Illegal Migration Bill

Joanna Cherry Excerpts

Committee stage
Monday 27th March 2023 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

The hon. Gentleman is, of course, expounding a very Anglocentric view of sovereignty, but I will leave that to one side for the moment.

Is it not a legal flaw in the hon. Gentleman’s argument that at least some of the people who come to this country in small boats come not as immigrants but to seek asylum? The United Nations High Commissioner for Refugees says this Bill

“would amount to an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how…compelling their claim may be”.

Does the hon. Gentleman not accept that?

[Sir William Cash]

As I just said, I believe it is very important properly to protect genuine refugees. The problem we have been presented with over the last couple of years or so is that it is blatantly obvious that quite a significant number—I cannot put a precise figure on it, but it is very substantial and runs into the tens of thousands—have a serious case to answer in respect of their status.

[Joanna Cherry]

Unfortunately for the hon. Gentleman, the facts simply do not support what he is saying, because the majority of people arriving in small boats who have had their asylum claim resolved have had their claim granted. That is the evidence.

[Sir William Cash]

That is certainly the case, but it is equally the case that we have 160,000 unresolved asylum cases. It is also true that there is no persecution in France on this account.

As the Government have rightly said, the Labour party voted against the Nationality and Borders Act 2022, wants to scrap the Rwanda deal and opposes the Government’s Bill to detain and remove people swiftly from the UK. This amounts to demonstrating that the Labour party is in favour of open borders and is not on the side of the British people, who want us to deal with this problem.

The current Leader of the Opposition, in an article in Counsel on 9 January 2015, wrote, contrary to what the former Lord Chancellor and Home Secretary said, that the sovereignty of Parliament has nothing at all to do with the Human Rights Act. He clearly does not understand what the sovereignty of Parliament is, or the enactments and case law involved. Quite clearly, the statute itself was not intended to lead to circumstances in which illegal migration is not prevented but almost encouraged, to the profound detriment of practical control over our borders.

I tabled an amendment to the Nationality and Borders Bill in December 2021 that had a clearly expressed “notwithstanding” formula. The amendment was strongly supported by Conservative Back Benchers and would have greatly helped to ensure the flights to Rwanda. With this new Bill, we have a further opportunity to tackle the problem of illegal migration. This Bill is necessary because of the smuggling and criminality of the unscrupulous gangs that exploit migrants and cause death.

In addition, because of the consequences of the failure to control illegal migration, we have endured monumental expenditure of up to £6 million a day, disruption to local services, hotels, health services and social housing, and instances of criminality. It does no good to perpetuate a situation with such adverse consequences for our constituents and our voters, and the Government understand that.

Indeed, I am confident that, when the Bill is enacted, the courts will apply it and court procedures will be adapted accordingly, provided the intention of the words used in the Bill, as enacted, are clear, express and unambiguous, as I propose. It is not appropriate for the current situation to continue to the point where, as I have indicated in the past, the number of illegal migrants is growing exponentially.

My amendments, and further discussion with the Government, are conducive to resolving the issues properly, fairly and reasonably—with an appeal system and other measures, as I shall mention in a moment, and in line with domestic and international law—and to removing the unintended and unexpected legal consequences of the Human Rights Act and the courts’ rules in respect of illegal migration in small boats, which together have led to the breaching of our borders on an unprecedented scale. That is emphatically not in our national interest, and it was not anticipated when the Human Rights Act was originally passed. My amendment would ensure that what Parliament intends actually happens.

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Most concerningly, listed alongside the necessity to be in the “prescribed form”, is a requirement for the application to contain “compelling evidence”. Again, I ask the Minister: does that mean that if the Home Secretary simply decides there is no compelling evidence, it is as if no application has been made at all and, therefore, there is no right of appeal? If that is the case, that means the Secretary of State can simply close down any possibility of a challenge by deciding no application has been made. I would genuinely appreciate clarity from the Minister on that point.

[Joanna Cherry]

The Minister has taken a careful note.

[Stuart C. McDonald]

I notice the Minister is listening very carefully indeed.

Why is there a “compelling evidence” requirement? More importantly, is that not totally inconsistent with the test of real risk? That is the point of amendment 83. The danger is that even a probability of “serious and irreversible harm” will not be enough because of the type of evidence that can realistically be provided in the ludicrously tight timescale provided for.

On timeframes, we have various amendments to challenge the time periods that have been formally set out by the Government. The notion that eight days is enough time for an application is for the birds, as we know from the chaotic processes used during previous attempts to remove people to Rwanda, when many who were served notice barely understood what was happening. Language barriers, difficulties in access to solicitors and legal aid, the requirements of prescribed forms and demands for compelling evidence in the application mean that eight days will never happen. Those processes give rise to the risk that even those who could in theory make a challenge will miss out unjustly.

On that very important point, can the Minister provide clarity on how he will ensure that legal advice is accessible and, importantly, what his Government’s position is on the availability of legal aid? Those are hugely important issues that are not really touched on in the Bill.

Given the ludicrously restricted timeframes, the restrictions on “out of time” claims in clause 44 are frightening. Our amendments from amendment 101 onward seek to challenge that. This time “compelling evidence” of a “compelling reason” for missing the eight-day deadline is required. What on earth does that mean? Is an inability to understand the notice, language difficulties or the impossibility of finding a solicitor sufficient? More fundamentally, are the Government saying it is okay to remove someone who is certainly going to face “serious and irreversible harm” just because they were a few hours late with the paperwork and did not have a decent excuse for that? It makes absolutely no sense.

The seven-day timeframe for appeals to be lodged in clause 47 is equally absurd for all those reasons. Again, how will access to legal advice and legal aid be ensured? Who did the Government consult when putting together that challenging timeframe? Why have the Government chosen to bypass the first-tier tribunal? Why are the Government suggesting using first-tier employment law judges to assess difficult issues of removal and serious harm?

Some will have an even more difficult route to challenge a refusal if the Home Secretary decides that a claim is “clearly unfounded”. The clauses do not seem to make any sense. If, as seems to be the case, to make a valid application someone needs to provide compelling evidence of harm, it is difficult to see how any valid application containing such compelling evidence can be deemed clearly unfounded. Going beyond that, the grounds for appeal to the upper-tier tribunal are, again, objectionably difficult. Just to get permission to appeal, compelling evidence of serious or irreversible harm is required, assessed on the papers with no further right of appeal. Our amendments to clause 43 seek to rectify that.

We object to the Bill instructing the tribunal how to do its work, in particular how to make assessments of fact. Judges—not the Secretary of State—should determine what new matters can be considered, and what evidence and facts are relevant to their decisions. Our amendments to clauses 46 and 47 and various other clauses seek to protect the independence of the tribunal. We object strongly to the ouster clause in clause 48, in particular the restrictions on the supervisory jurisdiction of the Court of Session.

Amendments 100 and 108 seek to challenge restrictions on onward rights of appeal. These are serious and significant issues of profound importance. Removing the oversight of the courts is unacceptable and unconstitutional. We had a well-developed and functioning system of appeals and judicial oversight. The Government should stop dismantling it. Instead, the Bill will leave most people seeking to assert their rights able to do so only after they have been removed. The notion that such challenges can be successfully undertaken from thousands of miles away is absurd.

The fundamental question is, what happens if someone is successful in making a suspensive case? All that clause 45 states is that they cannot be removed; it does not allow them access to the asylum process or any other assessment of their case. They, like tens of thousands of others who cannot be removed simply because there is nowhere to remove them to, will be left in limbo—a limbo that is disastrous for the taxpayer but life-destroying for the individuals involved. A desperate outcome from a desperate Bill.

