titled ‘Instrument relating to the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community’, which reduces the risk the UK could be deliberately held in the Northern Ireland backstop indefinitely and commits the UK and the EU to work to replace the backstop with alternative arrangements by December 2020;
(4) the unilateral declaration by the UK titled ‘Declaration by Her Majesty’s Government of the United Kingdom of Great Britain and Northern Ireland concerning the Northern Ireland Protocol’, setting out the sovereign action the UK would take to provide assurance that the backstop would only be applied temporarily; and
(5) the supplement to the framework for the future relationship titled ‘Joint Statement supplementing the Political Declaration setting out the framework for the future relationship between the European Union and the United Kingdom of Great Britain and Northern Ireland’, setting out commitments by the UK and the EU to expedite the negotiation and bringing into force of their future relationship.
It has been eight weeks since this House held the meaningful vote on the Brexit deal. On that day, Parliament sent a message: the deal needed to change. In response, the Government have worked hard to secure an improved deal that responds to the concerns of this House. I took the concerns of this House about the backstop to the EU and sat down with President Juncker and President Tusk. I spoke to every single EU leader, some on multiple occasions, to make clear to them what needed to change. My right hon. Friend the Secretary of State for Exiting the European Union worked tirelessly with his opposite number, Michel Barnier. My right hon. and learned Friend the Attorney General engaged in detailed legal discussion with his counterparts in the European Commission. The result of this work is the improved Brexit deal that is before the House today. I will go on to explain in detail what has improved about the deal since January and why I believe it deserves the support of every Member this evening.
Is not one of the problems the House faced in the previous session with the Attorney General that we were seeking legal answers to what are essentially political questions, and the political question we now face is that if we do not pass this motion, we stand to lose Brexit in its entirety?
The right hon. Gentleman makes a very important point. A lot of focus has been put on legal changes, and I will come on to the fact that there are legally binding changes as a result of the discussions since the House’s vote on 29 January, but he is absolutely correct—the danger for those of us who want to keep faith with the British public and deliver on their vote for Brexit is that if this deal is not passed tonight, Brexit could be lost.
My right hon. Friend may have slightly lost her voice, but is it not true that were we to have a second referendum, 17.5 million people would have lost their voice?
Yes. My hon. Friend will not be surprised, given what he has heard me say from this Dispatch Box, that I entirely agree with him. I believe it is absolutely imperative that this House meets the decision taken by the British people in June 2016, that we deliver on the referendum and that we deliver Brexit for the British people. As I say, there is a danger that with a failure to agree a deal we could end up in a situation where we have no Brexit at all.
Jean-Claude Juncker was very clear in his press conference yesterday, sitting beside the Prime Minister, that this is the end of the road for negotiation—there is no further negotiation from here. Do the Government completely accept that, and therefore what happens if the motion is defeated tonight?
The hon. Gentleman is absolutely right; that is what Jean-Claude Juncker said in his press conference. It is what he had made clear to me and to Ministers. It is what other leaders have made clear as well. Tonight, Members of this House face a very clear choice: vote for and support this deal, in which case we leave the European Union with a deal—I will go on to explain why I think it is a good deal—or risk no deal or no Brexit. These are the options.
If Members will bear with me, I will take a further couple of interventions and then try to make some progress, as I am only two pages into my speech.
The Prime Minister will know that I did not support the withdrawal agreement at the last vote, and today I will support it unenthusiastically—forgive me, Prime Minister—because I completely agree with her that there is a danger that Brexit will be lost. There do not appear to be the votes in this House for no deal, but there certainly seem to be the votes for an extension of article 50. Neither of those options would deliver Brexit; they would frustrate and delay it and possibly stop it altogether. The main reason I am supporting the Government tonight is that there has been a definitive, material legal change on the backstop, which is that if the European Union acts in bad faith, the UK can permanently or temporarily remove itself.
My hon. Friend is absolutely right. I will come on to address that point a little later in my speech, but it is very clear. We have already had a vote in this House that said no to no deal, and those who want genuinely to deliver Brexit need to recognise that if this deal does not go through tonight, the House risks no Brexit at all.
The Prime Minister should spell it out to the House that if we do not agree a deal tonight, all the arguments that we have heard, including the Attorney General’s advice on the backstop, become academic. We will not even enter into the implementation period and begin work on the alternative arrangements to deal with the backstop if we do not get a deal. We have to get a deal to go into the implementation period and discuss alternative arrangements until Christmas next year before we even contemplate a backstop. Will she confirm that we need a deal tonight?
