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Attorney General

Volume 664: debated on Thursday 3 October 2019

The Attorney General was asked—

EU (Withdrawal) (No. 2) Act: Implementation

1. What discussions he has had with Cabinet colleagues on the implementation of the European Union (Withdrawal) (No. 2) Act 2019. (912520)

I cannot, as the hon. Lady will know, comment on the content of Cabinet discussions, but she will understand that I regularly meet ministerial colleagues to discuss important issues of common interest. It would be inappropriate for me to comment on the detail of those discussions, and I am bound by the convention that neither the fact nor content of Law Officers’ advice is disclosed outside of the Government. I make it clear to the hon. Lady that the Government will obey the law, the Prime Minister is subject to the law, and this Government will comply with it.

Notwithstanding all that, I am going to ask the Attorney General a nice yes-no question. The Act requires the Prime Minister to ask for an extension unless Parliament has agreed a withdrawal agreement or agreed to leave without one, so will the Attorney General confirm that, if Parliament has not done either of those things, the Prime Minister would be acting unlawfully if he nevertheless took us out of the EU on 31 October? Yes or no?

If Parliament agrees a deal, having had one brought before this House, that fulfils one of the conditions that means that no extension has to be sought.

Hypothetically speaking, if the Government were seen to be breaking the law, who would arrest the Prime Minister? Would it be the Met?

I do not think it is for me to comment on ridiculous speculations and hypotheticals of that kind, but it is good to see the hon. Gentleman looking calmer this morning.

Will the Attorney General confirm that the Government can both comply with the law and leave the EU without a deal on 31 October?

When asked, the Attorney General said that his Government would be adhering to the Benn Act. A day later, when asked by me and others the Prime Minister prevaricated until the end. But when he was asked by the hon. Member for Edinburgh South (Ian Murray) whether he would comply with the law, the Prime Minister’s answer was a simple and quite astonishing no. Given the Attorney General’s previous answers this morning, will he confirm whether the Prime Minister was wrong?

I have not seen the response to which the hon. Gentleman refers, but I can certainly confirm that the Government will comply with the law. I am not convinced that the Prime Minister said anything contrary to that; I would have to look at Hansard.

I have the European Union (Withdrawal) (No. 2) Act 2019 in front of me, so perhaps the Attorney General can confirm his interpretation of it. The Act is clear that, if this House has not approved a deal or if it has not approved leaving with no deal, the Prime Minister

“must seek to obtain from the European Council an extension”

in the terms set out in the Act. Will the Attorney General confirm that that is what this Act of Parliament requires?

The hon. Gentleman has read it out, and he does not need any confirmation from me. He is a superbly competent lawyer—[Interruption.] So I am told by others on his side of the House. The reality is that the Government will comply with the law.

I am afraid that confirmation is required from the Attorney General. Let me explain why. We keep being told that the Government will comply with the law, yet the Prime Minister goes around saying that he would rather be dead in a ditch than apply for the extension that he is required to seek under the Act. Does the Attorney General not realise that the Government’s ambiguous position towards the rule of law is damaging our justice system, our society and our international standing? Why does the Attorney General just stand by and let that happen?

Prorogation: Supreme Court Judgment

2. What recent discussions he has had with Cabinet colleagues on the implications for Government policy of the Supreme Court judgment of 24 September 2019 on the Prorogation of Parliament. (912521)

3. What recent discussions he has had with Cabinet colleagues on the implications for Government policy of the Supreme Court judgment of 24 September 2019 on the Prorogation of Parliament. (912523)

9. What recent discussions he has had with Cabinet colleagues on the implications for Government policy of the Supreme Court judgment of 24 September 2019 on the Prorogation of Parliament. (912529)

I cannot comment on the content of Cabinet discussions but, as I told the House last week, the judgment sets out the definitive and final legal position on the advice given to Her Majesty on the Prorogation of Parliament. We are carefully and deliberatively considering the implications of that judgment. We need some time to do it, but a Queen’s Speech is necessary to bring forward a fresh legislative programme, and a short Prorogation, as announced yesterday, is necessary—we are advised to this effect by the parliamentary authorities—for the Queen’s Speech.