Finally, although we support almost all the other amendments and new clauses tabled by Opposition Members, we have concerns about new clauses 23 and 25. New clause 23 would require the Secretary of State to use her broad discretion to put in place a fast-track asylum procedure for so-called “low grant-rate countries”. It contains an amazingly wide definition of a low grant-rate country, which would include nationalities where 49% of applicants had successfully sought asylum.

New clause 25 has aspects that are fine, but crucial to what it tries to do are co-operation agreements for the removal of people who have had claims declared inadmissible. However, there is no definition of “inadmissible” separate from the definition in clauses 2 and 4. That goes to the heart of all of the problems with the Bill. We will continue to listen carefully to what is said about those new clauses, but we are concerned that they need further work.

In short, we oppose every aspect of the Bill. We object to the outrageous timeframe for its consideration and to the lack of impact assessment before we debate it. Our amendments try to mitigate some of its worst aspects but, ultimately, it remains an unlawful Bill completely and utterly beyond repair.

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[Danny Kruger (Devizes) (Con)]

I rise to speak to amendment 131, which stands in my name and in the name of colleagues. I am grateful to the Minister and his colleagues for their very constructive engagement in recent days; on the basis of the commitment that I hope we will hear from him this afternoon, I do not propose to press my amendment to a vote this evening. I also thank my hon. Friend the Member for Stone (Sir William Cash); I am very glad that he has just returned from his cup of tea, because I am about to make a great speech in defence of parliamentary sovereignty in his honour.

The fact is that we need a new asylum system in our country. Indeed, the world needs a new framework for protecting the rights of refugees in an age of mass migration, with the huge people movements that we are seeing. Part of that is safe and legal routes, which are the natural corollary of the Bill; I support the principle described by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) and set out in his amendments to that end. I particularly endorse the work that has gone on in the Home Office—I want to see more of it—around community sponsorship. It is one of the existing global routes that we have, and we want to see it widened significantly. Even more fundamentally, the new framework that we need must honour the founding principle of both the European convention on human rights and the refugees convention: that the primary responsibility for managing asylum rests with the nation state. That is the purpose of the Bill and of my amendment.

It is worth stating why, as part of the new framework that we need, we need a law requiring the removal of people who arrive here illegally. The fact is that even if we had the best safe and legal route in the world, we would still have thousands of people—tens of thousands, perhaps hundreds of thousands a year—seeking to come here by unsafe, illegal routes. We simply cannot accommodate all those people. That is why it is absolutely right that this Bill creates a limit, with a cap on the total number of refugees we will receive. What that cap should be is up for debate, but the need for one is clear.

Unless we want open borders—Opposition Members deny that they want them—we have to do something about the many, many people who will still try to come once the cap has been reached. The only logical answer is to deny leave to stay to people who enter illegally, to detain them and to remove them somewhere safe and free: either back to their own country or to a third country that is willing to have them. That process must be swift and unquestioned. Nothing but the certainty of detention and speedy removal will deter illegal migrants and break the business model of the smugglers.

That power of removal was established in the Nationality and Borders Act, but as we know, a judge in Strasbourg was then woken in the middle of the night by a lawyer acting for an assortment of campaign groups. The judge—sitting in his pyjamas, for all we know—issued an interim order that caused the Home Office to stop the policy before the first plane took off.

[Joanna Cherry]

What the hon. Gentleman has just described is the process of getting an interim injunction in England or an interim interdict in Scotland. Is he not aware that that happens just about every day of the week in our domestic legal systems?

[Danny Kruger]

The difference is that our domestic legal systems should not be subject to the findings of a foreign court. Moreover, the process should be transparent, it should be possible to appeal and the Government should have been able to be involved in the process. For action to take place in that way is profoundly undemocratic.

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[Joanna Cherry]

rose—

[Danny Kruger]

Let me explain myself more clearly. There are two things profoundly wrong with what happened last June. The first is the explicit tolerance of illegality—the claim by activists, backed by Opposition politicians and by judges, that people who break into our country should be allowed to stay and settle here. The second is the idea that the laws of the British Parliament can effectively be struck down by courts claiming a greater sovereignty, in deference to a higher power than parliamentary statute: the power of international law.

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[Sir John Hayes]

The hon. Lady informs many of her arguments in this place with anecdotes, sometimes with undue success, but I will not be drawn into an anecdotal debate because I want to address the issue in a rather more serious way—I do not mean to disparage her, of course.

In addressing amendments 133 and 134 in the name of my hon. Friend the Member for Stone (Sir William Cash), amendment 131 in the name of my hon. Friend the Member for Devizes (Danny Kruger) and amendment 132 in the name of my right hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke), I want to be clear about the purpose of this Bill and why these amendments make sense. The purpose of the Bill is to deal with this matter as definitively as it can reasonably be addressed. The purpose of the Bill is to tighten the arrangements in respect of illegal immigration, and the amendments strengthen that aim. Our job, against a backdrop in which people are arriving in small boats and breaching our borders with impunity, is to re-establish the sovereignty of this country and the integrity of our borders by delivering legislation that does just that.

These amendments are designed to do two things. First, they would give the Government more power to achieve this objective. Secondly, they would limit the opportunities, which we know will be taken, to frustrate the Government’s will and, by extension, Parliament’s will to do more to address this matter.

I commend the Minister and the Home Secretary for their work on the Bill, but I am certain that the expectations it creates, the time it absorbs and the opposition it will undoubtedly generate, mean that, if it fails and the Government are found wanting, Conservative Members will pay a heavy price. The Minister knows we have been down this road before with the Nationality and Borders Act, which we were told would do the job. I do not think Ministers were deceiving us—they genuinely believed it would do the job—yet, although we did exactly what I described by devoting time and political capital, raising expectations and bringing about opposition, we found that we could not achieve what we wanted to and that we needed additional legislation to do so.

We will not be given a third chance. This is our second chance to deal, once and for all, with the boats arriving at Dover and with the tidal wave—the Home Secretary described it as a “swarm”—of people who know they are arriving illegally and are breaking the law, for they know they have no papers and no right to be here. They therefore make a nonsense of an immigration system that must have integrity if it is to garner and maintain popular support.

Of course, people enter and leave countries, but they need to do so legally. Surely it is not too much to express that simple statement. It is not too much to expect a Government to maintain lawful control of our borders, yet I constantly hear from Opposition Members that this is militant, unreasonable, extreme. It is anything but. It is modest, moderate, just and virtuous to have a system that ensures the people who come here do so lawfully, and that people who arrive here seeking asylum are dealt with properly. That is a modest aim, and it will be made more achievable by the amendments in the name of my hon. Friends the Members for Stone and for Devizes and of my right hon. Friend the Member for Middlesbrough South and East Cleveland.

Given that the Minister is an old, trusted and good friend, I hope that, when he sums up the debate, he will agree to enter into a dialogue with those of us who speak for the people. We claim no more—no greater plaudit—than that we are the spokesmen of the hard-working, patriotic, lawful majority of the people of this country. In speaking for those people, we hope that he will enter into a dialogue with those of us who have tabled and supported these amendments with the aim of improving the Bill, of doing his work with him and for him, and in so doing honouring the pledge that the Prime Minister and the Home Secretary have made to the people of this country. Honouring that pledge is the right thing to do, the just thing to do and, indeed, the virtuous thing to do.

[Joanna Cherry]

It is a pleasure to see you in the Chair, Dame Eleanor. It is convention to say that it is a pleasure to follow the previous speaker, but I find it hard to say that because I do not agree with anything that the right hon. Member for South Holland and The Deepings (Sir John Hayes) said. It is an extraordinary proposition to say that, to use his words, it is virtuous and just for the United Kingdom to pass legislation that is in breach of our international obligations. These are not obligations that have been imposed on us from above. They are obligations to which we freely signed up. If the Government and Conservative Members do not like the obligations to which they freely signed up, they should have the courage of their convictions and join their chums in Russia and Belarus as non-signatories to the European convention on human rights. [Interruption.] They do not like it, but it is true: those are the other two countries in Europe that cannot live with the obligations in the European convention on human rights.