I thank the hon. Lady. She has set it out very clearly for the House, and I am sure every Member of this House will have heard what she has said about that.
Will the Prime Minister give way?
No, I said I would make further progress.
First, I want to remind the House of the core elements of the deal on which these improvements build. The full reciprocal protection of the rights of EU citizens in the United Kingdom and of UK citizens elsewhere in the EU—delivered by the deal. The implementation period, which the hon. Member for North Down (Lady Hermon) has just referred to, to give everyone, especially businesses, the time to adjust and to eliminate a cliff edge when we leave—that implementation period is delivered by the deal. The full control over taxpayers’ money that comes from ending vast annual membership payments to the EU—delivered by the deal. The end of free movement and its replacement with a skills-based immigration system—delivered by the deal. The end of European Court of Justice jurisdiction in the UK, the end of the common agricultural policy for farmers, the end of the common fisheries policy for our coastal communities—all of these are delivered by the deal.
Will the Prime Minister give way?
Yes, in a moment.
The closest possible economic relationship with our nearest neighbours outside the single market and the customs union, with our businesses able to trade freely and without any tariffs, quotas or rules of origin checks; protection for the just-in-time supply chains that provide the livelihoods of millions of families; the ability to strike our own free trade deals around the world—all delivered by the deal. The closest security partnership between the EU and any third country, so our police and security services can keep on keeping us safe in a world that contains many dangers—delivered by the deal.
By doing all of these things, the deal says and does something even more profound: it sends a message to the whole world about the sort of country the United Kingdom will be in the years and decades ahead. To our friends and allies who have long looked up to us as a beacon of pragmatism and decency, and to those who do not share our values and whose interests diverge from ours, it says this: the UK is a country that honours the democratic decisions taken by our people in referendums and in elections.
Before the Prime Minister continues with this Britannic hyperbole, can she tell me what changes to the agreement have come about that were sought by the devolved Governments in Scotland and in Wales, or were there none at all?
As the hon. Gentleman knows, the devolved Government in Scotland want to ensure that we stay in the European Union. That is not a position that was taken by the British people, and I believe, as I have just said, that we should honour democratic decisions taken by the people.
As the Prime Minister will recall, I voted against the withdrawal agreement in January, but I am very pleased that she and the Attorney General have been able to achieve the concessions to the withdrawal agreement. What my constituents and my businesses want is certainty, and they want the certainty that the Prime Minister will not give in to the Scottish National party’s demand for a second referendum. Does she agree that this deal gives the country the certainty that my businesses and constituents need?
I am very happy to give my hon. Friend that certainty. As I say, I believe that we should be delivering on the vote of the British people in 2016, but I also believe it is important that we give businesses, as my hon. Friend has said, certainty for their future. There is only one certainty if we do not pass this vote tonight, and that is that uncertainty will continue for our citizens and for our businesses.
May I ask a question of the Prime Minister about the unilateral declaration? I thank her for listening, as I have been trying to make this case for the past two months. There was a question I put to the Attorney General that I think has now been answered. Am I right in saying that the unilateral declaration states that there is nothing to stop the United Kingdom leaving the backstop if talks break down? It is a very clear unilateral statement: if talks break down, am I right in saying that the EU has to prove good faith? It is a unilateral declaration, and we do not have to use the word “conditional” because the EU has not objected, and if we lay this declaration at the time of ratification, it is binding on the EU.
One of the key elements in relation to what my hon. Friend has said is that this unilateral declaration has not been objected to by the European Union. That is what ensures its legal status and its legal basis. As he says, what we say in there is that, in the circumstances in which it is not possible to agree or arrange the future relationship with the European Union,
“the United Kingdom records its understanding that nothing in the Withdrawal Agreement would prevent it from instigating measures that could ultimately lead to disapplication of obligations”
in relation to the protocol.
I will make further progress before I give way again.
We are a country where passionately held views do not stop us making compromises to achieve progress. We are a country that values both our national sovereignty and the unbreakable bonds of a shared history and an interdependent future that connect us to our friends and neighbours. A bad deal would be even worse than no deal, but best of all is a good deal, and this is a good deal.
Members acknowledged many of the benefits delivered by the deal, but none the less rejected it in January, so let me now set out what we have added to the deal on the table since the last vote. On the rights of EU citizens, we have waived the application fee, so that now there is no financial barrier for any EU nationals who wish to stay. As I have said before, they are our friends, our neighbours and our colleagues. They have added much to our country, and we want them to stay.