In the light of the Supreme Court’s judgment and the vital role it identified for this House of scrutinising the Executive, what discussions is the Attorney General having with Cabinet colleagues to ensure that we have sufficient time to discuss the proposals the Prime Minister is due to bring forward? How much time will we actually have to debate them?

I know that those matters are being actively considered. I am sure they will be considered in consultation and through the usual channels. As much time as conceivably can be made available will be made available to debate those very important matters. The Prime Minister is making a statement later this morning, and the Government are more than conscious—acutely conscious—of the need for all Members of this House to scrutinise any deal that may be agreed.

Eight days ago, the Attorney General told the House, in response to a question from the hon. and learned Member for Edinburgh South West (Joanna Cherry), that he would consider disclosure of his legal advice on the unlawful Prorogation of Parliament. Can he now confirm that he will do the right thing and release his advice before Parliament is prorogued next week?

I have been considering that question. I am still considering it. I have not reached a conclusion. When I have, I will make sure the hon. Lady is informed.

If the Attorney General believes in the law, can he confirm that he has discussed with the Prime Minister and the Chancellor of the Duchy of Lancaster the electoral offences committed by Vote Leave?

May I tell the hon. Gentleman that I do believe in the law and I have spent 37 years of my life adhering to those professional values? As for the advice I may or may not have given to any member of the Government, he will know I am bound by the convention. I cannot tell him whether I have. I understand the purport of his question, and I do not criticise him for it in the least, but I regret that I cannot help him as to the content of any advice I have given.

I urge the Attorney General to reflect that departing from the norm that Law Officers’ advice is not disclosed should be undertaken only with great care, because of the implications for all future Law Officers and all future advice to Government. Is not the rub of this issue simply this: that, as the President of the Supreme Court said, the circumstances that gave rise to the judgment were a “one off”; the Court was asked to rule on a novel point on which, up until then, legal opinion had varied; it has made a ruling; and the Government accept and will abide by the ruling, as they should with any ruling of our independent courts?

I completely agree with both parts of my hon. Friend’s question. Plainly, the Law Officers’ convention is not a question of personal ownership by any particular Attorney General. It is a long-standing convention that protects all Governments on often extremely sensitive, complex and difficult subjects, sometimes affecting the most important interests of this country. Of course I agree that the Supreme Court’s judgment must be respected. It is final and binding as a matter of law, but it is peculiar to its circumstances.

Our courts are scrupulously impartial and independent. In the aftermath of the Supreme Court judgment, some unwise voices have suggested that we ought to move to some sort of US-style process of appointment. Does the Attorney General agree that that would be extremely unwise, and will he confirm that there is no prospect of Her Majesty’s Government proceeding down that route?

My hon. Friend, as ever, from a background of practice in the law, feels, as I do, that those kinds of hearings—certainly US-style hearings—would be a regrettable step for us in our constitutional arrangements. The Government have no current plans to do so, but it is fair to say that the implications of the judgment and the continuing development of our constitutional arrangements will no doubt receive, properly, the intense scrutiny of this House.

Judicial Appointments Process

4. What recent discussions he has had with the Secretary of State for Justice on the judicial appointments process. (912524)

The priorities of my office are set out in the published business plan for this year, but on the UK’s withdrawal—I beg your pardon, Mr Speaker, I am answering the wrong question. I also beg the hon. Gentleman’s pardon—[Interruption.] Nobody noticed probably, the answers being the same. I can only plead that I am getting your cold, Mr Speaker, and was up far too late this morning.

Again, I am not going to comment in detail on the content of Cabinet discussions, but the Supreme Court judgment undoubtedly represents a significant development in our constitutional arrangements. As I said the other day, it is important to take stock of the implications of that judgment not in the immediate aftermath of a ruling, but deliberately, carefully and thoughtfully. We should not jump to hasty conclusions. The UK’s exit from the EU will have profound ramifications for our constitutional arrangements. As I have said many times, I think that requires a coherent, careful examination, possibly through some formal channel, of the means by which we are to be governed after we leave the European Union. I am not enthusiastic about the prospect of parliamentary scrutiny of judicial appointments and, as I said in answer to an earlier question, the Government have no current plans to introduce such an appointment system.