I want to make another preliminary point before I go any further. The right hon. Gentleman does not speak for my constituents—he does not speak for the people of Edinburgh South West. The contents of my mailbox and my conversations with constituents show that he does not speak for them. He does not speak for other voters in Scotland, either. We are proud of our international obligations, and we would like to remain a signatory to the European convention on human rights.

There is widespread concern about this Bill, and not just from lefty lawyers, to whom the hon. Member for Great Grimsby (Lia Nici) referred earlier.

[Lia Nici]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, I will not at this stage; I want to develop my point. I have been a lawyer for many years, and it pains me to say this—because I am a lefty lawyer —but if the hon. Lady knew much about the legal profession she would know that most lawyers are actually not lefties. However, what most lawyers do have, in contrast to the Conservative Members who have spoken so far today, is respect for the rule of law and for legal obligations freely entered into. Nobody took the hand of the United Kingdom and forced it to sign the convention. We did so freely, of our own volition. I repeat that, if Conservative Members do not like the obligations any longer, because they occasionally throw up results they do not like, they should have the courage of their convictions and leave the convention.

[Lia Nici]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I want to develop my point. I will take interventions in a moment. I do not want to take up too much time.

I rise to speak mainly to amendment 122, which is in my name, and to support the amendments tabled on behalf of the Scottish National party by my hon. Friend the Member for Glasgow Central (Alison Thewliss). I also add my support to the excellent and forensic points made, as always, by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald). It is a great pity that the Minister chose to take no notes while my hon. Friend was speaking, because he made some very good points and it would be really nice to hear why the Government disagree with them. At the end of six hours of debate, it is going to be difficult for the Minister to answer those points, given that he paid no attention to them and did not make any notes.

I tabled amendment 122 in my capacity as Chair of the Joint Committee on Human Rights, and I am very grateful to those hon. Members who have lent their support to it. I am not going to press it, because the Committee has only just commenced its legal scrutiny of this Bill. That is not because we are dragging our feet, but because the Bill has been bounced on us at such short notice. We have very little time to undertake that scrutiny, but we hope to report before the Bill has finished its passage through the Lords. At that point, I hope we will be able to recommend some detailed amendments.

Amendment 122 is a probing amendment that gives me the opportunity to explain to the Government the legal basis of our obligations to obey the interim measures of the European Court of Human Rights, because an awful lot of what we in Scotland call mince—which is a technical legal term—has been spoken about that so far.

As a preliminary point, I also want to stress the widespread opposition to this Bill. Our own Equalities and Human Rights Commission, the Scottish Human Rights Commission and the Council of Europe all have severe concerns about this Bill’s impact on our international legal obligations. The UNHCR also has severe concerns about it, as have the Law Society of England and Wales, the Law Society of Scotland, many other very respectable civil society organisations and many of our constituents.

Over the weekend, I received a number of letters from primary 7 pupils at Oxgangs Primary School in my constituency of Edinburgh South West. The gist of their letters was that we are a wealthy nation—the hon. Member for Devizes (Danny Kruger), who is no longer in his place, referred to the United Kingdom as a wealthy country; it is not a country but a union of nations—and we need to do more to help refugees. As other hon. Members have said, the majority of displaced people in this world just go to the country next door. It is only a very tiny fraction who come to the United Kingdom, looking for our help. I think that what those young people were trying to say is that we have a moral obligation to them. I think they were also making the point that human rights are universal. The Government need to remember that. This Bill seeks to carve out certain categories of people to whom human rights will not be applicable in the same way as they are to me and my constituents. That is simply wrong.

The purpose of amendment 122, which relates to clause 49, is to ensure that we recognise that the United Kingdom is bound to comply with interim measures issued by the European Court of Human Rights, and that any regulations made under clause 49 do not undermine that principle. The amendment is consistent with the unanimous recommendations made by the Joint Committee on Human Rights when we reported on a similar provision in the Bill of Rights Bill.

It is important to set out the legal basis on which the United Kingdom is bound to comply with those interim measures, and I will take a couple of minutes to do so. Under rule 39 of the rules of the European Court of Human Rights, the Court may indicate interim measures to any state party—not just the United Kingdom—that has freely signed up to the convention. They are usually sought in connection with immigration removal or extradition cases, and they amount to a requirement that the removal or extradition be suspended—not stopped—until the case has been fully examined. Case law from the Court has established that requests for interim measures are granted only exceptionally, when applicants would otherwise face a real risk of serious and irreversible harm. They are granted from time to time against the United Kingdom, but in fact that is very rarely the case. In 2021, the European Court of Human Rights received 1,020 requests from across the Council of Europe for interim measures and granted 625 of them. However, between 2019 and 2021, the interim measures under rule 39 were applied for in 880 cases against the UK, but granted in just seven of them.

This rides a coach and horses through our freely entered into international legal obligations in respect of interim measures—it really is taking a hammer to crack a nut. Interim measures appear in the rules of the Court rather than in the convention itself, which has led some commentators—including some Conservative Members —to argue that the UK is not bound to comply with them. This is particularly the case because article 46 of the convention, which concerns the

“Binding force and execution of judgments”,

only commits the UK to abide by final judgments of the Court, and does not mention interim measures.

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[Joanna Cherry]

I will give way in a moment. I just want to develop my point and then I will give way to the hon. Gentleman, because I know that we have been arguing about this for years. This is an important point to make.

It is sometimes assumed that this Parliament just took on the character of the English constitution when it unified with the Scottish Parliament. Perhaps it is worth considering that there are other notions of sovereignty. In my country, the people are sovereign, not the Parliament, and they can choose to share their sovereignty with, for example, the Edinburgh Parliament, this Parliament and other international institutions. The endless obsessing about the sovereignty of Parliament is not particularly helpful. Where I really disagree with the hon. Gentleman is in this: I think that the Human Rights Act was an elegant solution to fulfilling our rights under the convention, while also respecting the sovereignty of this Parliament.

[Sir William Cash]

I wish to reply to the hon. and learned Lady by saying that the sovereignty of the United Kingdom Parliament rests with the United Kingdom Parliament. I know that she would quite like to leave it, but, on the other hand, she is bound by it, and the European Union (Withdrawal Agreement) Act 2020 specifies quite clearly that the sovereignty is guaranteed.

[Joanna Cherry]

The Union between Scotland and England was freely entered into. I know that some people are under the misapprehension that now it is some sort of “Hotel California” situation, where we can check out but cannot leave, but that is a fundamental misunderstanding of the nature of the Union. The views that I am expounding about sovereignty are not just my eccentric views, but the views that have been expounded by many well-respected Scottish jurists, as the hon. Gentleman knows. It is worthwhile sometimes to take a step back. With all due respect to some of my English friends, they get a bit hysterical about parliamentary sovereignty. Sovereignty can be shared and, ultimately, I believe that sovereignty lies with the people. I will just leave it at that.

[Laura Farris]

It is genuinely a pleasure to follow the hon. and learned Member for Edinburgh South West (Joanna Cherry). I will try to avoid too much mince in my own speech, but to continue in the respectful tone that she has struck.

I wish to take a little of the heat out of this debate and to say that I think the British people would recognise in the United Kingdom a country that has honoured its commitments since the launch of the 1951 refugee convention to offer sanctuary to those with a well-founded fear of persecution. The record of the past seven years, where close to half a million people have been granted asylum on humanitarian grounds, bears testimony to that.

I think that the British people would also recognise that there are peculiar and unique problems that have arisen with the small boat crossings. Five years ago, in 2018, 300 people made that journey; last year, it was 45,000. Of those, 80% were men aged between 18 and 40, all of whom had paid a people smuggler and all of whom had the physical strength and wherewithal to make a journey across continental Europe through the small boat route. We know that a third of them arriving last year were Albanian.