On the rights of workers and on environmental protections, assurances about the Government’s firm intentions were not enough, so we have committed to protecting those rights and standards in law. If the EU expands workers’ rights, we will debate those measures here in this Parliament, and this House will vote on whether we want to follow suit. This Parliament has already set world-leading standards, and after we leave the EU, we will continue to do so.
I hope that the right hon. Lady’s voice lasts to the end of her speech. The Democratic Unionist party has just announced that it is not supporting her deal, and her own European Research Group has announced that it is not happy with the deal. Does she not now think that she should have reached out across parties from the beginning to seek a proper consensus across this country to give us a chance of moving forwards? Will she now admit that her strategy has comprehensively failed?
There have been alternative approaches that have been proposed to the deal that is on the table. Some were proposed the other week by the Leader of the Opposition, and that was comprehensively rejected by this House. We have continued to work with Members across this House and we continue to work with Members across this Chamber to understand the issues that need to be addressed, and what we have done on workers’ rights is one example of exactly that work.
I am going to make some progress.
I know that, for many Members on this side of the House and also for the DUP, the biggest concern is about a more difficult issue that defies simple solution—the Northern Ireland backstop. It is a complex issue that reflects the complex history of these islands, and the long and difficult road that successive generations of British and Irish people have walked down to reach the peace and stability we have known for the last 20 years.
I have talked in detail about the backstop many times in speeches and statements in this House and in Northern Ireland. I have explained why an insurance policy to guarantee no hard border between Ireland and Northern Ireland is necessary. I know that there are a number of concerns about how it might operate—none greater than the fear that the EU might seek to trap us in it indefinitely.
Along with the Attorney General and the Brexit Secretary, I fought hard and explored every idea and avenue to address these concerns, including a time limit, a unilateral exit mechanism or the replacement of the backstop with alternative arrangements. However, the House knows how complex negotiations work and, ultimately, we have to practise the art of the possible, and I am certain that we have secured the very best changes that were available. As the hon. Member for North Down made clear earlier, it has been absolutely clear that this is the deal.
I thank the Prime Minister for giving way, and she knows why I will not be voting for the deal tonight—because it will make my constituents poorer and less safe. However, on the specific issue of the legal advice from the Attorney General on the complex issue of the Northern Ireland backstop, could she confirm whether she was given preliminary advice on Saturday or Sunday that he was unlikely to be able to change his advice in the way she perhaps wished him to?
Obviously, the Attorney General has been involved in the discussions that we have been having with the European Union, but at the end of the day it is up to him to make his legal opinion and to give his legal advice to this House, which is exactly what he has done.
I thank my right hon. Friend for giving way. As she has just said, this is the deal. Is it not the case that if Parliament votes against this deal and then, in the forthcoming days, votes for an extension, that would not only be incredibly bad for businesses, which desperately want an end to this uncertainty, but risk putting the ball in the EU’s court in determining the terms of that extension?
My hon. Friend is absolutely right. First, all that that would do is extend the uncertainty. Secondly, it is not a guarantee that any extension would be agreed by the European Union or that it would agree an extension in the terms in which the United Kingdom asked for it. An extension has to be agreed by all of the parties, and that includes the 27 members of the European Union.
I thank the Prime Minister for giving way, and I will give her a moment to get another cough sweet from the Chancellor. It is clear—we can see this from the Conservative Benches—that the Prime Minister is going to lose tonight, and to lose badly, which will drag this place, and jobs and businesses, over the edge, with the threat of a no deal. Is not the responsible thing to do now to seek an extension so that we can have some kind of way out of this calamity?
The way out of the situation we are in is to have faith with the British people and to vote for the deal this evening, which gives them what they voted for in the referendum.
I thank the Prime Minister for giving way. As she knows, many of us would have preferred a circumstance where we could unilaterally have withdrawn from this agreement, and that does not apply after what the Attorney General said earlier. That means that we are going into a circumstance where there will be a deal of trust over how we resolve the backstop and, in particular, over whether the alternative arrangements prove acceptable to the European Union and the Republic of Ireland. Some of those alternative arrangements have previously been rejected by the Union and the Republic of Ireland. Has the Prime Minister detected any change in mood on the part of the Union and the Republic with respect to a constructive outcome to dealing with the Northern Ireland border?