I am glad that the Attorney General eventually reached the matter of judicial appointments. That was very reassuring, not least for the hon. Member for Linlithgow and East Falkirk (Martyn Day).

I am grateful for the Attorney General’s answer, and I heard his response to the previous question, but can he categorically rule out any changes that could result in a political appointment system, as I think that is an important point?

The Government have no plans to introduce any such appointment system. The only thing I would say is that this House must have the right to determine the constitutional arrangements of this country, and of course parts of that will have to reflect on the role of the Supreme Court and its constitutional functions. But I agree with him that a US-style appointment system would be a wholly retrograde step.

Having had responsibility for a time for judicial appointments, including approving those of the current Lord Chief Justice and the current President of the Supreme Court, may I ask my right hon. and learned Friend to endorse the fact that the track record of the Judicial Appointments Commission shows that it makes its recommendations, having looked at the available candidates, with the utmost thoroughness, scruple and genuine independence? We as a House and a country would cast aside that independence, and instead make the appointment of judges the plaything of a temporary party majority in this House, at our peril.

I could not have put it better than that. I agree with every word that my right hon. Friend said. As I have had cause to say in the House only recently, we have one of the finest judiciaries in the world. Throughout the world, they are beacons of impartiality and independence, and the House should do all it can to promote, protect, and preserve those values. I agree that a US-style process of appointment would not be in the interests of this country and I do not think I can improve on the way he put it.

Unduly Lenient Sentence Scheme

The unduly lenient sentence scheme is an important avenue for victims, family members and the general public to ensure that justice is delivered in the most serious cases. That is why the Government have announced an extension to the scheme to cover further child sexual abuse offences such as those that involve the taking, distributing and publishing of indecent images of children. In 2018, the Law Officers referred one fifth of all eligible cases that were considered by my office to the Court of Appeal and, of those, 73% were found to be unduly lenient.

I am grateful to the Solicitor General for his answer. Can he set out how the new announcement on unduly lenient sentences will help victims of stalking?

The unduly lenient sentences scheme is extremely effective. It has now been in existence for some 30 years. It applies to myriad offences, but we wanted to extend the scheme to include 14 offences of a sexual nature, including child abuse and indecent images. The scheme now includes those and will do so in future. A range of other offences are available for consideration under the unduly lenient scheme that will serve to ameliorate the situation as far as the previous gaps were concerned.

I thank the Solicitor General for his answer thus far. What action is he taking to alert the victims of crimes, as well as the wider public, on the steps they should take to bring the scheme into operation, so that the public will understand that unduly lenient sentences should be a thing of the past?

We are very fortunate in this country to have a judiciary who get it right almost 100% of the time. Some 80,000 sentences were passed last year, and of those only about 100 had to be referred to the Court of Appeal and were found to have been unduly lenient. So they are few and far between, but my hon. Friend is right that victims should be aware of the available options if a sentence has been unduly lenient. The Crown Prosecution Service is doing everything it can to make sure that victims are so informed.

Sexual Offences: Prosecution

6. What recent discussions he has had with the Director of Public Prosecutions on ensuring more effective prosecutions of cases involving rape and other sexual offences. (912526)

7. What recent discussions he has had with the Director of Public Prosecutions on ensuring more effective prosecutions of cases involving rape and other sexual offences. (912527)

10. What recent discussions he has had with the Director of Public Prosecutions on ensuring more effective prosecutions of cases involving rape and other sexual offences. (912530)

I engage with the Director of Public Prosecutions regularly on criminal justice issues, including rape and serious sexual offences. Both the director and I recognise the devastating impact that those horrific crimes have on victims. I met with the director only a week or two ago and again this week. The Crown Prosecution Service and my office have worked closely with criminal justice partners in the ongoing Government review of the response to rape and serious sexual offences.