I just want to read what Dan O’Mahoney told the Home Affairs Committee—I see that the Chair is in her place—when he appeared before it last October. I am quoting verbatim. He said about the Albanian arrivals:

“The rise has been exponential, and we think that is in the main due to the fact that Albanian criminal gangs have gained a foothold in the north of France and have begun facilitating very large numbers of migrants… Whatever sort of criminality you can think of…there are Albanian criminal gangs dominating”—

in this country—

“whether it is drug smuggling, human trafficking, guns or prostitution.”

He said that a lot of the Albanian migrants

“are not actually interested in seeing their asylum claim through… We typically put them in a hotel for a couple of days, and then they will disappear”

into the underworld.

That unique and specific problem requires a unique and specific answer. We all agree on safe and legal routes. I will not improve on the remarks made by my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton) in his powerful speech. I heard from those on the Labour Front Bench, for the first time tonight, that they also endorse quotas, which is part of this Bill, and we agree with that.

In case my intervention earlier was not clear enough, I was simply saying that Harvey Redgrave, writing in a thoughtful piece for the Tony Blair Institute last July, talked about not only safe and legal routes, out-of-country rights of appeal and quotas, but an absolute prohibition on small boat arrivals. That really is the disputed issue in this legislation.

I rise to speak in response to amendments 131 and 132, which were tabled by two Conservatives, one of whom, my hon. Friend the Member for Devizes (Danny Kruger), is in his place.

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[Laura Farris]

I am just going to make a tiny bit of progress, because I have not really started and there is not much time.

I want to respond to amendments 131 and 132, which would do slightly different things but have the same effect. I will look at you, Dame Eleanor, and I hope that my hon. Friend the Member for Devizes will not be offended if he has to look at my back. Amendment 131 would exclude the jurisdiction of the European Court of Human Rights and amendment 132 seeks to disapply the relevant sections of the Human Rights Act 1998 in so far as they may be relevant to decisions taken under this Bill.

I want to say at the outset that I understand the impulse that has brought my hon. Friend here—namely the frustration with the exercise of the rule 39 injunctive relief decision in July, which the hon. and learned Member for Edinburgh South West covered so well in her speech. She will know as well as I do that rule 39 is not an inherent part of the European convention on human rights; she said in her speech that it is a rule of the Court.

That decision was taken by a single judge alone. The hon. and learned Lady is right to point out that that is common and standard in injunctive proceedings, but it is none the less somewhat surprising to see that matter go through in the eyes of the High Court, the Court of Appeal here and, finally, the Supreme Court, and then be overturned by the decision of a single judge in Europe. We do not even know who the judge was, but we know that Tim Eicke, our own British judge who sits on the European Court, has never sat as a High Court judge. He is a barrister. I say that with deference to his brilliance, and of course I am not criticising him; that is standard for the European Court of Human Rights. However, it is odd to see our own Supreme Court, with some of the most brilliant justices in the world, being overruled, under a Court rule, by somebody who is probably not of their status. I think that is a true statement.

[Joanna Cherry]

I went on to say that in the case of Paladi v. Moldova, the Grand Chamber said that a failure to comply with interim measures amounts to a violation of article 34 of the convention, because the high contracting parties have undertaken not to hinder in any way the effective exercise of the right of applicants to bring their claims before the Court. Whereas it was originally in the rules of Court, the Grand Chamber has now said that failure to obtemper or comply with that would be a violation of article 34 of the convention.

[Laura Farris]

I take the hon. and learned Lady’s point. We are obviously adhering to that, but as a rule of the Court.

Moving on, I was glad to read recently, whether in a press release or in a tweet—I cannot recall—the Home Secretary saying she was glad that constructive talks were now taking place between representatives of the British Government and members of the European Court of Human Rights, focused on resolving that issue. I say that is good because I think it should be possible to resolve that issue, since it is a rule of the Court rather than a principle of human rights. I hope we can move on from there.

If I may say so, with great respect, I do not accept that that decision in itself justifies these two amendments. I think both are weak for legal and constitutional reasons, and I will set out why. First, on amendment 131, my right hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke) said that he had relied on a paper written for Policy Exchange by Richard Ekins and Sir Stephen Laws. I challenge the expertise of both those people—I question it. One of them has contacted me in the past, but neither are practitioners, and it shows in their writing that they are not regularly in court.

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[Laura Farris]

No disrespect is intended, but it is clear that they are not frequently in court arguing these cases, because if they were, they would know the way the law ran.

[Joanna Cherry]

The hon. Lady and I do not agree about a lot of things, but I believe she has expertise in this area as a barrister—that is correct, is it not?

[Laura Farris]

Yes.

[Joanna Cherry]

The hon. Lady has expertise and has practised in this area, so I suggest to her hon. Friends that her views deserve a degree of respect.

[Laura Farris]

On the Government side of the House, I am probably the Member who has most recently been in the immigration tribunals, so I have an idea, but it is not my principal practice area.

The other thing that I think is relevant is that Parliament has in the past successfully recalibrated the interpretation of the convention and changed the way it is interpreted, and had no difficulty with that. The Bill already takes a number of novel steps in relation to established law. First, it creates an absolute duty of removal on the Home Secretary that applies irrespective of any human rights claim, with the exception of the non-refoulement principle. Secondly, the Bill expands powers of immigration detention, granting the Secretary of State a power to determine the period that is “reasonably necessary”, in some ways overriding established Hardial Singh principles. Thirdly, it limits the rights of appeal: the individual has a right of appeal, but that is capped at one. In my respectful submission, the Government must have the opportunity to see those clauses enacted, because I believe that they will be upheld by the European Court of Human Rights.

Back in 2012, the coalition Government changed the immigration rules in relation to the deportation of foreign national offenders and the application of article 8, which is the right to respect for private and family life. Parliament took the view that that was too often being interpreted in favour of the ex-convict, and, as a result, set new rules—from paragraph 398 onwards of the established immigration rules—to make it clear that there were limited circumstances in which article 8 should be engaged. Parliament said in terms that the balance should be struck in favour of the overwhelming public interest in deportation, above any article 8 claim unless there were very compelling circumstances to the contrary. That was upheld in successive decisions by our appeal courts, beginning with MF (Nigeria) in the Court of Appeal.

The decision by Parliament to circumscribe the ambit of article 8 when it applied to criminals was taken to the European Court of Human Rights for years, but the court would not hear the issue at all until 2017 in the case of Ndidi. I reminded myself today of how that case was approached. In fact, a quite compelling article 8 argument was made: the person had arrived in the United Kingdom as a baby and had never been anywhere else, and the offending was quite low level—drug dealing rather than any harm to the person. The courts here had said that he must be deported to a country that he had never been to before. He challenged that in the European Court of Human Rights, which said, “No, the British Government are absolutely entitled to circumscribe the application of article 8 in the way that they have.” His claim was rejected.

My simple point is that we can do things—in the way that the Government are seeking through the Bill—that may well be compatible with the European convention on human rights, and I have struggled to find any example of the court overturning primary legislation, which is what the Bill is, or constructing it in a way that is disadvantageous to the member state. The fact that so many Members refer back to the prisoner voting case does not enhance their argument. That case is 20 years old and has been reversed. I accept without reservation that it was wrongly decided—I think there was overreach—but I have heard no example from the last 20 years to suggest that the Court is still making the same mistakes.

We have talked about the Nationality and Borders Act 2022 not being a success, but that was not because the European Court of Human Rights said that it was unlawful or overreached; we simply concluded that it did not yet work. For those reasons, I think that the Bill already goes very far and should be given the chance to work through.