Yes. What has been obvious is a change in willingness from the European Union to be actively working on those alternative arrangements. As my right hon. Friend has heard me say before, it was not possible to complete that work, with the timetable we currently have, pre 29 March. But the firm commitments that have been given in the documents we have negotiated now with the European Union show that willingness on its side to be actively working with us to find those alternative arrangements and to define them in a way that means that the backstop can indeed be replaced.
No, I am going to make some progress.
There are three elements to the improved deal on the backstop, and I want to go through all of those. The first is a joint instrument—not a further exchange of letters, but something with comparable legal weight to the withdrawal agreement. It provides a new, concrete, legally binding commitment that the EU cannot act with the intent of applying the backstop indefinitely. Doing so would breach the EU’s obligations under the withdrawal agreement and could be challenged through arbitration. Were the EU to be found in breach, the UK could ultimately choose to suspend the backstop altogether, with that suspension lasting unless and until the EU came into compliance with international law. In these circumstances, we could also take proportionate measures to suspend the payments of the financial settlement.
Just as important, the joint instrument gives a legal commitment that whatever replaces the backstop does not need to replicate it, providing it meets the underlying objectives of no hard border between Northern Ireland and Ireland.
I thank the right hon. Lady for giving way. She is talking about the EU and suspending. She talked earlier about bad faith and about the UK being a beacon across the world, and she said that it sticks to its deals. However, does she remember—they will particularly want her to remember this point in Europe—who it was who, when 28 countries went to Salzburg in November and struck a deal, later ratted on the deal, leaving the 27 high and dry? Was it her Government?
First, the hon. Gentleman’s history is a little wrong. Actually, the withdrawal agreement and the political declaration on the future framework were not agreed in Salzburg; they were agreed later last year, in November, in Brussels. Secondly, he asks, who was it who went back on the deal? Was it the Government? No, the Government voted for the deal. He voted against it. So, on that point, if he wants to look for an example of bad faith—look in the mirror!
I am grateful to the Prime Minister for giving way. She referred a moment ago to the possibility of the UK suspending the operation of the Northern Ireland protocol. In his legal advice, which was published today, the Attorney General talks also about measures to disapply the provisions of the protocol. Can she tell the House whether suspension, which has to be temporary under the withdrawal agreement, and disapplication are one and the same thing, or are they different?
No, they are not one and the same thing. Also, if we look at the arrangements in the withdrawal agreement, as supported by the new instruments that we have negotiated, it is the case that if suspension takes place over a period of time, such that it is then obvious that the arrangements were no longer necessary, they would not have been in place and everything would have been operating without them, then a termination of those arrangements is possible within the arrangements here.
Some colleagues were concerned that the political declaration says that the future relationship will build and improve on these arrangements. We now have a binding commitment that whatever replaces the backstop does not have to replicate them. The instrument also contains commitments on how the UK and the EU intend to deliver the alternative arrangements. Immediately after the ratification of the withdrawal agreement, we will establish a specific negotiating track on alternative arrangements to agree them before the end of December 2020.
The instrument also entrenches in legally binding form the commitments made in January’s exchange of letters between Presidents Tusk and Juncker and myself. These include the specific meaning of best endeavours, the need for negotiations to be taken forward urgently, the ability to provisionally apply any agreement, which reduces the risk of us ever going into the backstop, and a confirmation of the assurances made to the people of Northern Ireland.
I am grateful to the Prime Minister for giving way. I was puzzled by her claim that the joint instrument is of comparable legal weight to the withdrawal agreement. I am sure she will be aware that, as a matter of international law, the withdrawal agreement is a treaty. The joint instrument is not a treaty; it is merely what is known as a document of reference, which can be used to interpret the withdrawal agreement. Would the Prime Minister therefore care to rephrase her assertion that the joint instrument is of comparable legal weight to the withdrawal agreement, because that is simply wrong as a matter of law?
Obviously, the withdrawal agreement is an international treaty. This is a joint instrument, which sits alongside that international treaty and which does have the same standing, in that, in any consideration that is given to any aspect of that withdrawal agreement, this will be part of that consideration, so the effect is the same, as I indicated earlier.