What reason did the Director of Public Prosecutions give for the dreadful 51% drop in CPS prosecutions in these cases since 2014?

I am disappointed by the figures that the hon. Lady refers to and I appreciate that they are a cause for concern. However, I would emphasise that they are not indicative of a lack of commitment to prosecute by the Crown Prosecution Service, any of its prosecutors or the Director of Public Prosecutions. We believe that a number of factors have contributed to this. They include perhaps a fall in the volume of referrals from the police and an increase in the volume of digital data. We are looking at the situation closely and a review is under way.

There have been reports that the number of reported rapes, sexual assaults and harassment allegations in universities has trebled in the last three years, including worrying reports that universities are trying to carry out their own investigations of the assaults. What role does the Minister think that his Department can play in trying to ensure that those allegations are taken seriously and go through the proper judicial channels?

I have also heard about the increased statistics from universities, and I urge them to look carefully at how they handle those matters. It is a particularly sensitive issue which they should handle with professional assistance. The reality is that we must do everything we can to deal with those allegations immediately, sympathetically and appropriately in all the circumstances. They are devastating allegations and must be dealt with sympathetically and appropriately by universities and by everyone else.

I am alarmed to hear that police forces across the country are demanding highly personal records and data, including health, school and college records and even counselling notes, from potential rape victims before pressing ahead with their cases. Campaigners have long warned that victims will be put off going to the police by that intrusion into their lives. Can the Solicitor General outline what he is doing to combat that?

I thank the hon. Lady for that question. We want victims to have the confidence to come forward and report crimes. I do not want to see anything that disincentivises victims from making proper reports of crimes. The police and the Crown Prosecution Service continue to work with victims groups that specialise in this area, and with the Information Commissioner’s Office when it comes to digital disclosure, to ensure that their approach achieves the necessary balance between the requirement of reasonable lines of inquiry and the victim’s privacy.

No-deal Brexit: Priorities

11. What recent assessment he has made of the effect of the UK leaving the EU without a deal on the priorities for his office. (912531)

The priorities of my office are set out in the published business plan for this year. The UK’s withdrawal from the European Union exercises the interest of my office in supporting the successful delivery of the Government’s objectives. We give legal and constitutional advice within the Government and throughout the Departments. Of course I am engaged in supporting preparations for future international co-operation between Law Officers’ departments and prosecution and other criminal justice organisations.

It would be good to hear the Attorney General recognise the damage that a no-deal Brexit would create and the severe disruption that we know it would create across all Departments, instead of the language that we heard from him last week in the Chamber, when he said that this was “a dead Parliament” and that MPs had “no moral right” to be here. Will he apologise for those comments?

Certainly not. I stand by every one of them. When this Parliament assumes its responsibilities to pass a withdrawal agreement, then I might reconsider them, but certainly not at the moment. We may soon have a chance to assume those responsibilities if we can get a deal from the European Union. I hope then to see the hon. Lady vote for it.

Some of us, however, will stand up for Parliament at all times. I completely respect the right of the Attorney General to his view. This Parliament is entirely legitimate. It is doing its work, it should be expected to do so and no amount of cheap abuse, calumny and vituperation directed at this Parliament will stop it doing its job. That is the way it is, that is the way it will continue to be, that is the way it has to be.

May I ask about extradition? Obviously we in this country rely on being able to extradite people from other countries in Europe to face justice in this country. We have relied on the European arrest warrant but, as I understand it, four or five countries in the European Union have now stated categorically that, if there is no deal, they will not extradite to the UK. How will we make sure that we get people to face justice in this country?

The hon. Gentleman is quite right; there are some countries that will not extradite their own citizens. In those cases it is a case of bilateral discussion with them. There is the existing Extradition Act 2003, but if they will not extradite citizens, there is of course the option of trying them in that country. That is generally the option that those countries offer in connection with their own citizens.

Exactly, and that presents considerable difficulty, as the hon. Gentleman points out. However, we will be having bilateral discussions with those countries to seek to agree specific arrangements with them.