Illegal Migration Bill

Joanna Cherry Excerpts

2nd reading
Monday 13th March 2023 Commons Chamber

[Suella Braverman]

I am afraid that my right hon. Friend raises a very worrying fact about what we are seeing. When I have spoken to police chiefs around the country, they tell me that criminality—particularly drug supply and usage—is now connected to people who came here illegally on small boats in the first place.

Thirdly, Rwanda is a fundamentally safe country, as affirmed by the High Court. It has a proud track record of helping the world’s most vulnerable, including refugees, for the United Nations.

[Joanna Cherry (Edinburgh South West) (SNP)]

People who are same-sex attracted and trans people are not covered by anti-discrimination laws in Rwanda. Does the Home Secretary think that makes it a safe country for gay people and trans people?

[Suella Braverman]

I am sure the hon. and learned Lady has read the High Court judgment, which is an exhaustive and authoritative analysis by senior, learned judges of how our world-leading Rwanda partnership complies with international obligations, including the European convention on human rights and the refugee convention. It has been deemed to be a proper, lawful partnership. I refer her to the judgment.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

As Chair of the Joint Committee on Human Rights, I will focus on aspects of the Bill that potentially breach the European convention on human rights.

The Committee will be scrutinising the Bill very carefully and reporting on it in early course. So far as I can see, however, the Bill is designed to set the UK on a deliberate collision course with the European Court of Human Rights. In their human rights memorandum, the Government accept that the Bill engages articles 2, 3, 4, 5, 6, 8, 13 and 14 of the ECHR. By her statement under section 19(1)(b) of the Human Rights Act, the Home Secretary clearly accepts that some or all of those rights might be breached by the Bill. For once, she is correct.

The Joint Committee on Human Rights published in January our report on the Bill of Rights Bill. We said that that Bill should be scrapped. Now we see some of its most reprehensible aspects cropping up in this Bill. Time permits me to identify only two. First, clause 1(5) undermines the fundamental principle of the universality of human rights by creating a class of people in respect of whom the courts in the United Kingdom will not be required to interpret the Bill in a way that is compatible with the convention.

Secondly, clause 49(1) sets conditions on the UK’s compliance with interim measures issued by the Court in Strasbourg. The Home Secretary tries to pretend that there is something unusual about such orders, but any undergraduate law student knows that for a legal system to be effective, courts must be able to issue interim orders requiring parties to take, or not to take, certain steps while the full arguments in a case are litigated. In Scotland, they are called interim interdicts, while in England they are interim injunctions; I am sure the Home Secretary must have heard of them. Such orders are issued by the Strasbourg Court to prevent irreparable damage to human rights while a case is being considered. It was interim orders from the Strasbourg Court that stopped Russia executing British soldiers Shaun Pinner and Aiden Aslin.

Talking of Russia, many of the Bill’s provisions echo legislation passed by Russia in 2015 that limits the availability and applicability of ECHR rights—and we all know what happened to Russia’s membership of the convention. Is that really the sort of bedfellow that the UK wants?

In Scotland we want no part of this. The convention is written into the Scotland Act, embodying the devolved settlement, which is the settled will of the Scottish people. If the UK takes us out of the ECHR, it will be without the consent of Scottish voters and without the consent of our Parliament. When I led a delegation of the Joint Committee to Strasbourg last year, I was told by interlocutors there that if the UK leaves the ECHR it will strengthen the case for Scottish independence. While the Tories try to give Labour a headache, they are creating yet another reason for Scots to favour independence over the status quo

Public Order Bill

Joanna Cherry Excerpts

Consideration of Lords amendments
Tuesday 7th March 2023 Commons Chamber

[Sir John Hayes]

I will not give way again; I see that you, Madam Deputy Speaker, if not yet on your feet, are edging forward in your Chair, and so asking me to bring my remarks to a conclusion.

Freedom is not just about the capacity to hear from others with whom we agree; a free and open society is one in which we hear from those with whom we do not agree. That freedom is at risk. Amendment (a) is most reasonable, and I urge the House to accept it with these final words from the author and statesman John Buchan:

“You think that a wall as solid as the earth separates civilisation from barbarism. I tell you the division is a thread, a sheet of glass.”

Today I will vote against barbarism by voting for this amendment. I mission everyone in this Chamber to exercise their conscience and vote for it with me.

[Joanna Cherry (Edinburgh South West) (SNP)]

I will confine my comments to the amendments that touch on the recommendations of the Joint Committee on Human Rights, which I chair. We did not look at the debate on abortion buffer zones because that was not part of the original Bill, so I will not comment on that. In general terms, some of the points made by the right hon. Member for South Holland and The Deepings (Sir John Hayes) could be carried across. I could very well ask of him why, if that is what he so clearly believes, he would support a power to stop and search without reasonable suspicion? So it cuts both ways.

However, I will confine my comments to support for Lords amendments 1, 6 to 9, 20, 21, 23, 27, 28, 31, 32 and 33, which can basically be grouped into suspicion and stop and search, serious disruption prevention orders, and the meaning of the phrase “serious disruption”. I will speak to the Joint Committee’s report on our legislative scrutiny of the Bill, which was published on 8 June last year. It was a unanimous report of our cross-party Committee, which of course contains both MPs and peers.

The right to peaceful protest is a cornerstone of our democracy, which should be championed and protected rather than stifled. The Joint Committee concluded that while the stated intention behind the Bill was to strengthen police powers to tackle dangerous and highly disruptive protest tactics, its measures went well beyond that to the extent that we feel the Bill poses an unacceptable threat to the fundamental right to engage in peaceful protest. We have heard speeches about the historic basis of that right, and of course it is also protected in modern times under article 10 of the European convention on human rights, which deals with freedom of speech, and article 11, which deals with freedom of association.

In our report, we recommended that the power to stop and search without reasonable suspicion should be removed from the Bill. Other hon. Members have spoken about that in some detail. Basically, what we said was that the power to stop and search without reasonable suspicion inevitably gives rise to a risk of arbitrary or discriminatory use, and that it is disproportionate and inconsistent with the right to engage in peaceful protest. As we heard from other hon. Members, the police themselves said it is counterproductive and I do not understand that it is a power the police actually want as a whole. Lords amendments 6 to 9 take that out of the Bill, and I think that should be supported by this House.

[Chris Philp]

I am extremely grateful to the hon. and learned Lady for giving way. On a point of clarification, clause 11, prior to amendment by the Lords, states that although an individual does not have to be subject to suspicion before an officer can activate this section, the officer has to “reasonably believe” that a number of offences may be committed. So it is not a wholly unconstrained power to search. That reasonable suspicion in clause 11(1) does have to be engaged.

[Joanna Cherry]

I am not sure the Minister is right about that. I think what he is trying to say is that the police officer could have a highly subjective view prior to stopping, and a highly subjective view is not a reasonable suspicion. We took all these matters into account in our report.

[Stuart C. McDonald]

I think what the Minister is trying to point out is that before the 24-hour period where the suspicionless stop and search can come into force, there has to be a reasonable belief that somebody somewhere in the locality may commit one of these wishy-washy offences. If that happens, then everybody in that locality can be subject to suspicionless stop and search. I am afraid that is just not an adequate answer to the fact that everybody in that locality could be subject to suspicionless stop and search. It is nonsensical.

[Joanna Cherry]

The Minister must know that we are still bound by the European convention on human rights. Clearly, from what the Home Secretary said earlier this afternoon, some Government Members are trying to find a pretext to take us out of the convention, but we are still bound by it just now. The Minister must know that in order to interfere with freedom of assembly or freedom of association, under article 11 the interference has to be lawful, necessary and proportionate. What my hon. Friend just described is not lawful, necessary and proportionate.

[Chris Philp]

rose—

[Joanna Cherry]

The Minister will get to speak at the end. I do not want to take up too much time as I have already spoken for five minutes and I do not want to upset Madam Deputy Speaker. The Minister can take the tenor of the comments so far across the House, including from the Government Benches. People are not happy about the power to stop and search without reasonable suspicion. The cross-party Committee of MPs and peers shared that unhappiness.

