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.
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?
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?
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?
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.]
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?
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.
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.