It does need to be said that most of us, when we are unwell, can take to our beds. It is absolutely noticed by everybody in this House that this Prime Minister simply battles on, and that is appreciated. Having said that, I fear that this agreement is too little, too late. The Prime Minister talked about compromise. Would she agree and confirm that, two years ago, I and others who sit behind her told her that there was a majority—a compromise— across this House for the single market and the customs union that would deliver on the referendum, secure the problem with the border and do the right thing for business? Would she confirm that she rejected all of that and that the difficulty has been her inability to move away from her red lines?
The point is that we have to look at what it was that the British people were voting for when they voted in the referendum in 2016. We also have to look at the general election manifesto that the right hon. Lady and I both stood on, which was very clear in relation to those matters and to the customs union and the single market. We have put forward proposals that enjoy some of the benefits of a customs union, such as no tariffs and no rules of origin checks, but in a way that delivers an independent trade policy. That is what people want to see and that is what we will be delivering.
I will just make a little more progress before I take any more interventions. I have been quite generous already.
I want to say a word about Gibraltar. The documents confirm the understanding reached between the UK and the EU on the interpretation of article 184 of the withdrawal agreement as regards the territorial scope of the future relationship. We will always stand behind British sovereignty for Gibraltar, and the UK Government negotiate for the whole UK family, including Gibraltar.
The second element we have negotiated is a UK-EU joint statement in relation to the political declaration.
Will the Prime Minister give way?
I will give way in a few moments. I will just make a little more progress.
The second element, the statement in relation to the political declaration, sets out a number of commitments to enhance and speed up the process of negotiating and bringing into force the future relationship. There is a new commitment that the negotiating track on alternative arrangements will consider not only existing facilitations and technologies, but also those emerging.
I thank the Prime Minister for giving way on that point. She said earlier that she thought there had been a change in attitude on looking at different ways to deal with the Northern Ireland-Irish border. Does she agree with me that if the Irish Taoiseach did what the previous Irish Taoiseach did, which was to allow the civil servants to meet with our civil servants, and there really was good will and intention, the Taoiseach would now say that their civil servants should start that process now and not wait until we have gone much further along the line?
We are happy at any stage to sit down with the Irish Government and talk to them about the arrangements that could be in place in relation to the Northern Ireland border with Ireland.
On Gibraltar, can the Prime Minister confirm that well over 90% of the people of Gibraltar voted to remain in the European Union, and that if her deal goes down tonight it will be essential that Gibraltar continues to have as close a relationship as possible with the European Union single market?
The hon. Gentleman is right about the vote. Significantly, the last time the people of Gibraltar were asked whether they wanted to continue their relationship with the United Kingdom they were very clear, overwhelmingly, that that was what they wanted. That is why we are clear that we negotiate on behalf of our whole UK family. The deal on the table tonight, the deal that Members will be voting for, delivers the close relationship for the future that the hon. Gentleman has been talking about. It delivers on the result of the referendum, but it also recognises the importance of a close relationship for us for the future with the European Union.
I am going to make further progress.
Thirdly, alongside the joint instrument on the withdrawal agreement, the United Kingdom Government will make a unilateral declaration relating to the temporary nature of the backstop. Such declarations are commonly used by states alongside the ratification of treaties. The declaration clarifies what the UK could do if it was not possible to conclude an agreement that superseded the protocol because the EU had acted contrary to its obligations. In those circumstances, the UK’s understanding is that nothing in the withdrawal agreement would prevent us from instigating measures that could ultimately lead to the disapplication of our obligations under the protocol. Were we to take such measures, the UK would remain in full compliance with its obligations under the Belfast-Good Friday agreement and to avoid a hard border on the island of Ireland.
I am very grateful to the Prime Minister for giving way. I really do want to know why she has consistently sought to get a deal that satisfies hardliners on her own side, rather than reaching out across the Chamber to get an agreement that would be a softer Brexit, but which would protect the Good Friday agreement in Northern Ireland more than her current deal does.
First of all, if as the hon. Lady thought I was placating everybody on my side of the House, I do not think the deal would have been rejected in the first place, so I think she is rather wrong on that. Secondly, I did reach out to the Labour party Front Bench. I had a meeting with the Leader of the Opposition and there was one meeting between the Chancellor of the Duchy of Lancaster and the shadow Secretary of State, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer). We offered other meetings and voice came there back none.
I will make some further progress.
There are considerable improvements on the deal the House considered eight weeks ago. In particular, there were three key issues raised by my hon. Friend the Member for Altrincham and Sale West (Sir Graham Brady). On the question of giving legal status to the assurances on the backstop, the joint instrument is a legally binding text at the same level as the withdrawal agreemen