Illegal Migration Bill

Joanna Cherry Excerpts

Tuesday 7th March 2023 Commons Chamber

[Suella Braverman]

Our 10-point plan announced in December deals with the issue of asylum accommodation. It is unacceptable that over 40,000 people are being accommodated in hotels all over the country, at a cost of £6 million a day. My right hon. Friend the Minister for Immigration is therefore working intensively with other Departments and local authorities throughout the country to identify and procure sustainable and appropriate asylum accommodation.

[Joanna Cherry (Edinburgh South West) (SNP)]

The Home Secretary has often said that she would be quite happy if the United Kingdom left the European convention on human rights, and when the Justice Secretary gave evidence to the Joint Committee on Human Rights last year, he said that the Government were not ruling out leaving the convention. The Home Secretary said in her statement that she cannot make a definitive statement of compatibility with the ECHR under section 19 of the Human Rights Act 1998, which comes as no surprise to most of us. Is the plan behind the Bill simply this: the legislation will go through in the certain knowledge that the domestic courts of the United Kingdom will find that it is incompatible with international law and the ECHR; and then the Tories will fight the next general election on a promise to take the United Kingdom out of the European convention on human rights? That is the whole point of this, is it not?

[Suella Braverman]

I refer the hon. and learned Lady to her comments on the Rwanda partnership about a year ago. Many people here denounced it as unlawful, cruel and illegitimate, yet not very long go we had an exhaustive and authoritative judgment from the High Court saying the exact opposite—that it is compliant with human rights, compliant with the refugee convention, and lawful.

Change of Name by Registered Sex Offenders

Joanna Cherry Excerpts

Thursday 2nd March 2023 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I actually want to raise the point that has just been raised by the hon. Member for Telford (Lucy Allan). The debate is clearly centred on the law and practice in England and Wales, but similar problems exist in Scotland, and Disclosure Scotland operates the same model.

Let me preface my speech by saying that in a previous life I worked for many years as a specialist sex crimes prosecutor with the national sex crimes unit in the Crown Office and Procurator Fiscal Service in Scotland. I am therefore acutely aware of the importance of the effect of the prosecution of sex crimes, particularly for the protection of women and girls but also for the protection of children and some men. I am also very aware of the importance of safeguarding and of the way in which those who wish to abuse their power by sexually abusing women and children will seek out loopholes and opportunities to find new victims. Today I want to focus on the safe- guarding loophole created by the ability to change identity in a more fundamental way, by simultaneously changing both name and gender.

I should say that I have been assisted in the writing of my speech and my understanding of this issue by Dr Kate Coleman of the organisation Keep Prisons Single Sex, which campaigns for prisons in the United Kingdom to be single-sex but also campaigns for data on offending to be recorded by sex registered at birth through the criminal justice system.

The Disclosure and Barring Service plays a vital and unique role in safeguarding. By processing criminal record checks for individuals who have applied to work in roles where safeguarding considerations apply, it allows organisations access to key information that will assist them in making safer recruiting decisions. The ability of a DBS check to play this role in safe- guarding rests entirely on the relevance, completeness and accuracy of the information returned and displayed on the DBS certificate.

--- Later in debate ---

[Mrs Pauline Latham (Mid Derbyshire) (Con)]

I apologise for being late, Madam Deputy Speaker. I would have liked to contribute to this debate, but the ticket machine broke and I missed my train. I apologise for coming into the Chamber just to make an intervention. This is such an important debate, and I pay tribute to the hon. Member for Rotherham (Sarah Champion) for securing it and for her work.

As the hon. and learned Member for Edinburgh South West (Joanna Cherry) has just said, the ability for people to apply for a DBS check to work with children after changing their name by deed poll entirely defeats the object of the sex offenders register. Does she agree that the requirement for sex offenders to notify the authorities themselves is entirely unfit for purpose and that there needs to be a much more robust and centralised mechanism through which sex offenders can apply to change their name?

[Joanna Cherry]

I could not agree more.

The hon. Lady reminds me that, at the outset of my speech, I should have congratulated the hon. Member for Rotherham (Sarah Champion) who, as always, is completely across the subject. She often raises important issues, both in this House and in the public domain, that others have not dared to raise. I pay tribute to her for that.

I am talking about the Huntley case because it is disgraceful that, 18 years later, safeguarding loopholes remain whereby applicants can submit identity documents for DBS checks that display a new identity, despite the efforts of various hon. Members. At least the Government have acknowledged the safeguarding loophole whereby registered sex offenders are able to change their name by deed poll, but I am afraid that the ability to change identity in a more fundamental way, about which the hon. Member for Telford spoke so powerfully, by simultaneously changing one’s name and one’s gender, remains unaddressed.

In our public life, across the United Kingdom, self-identification has become a de facto right without legislation. Any individual can easily, and for any reason, change their name and gender on documents commonly used to establish identity via a process of self-declaration. That includes documents such as passports and driving licences, which can be presented for the purposes of a DBS check and show the individual’s new name and acquired gender instead of, and as opposed to, their sex.

The DBS grants enhanced privacy rights to individuals who change their gender when changing their identity. Those are exceptional rights that are granted only to individuals in that group. The result is that identity verification is compromised, meaning that there is no guarantee that the information returned during the check and displayed on the certificate will be accurate or complete. Those exceptional privacy rights also allow an applicant who has changed gender to request that all their previous names are withheld from the DBS certificate that is issued. That right to conceal previous identities is not given to anyone else; disclosing previous identities is a key component of safeguarding, and DBS certificates issued to all other individuals display all other names the applicant has used.

No doubt there were good reasons for the privacy requirements set out in section 22 of the Gender Recognition Act. I hasten to add that I am completely in favour of equal rights for trans people, but I am not in favour of a system that allows sex offenders to exploit the principle of self-declaration to evade the safeguarding process. Applicants who change their gender are also permitted to conceal their sex, and the DBS certificate issued will display their acquired gender instead. That right is not granted to any other individual; the importance of sex to safeguarding means that for all other applicants, their sex is always displayed on the DBS certificate. These are all serious risks to safeguarding that compromise the validity and reliability of the DBS regime.

This is a particular problem as we roll out digital identities, including for DBS checks, because there is a risk that the existing loopholes will be perpetuated in the digital realm. In the drive for convenience and ease of use, digital identities risk creating a new safeguarding loophole. In-person identity verification acts as a safe- guarding protection in and of itself, yet digital identities can be shared remotely, meaning that that important step is removed. The current operation of the DBS regime means that identity verification is compromised and organisations requesting DBS checks cannot have confidence in the information that is disclosed.

There are steps we could take to close the loopholes: the mandatory use of national insurance numbers for DBS checks and identity changes; having DBS certificates that display the sex registered at birth; and having DBS certificates that display other names used for all applicants, including those who have changed gender as part of changing identity. We are talking about rules of safeguarding that apply to people who have been convicted of sex offences, so all of this should be a no-brainer. In order to be effective, the rules of safeguarding must apply equally to everyone.

[Tim Loughton]

I am pleased that the hon. and learned Lady has raised this issue. It is extraordinary that more than 20 years on from what happened at Soham, we are still addressing here today the issues that came up then. It seems absolutely a no-brainer, as she puts it, that for people who have committed heinous crimes and whose sex offending history shows that they still pose a potential to harm children, the full identity should be available to those who need to see the DBS checks as they are taking them into employment. I think there is a degree of agreement on that. The change of gender qualifications, which I fully understand and which are necessary, should not apply to sex offenders. A full change of name history must be automatically linked at the DBS, and a change of name must be automatically linked to a DBS check, to make sure that all that information is available in respect of those people who pose a risk to vulnerable children.

[Joanna Cherry]

I am very grateful to the hon. Gentleman for his intervention. He correctly encapsulates what it is that I am asking for: in order to be effective, the rules of safeguarding must apply equally to everyone and there must not be loopholes or get-outs. Whenever the members of one group are excused from the normal requirements of safeguarding, a loophole is created that is ripe for exploitation.

I wish to make one final point. I am sure that we will hear that abusing the process and failing to disclose previous names is an offence, but that is just not good enough. A minor matter of administrative fraud such as making a false declaration is nothing in comparison to the significant risk posed by sex offenders abusing this system, which is really ripped open by the loopholes that I have described. It is high time that the safeguarding loopholes, which result in a situation where people—sex offenders—can change their identity, are addressed.

--- Later in debate ---

[Miss Dines]

I want to make a bit of progress, but I am very happy to talk about it. I have given way a few times, but I would be interested in taking up any further discussions outside the Chamber.

Serious issues have been raised in relation to name changes and changes of gender. An individual who is transgender and has a criminal history is subject to the same monitoring, rules and checks as any other offender. That is the case regardless of whether they have a gender recognition certificate. A change of name resulting from a change of gender does not relieve the registered sex offender from their notification requirements. Regardless of the route used, everyone applying for a DBS for a criminal record certificate must follow the same identity validation process to demonstrate their current identity. This includes the requirement to provide at least one document previously issued by the Government in the current identity, or consent to providing fingerprints. The DBS sensitive applications route allows transgender applicants, including those who self-identify, to provide their full previous identity information to the DBS, while not disclosing that to a prospective employer or having it printed on their DBS certificate.

There is more to do in this area. I am very interested in this area, with the competing rights of such individuals and those who need protection, and I am looking at this. For applications via this route, the DBS additionally seeks to see a name change deed poll or a separate signed self-declaration to formally record the link between the current name and the identity that is to be protected. An application will also be checked against both male and female genders within the system.

[Joanna Cherry]

The Minister is absolutely right that there are conflicting rights here, but when rights conflict we have to carry out a weighing exercise, and we are talking about sex offenders here—people with a proven track record of abusing children and vulnerable people—so there is really no competition in that situation.

[Miss Dines]

I am delighted to agree with the hon. and learned Lady, and that is part of my balancing exercise. Sometimes there is lazy government, where the Government think something is sorted out, we have granted a right or a legal right, and we do not need to do any more. However, we do need to look at how things change, at new legislative changes and at the competition between rights, and I am thoroughly interested in that point.

That is why, for example, a blanket ban—I know the hon. Member for Rotherham is not suggesting that today, although it was suggested yesterday—is perhaps a distinction without too much of a difference, because we all want the same thing. A blanket ban preventing sexual offenders from changing their name is at risk of a court finding it to be discriminatory, unreasonable or disproportionate by focusing on all past offending regardless of the level of danger posed by the individual to the public and ignoring their rights.

What is often cited is that there are good and proper reasons for offenders to change their name. It is often cited that there are implications under the Equality Act 2010 or the Gender Recognition Act 2004, and perhaps more importantly, the European convention on human rights, in relation to the right to a private life. This is where we get into the legal complexity of why successive Governments do not always grapple with that problem. I am determined to have a go at it, with the assistance of everybody in this Chamber.

[Joanna Cherry]

The Minister is being very generous in taking another intervention. The argument that preventing sex offenders from taking advantage of a process of self-identification of gender to hide their identity somehow breaches the European convention on human rights was put forward in the vexed debate over self-identification in Scotland, and I can tell her that it was widely rubbished by many legal commentators. Will she look into it more carefully, rather than just taking at face value what many of us think is the baseless assertion that such a measure would breach human rights?

[Miss Dines]

I was not putting these points forward as my views; I was saying that they are often cited as an issue. What we need is a thorough overhaul and to look at how, within a lawful existing framework, we can move forward. I am delighted to say that this is an area I am working on, but the hon. and learned Lady is absolutely right that more needs to be done. The present system, while one of the most robust regimes—if not the most robust regime—in the world, is in my view not quite going far enough, and we need to look at it again. We need to protect members of our society, and as the safeguarding Minister, I take that job very seriously.

In closing, I would like to thank hon. Members for the important points they made during their speeches. I hope I have provided some reassurance that we do have tools that assist in managing the risk of sex offenders, but I do accept and concede that there is always more work to be done. I look up at the Public Gallery as I say that, and I thank those who are there for coming to listen to this.

None the less, the Government can never be complacent. Along with the good things we do, we need to do more. I am shortly to meet the national policing lead for the management of sexual and violent offenders, Chief Constable Michelle Skeer, who has national policing responsibility for sex offender management. I want to look more at what ideas she has and what ideas we can all have together across Government, and indeed across the Opposition, to assist.

As I have made clear, public protection and safety is our No. 1 priority, and we are committed to ensuring that the police and other agencies have more and better tools to assist them to more effectively manage registered sex offenders. In a nutshell, a lot has been done, but there is more to do. We need more joined-up systems, and I am going to try to do my little bit in my short time to address these issues.

Knowsley Incident

Joanna Cherry Excerpts

Monday 20th February 2023 Commons Chamber

[Robert Jenrick]

It is disappointing that the hon. Lady attempts to draw conclusions from these events with respect to Prevent. The Government have been very clear: extremism of any kind, whether from the far right or from Islamist extremism, is unacceptable and we will bear down on it with the full force of the law. With respect to the groups that were involved in Knowsley, as I said in answer to previous questions, we are monitoring them closely and we will take action, with the police, wherever we need to do so.

[Joanna Cherry (Edinburgh South West) (SNP)]

Earlier, the Minister mentioned the importance of observing the law. The European convention on human rights is, of course, still part of our domestic legal system, and human rights are not a dirty word; they are, in fact, universal.

The Joint Committee on Human Rights, which I chair, is currently conducting an inquiry into the human rights of asylum seekers. We have heard evidence that a number of rights under the convention are engaged: the right to life, the right to be free from inhuman and degrading treatment, the right to liberty and security, the right to dignity and respect for private and family life, and the right to be free from discrimination in the enjoyment of convention rights. Can the Minister tell me what steps the Home Secretary is taking to ensure that the human rights of asylum seekers are respected in the United Kingdom?

[Robert Jenrick]

We take our responsibilities to those in our care extremely seriously. While there will of course be occasions when we fall below the standards that we would expect, and we should learn from and correct those errors as quickly as possible, in general we care for asylum seekers well in this country, and we should be proud of that.

I have had the opportunity in this role to visit a range of facilities—difficult places such as Western Jet Foil, where we meet those people whom we have saved at sea; Manston, where we house them while we conduct security and health checks; and the child hotels where we house unaccompanied minors while we find local authority care for them. In general, the standards of these places are high, and the staff who are working in them are doing a good job on behalf of all of us, but if there are ways in which we can improve those services and ensure that we continue to meet our legal obligations, we can and should do so.

Windrush Lessons Learned Review: Implementation of Recommendations

Joanna Cherry Excerpts

Tuesday 10th January 2023 Commons Chamber

[Miss Dines]

I respectfully suggest that the hon. Gentleman is mistaken. I have been a junior Minister in the Home Office for just a few months, but I have not witnessed that hostile environment he speaks of. Mistakes have been made historically, but I have witnessed civil servants working together to put right this wrong. I will work hard to make sure that we continue, so that each and every citizen of our country is treated with fairness in the same way.

[Joanna Cherry (Edinburgh South West) (SNP)]

Human rights are universal: no class of person present in this country should be exempted from human rights protection, regardless of whether they are a British citizen. In our 11th report, “Black people, racism and human rights”, the Joint Committee on Human Rights said:

“We expect the Government to fulfil its promise to implement the recommendations from the Windrush Lessons Learned Review…as a matter of urgency.”

That was more than two years ago. Can we take it that the delay in implementing the regulations and the reports that some of them are now to be ditched are indicative of the fact that the Government are unconcerned whether their forthcoming immigration legislation is human rights compliant?

[Miss Dines]

It is absolutely not the case that the Government have not treated these issues with urgency. When we deal with serious issues, we have to have a rapid but detailed and reliable response. We cannot just rush ahead with something that will not work. This is about a large transformational programme of the Home Office and the fact that it has dealt with people in an unacceptable way in the past. This Government are committed to doing everything that is right. I simply do not accept that the Government are abandoning the recommendations. We are working through them very hard, and Wendy Williams has accepted that and said the Government have stepped up to the plate, to use an American form of words. There will be more work done, but the commitment is already there.

Migration and Economic Development

Joanna Cherry Excerpts

Monday 19th December 2022 Commons Chamber

[Suella Braverman]

My hon. Friend is right. We have always maintained that this policy is lawful, and today the court has upheld that. We know that further legal challenges are possible, and we will continue to defend this policy vigorously in the courts. However, once the litigation process has come to an end, we will move swiftly in order to be in a position to operationalise the policy and deliver on our promise.

[Joanna Cherry (Edinburgh South West) (SNP)]

Can I caution the Home Secretary gently against getting overexcited about a decision at first instance? Often, important constitutional decisions at first instance are overturned on appeal. A recent example was when the last Prime Minister but one unlawfully prorogued Parliament. I think an appeal is inevitable. In the meantime, removals to Rwanda cannot take place because of the interim measures issued by the European Court of Human Rights. Perhaps she would like to explain to some of her Back Benchers the concept of an interim order issued by a judge sitting alone to preserve the status quo, which happens, I believe, in English law regularly by way of injunction.

The Home Secretary seems to be implying that she will obtemper the order of the European Court of Human Rights issued under article 34 of the convention, which the United Kingdom is bound by. I know she is not a great fan of the convention, and a lot of her Back Benchers are asking her about the notwithstanding clause, so is it her intention to domestically legislate her way out of our international treaty obligations?

[Suella Braverman]

It is not appropriate for me to speculate on the claimants’ response or whether there will be any appeals following today’s judgment. We welcome today’s findings and we will vigorously defend any appeal on the substantive matters of the lawfulness of the policy. We have been clear that, in designing and introducing our legislation next year, we will have to ensure that it is sufficiently robust to promote a scheme to ensure that if people arrive here illegally, they will be detained and swiftly removed to a safe country for your asylum claim to be processed.

Manston Update

Joanna Cherry Excerpts

Monday 28th November 2022 Commons Chamber

[Robert Jenrick]

I am aware of my hon. Friend’s concern and am happy to look into it. From my prior experience in local government, I think it is not unusual for multi-agency meetings to be official meetings; that is how, for example, a local resilience forum would operate in the case of floods or other serious incidents. It is not ordinary practice for the political leaders of local authorities—or indeed, Members of Parliament—to be part of multi-agency meetings. That does not mean that we should not adapt those processes. As far as I am aware, the instruction that my hon. Friend has received has not come from the Home Office—it certainly has not come from me. I will look into the issue, and if I can change that, I certainly will.

[Joanna Cherry (Edinburgh South West) (SNP)]

On 2 November, nearly a month ago, I, as Chair of the Joint Committee on Human Rights, together with the Chairs of the Home Affairs, Justice, and Women and Equalities Committees, wrote a long and detailed letter to the Home Secretary posing various questions about the conditions at Manston. We asked for a reply by 16 November, but still have not had one.

When the Home Secretary was before the Home Affairs Committee last week, she said that there was a processing issue at the Home Office and that we would get our response very quickly. We are still waiting. Can the Minister give us an indication of when the Home Secretary will deign to respond to this important letter from the Chairs of four Committees of this House?

[Robert Jenrick]

I was not aware of that, but if the hon. and learned Lady gives me a copy of the letter—I think she has it in her hand—I will ensure that there is a swift and full response to it.

On the conditions at Manston, I have said this before and will say it again—this is not in any sense to diminish the concerns that the hon. and learned Lady may have set out in the letter. The greatest service that she and her colleagues in Scotland could do on this issue would be to encourage more Scottish local authorities to take asylum seekers into their care. Scotland takes a disproportionately lower share of the burden of this issue in each of our resettlement and asylum schemes.

National Security Bill

Joanna Cherry Excerpts

Report stage
Wednesday 16th November 2022 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I was here to speak to new clause 7 and amendments 17 to 28 and 30 to 39, but there is not enough time for me to do so. That is most regrettable, given the importance of the Bill.

I am here not in my personal capacity but as Chair of the Joint Committee on Human Rights. Our duty is to scrutinise legislation to check its human rights compliance, and we have done that. I remind Members that the Joint Committee is a cross-party Committee with half its members from the House of Commons and half from the House of Lords. That is just as well, because it will be in the House of Lords that our amendments get the attention that I believe they deserve. Although I am not really a fan of the House of Lords as an unelected Chamber, I am very much a fan of second Chambers. Nevertheless, it is regrettable that such a small amount of time has been afforded to us today to debate this important Bill, which we believe has significant human rights implications. Given the short time available to me, I shall make some general comments; as I say, I hope that our detailed amendments will get the attention they deserve in the House of Lords.

We broadly welcome the attempt to modernise espionage offences, but we have some concerns about the Bill’s provisions. The Bill is a step forward and many of its provisions are broadly in line with the recommendations of the Law Commission’s recent review, but there are risks that some of the provisions are drawn far too widely and could criminalise behaviour that does not constitute a threat to national security. We think that other provisions would interfere unnecessarily and disproportionately with rights to freedom of expression and association and the right to protest, and that they may regrettably have a disproportionate impact on certain communities in the United Kingdom, particularly if new police powers are not exercised with restraint.

The provisions on prevention and investigation measures, which were not included in the Law Commission’s review, also engage the right to a fair trial, the right to liberty and security and the right to a private and family life in a way that gives the Joint Committee cause for concern. We are also very concerned about the restrictions on the grant of legal aid and on the awarding of damages to those who have been involved in terrorism. They risk impeding access to basic rights and legal protections, as other Members have elaborated on. We have therefore suggested that the Bill be amended in a number of ways but, as I say, there is not sufficient time for me to address any of the amendments in any meaningful way.

Let me say one other thing before I sit down. The Bill does not address issues relating to the unauthorised disclosure of information—sometimes known as leaks—despite it being a significant part of the Law Commission’s review. The commission set out clearly the ways in which the existing law engages and potentially breaches the UK’s human rights commitments under the European convention on human rights, and suggested ways in which law might be changed to overcome such issues. Although the Joint Committee appreciates that this is in many ways a complex and controversial area of law, we hope that that is not going to result in inaction, and encourage the Government to consult on legislative provisions as soon as possible.

We believe that reform of the Official Secrets Act 1989 is needed to ensure adequate respect for free speech. That is why I added my name to new clause 8, tabled by the right hon. Member for North Durham (Mr Jones), which I very much regret we are not able to debate today. Put shortly, we need a public interest defence in this country.

[Tom Tugendhat]

This has been a very full discussion involving many people. Although I sympathise with those who have quite rightly made the point that we could always have more time for these debates, the truth is that we had a lot of time in the Bill Committee and we are going to have to do much more work on this subject as its various elements evolve with the technology and the challenge. The truth is that if we had had this debate five, 10 or 15 years ago, we would have been debating different subjects, different nations and different elements of technology that have evolved into the threat that we sadly face today. Although I recognise that many hon. Members have understandably raised the number of hours and days that we have had today and in the past few weeks, the Government have listened and adapted the Bill to many aspects that have been raised in different ways.