United Kingdom’s Withdrawal from the European Union

Dominic Raab Excerpts

Friday 29th March 2019 Commons Chamber

[Dominic Raab (Esher and Walton) (Con)]

It is a pleasure to follow the hon. Member for Bath (Wera Hobhouse), even though I take a fundamentally different view.

Last November, I resigned from the Cabinet because I could not support the Government’s Brexit deal, and I tell the House that I still believe it to be a bad deal. With the Government purporting to take no deal off the table and their acquiescence in the extension of article 50, I recognise that we potentially now face an even worse alternative that could reverse Brexit and betray our democracy. In extending article 50 and signalling that they were taking WTO exit off the table, the Government rather weakened their own negotiating position in Brussels, and I am afraid heartened some of those in Parliament who are seeking to frustrate Brexit. I believe that decision, which was a choice, was a mistake. As a direct result of that political choice, we now face a very real risk of the UK being forced to accept something akin to single market membership—losing control over our laws, our borders and an independent trade policy.

[Meg Hillier]

Will the right hon. Gentleman give way?

[Dominic Raab]

I will make a little progress.

The course the Government have taken gives rise to the very real concern that they would acquiesce in a further long extension, which on both sides of the channel would be used to try to exhaust the UK into revoking Brexit altogether. That is something that I believe we must not entertain or allow. In fairness to the Government, I also recognise that they have provided some additional assurances at the domestic level that Northern Ireland will not be forced, alone, to follow EU regulations. That is of some value, although I well appreciate the concerns of those—not just on the Opposition side of the House—who are concerned that those assurances are not contained in the withdrawal agreement and therefore are not binding at the international level. Until we see the Bill, it is impossible to assess the strength of those safeguards.

Beyond those assurances, the unilateral declaration and the joint instrument relating to the exit from the so-called backstop do not change our international obligations. Frankly, they offer scant political comfort either. In all this, however frustrating, I believe we need to proceed with some realism. The choice now is between the risk of being held in the backstop by the EU for a period without being able to control our exit and, on the other hand, a significant risk of losing Brexit altogether. Neither is palatable, and both could have been avoided if the Government had shown the requisite resolve and will.

I appreciate that, for many colleagues, this presents a very finely balanced judgment call. I share the deep frustrations many feel at being presented with two such unsavoury alternatives, but anger is not a political strategy, and in this fast-moving and fluid landscape, I believe we must assess the specific and tangible decision before us at this point in time. The motion today explicitly does not satisfy section 13 of the EU withdrawal Act so it is not, in practice or in law, a third meaningful vote. However—and the right hon. Member for Leeds Central (Hilary Benn) made this point rather well—the vote on its own terms does have significant legal and practical implications. First, it is necessary to satisfy the EU Council decision on 22 March to avoid and indeed prevent the Government returning to the EU to seek an even longer extension. I regard that as essential. The second implication of the motion, by virtue of that, is to avoid the UK holding European elections in May. I regard that as absolutely essential to avoid the very dangerous and corrosive effect on public trust in our democracy.

[Mr Baron]

May I urge my right hon. Friend to think again before deciding to change his mind and support what to all intents and purposes is a meaningful vote 3? We do not know what the future holds for sure, but we do know for sure that we can only decide on the facts that are before us, and we know this is a bad deal that could lock the UK indefinitely in a backstop for a very long time. When deciding to vote against Iraq, I, like many others in this place, could only judge it on the facts at the time, not on threats involving weapons of mass destruction. Will he please consider that before he finally makes up his mind?

[Dominic Raab]

I always listen attentively to my hon. Friend. He posits the dilemma correctly, and this is a finely balanced judgment of risk. My problem is that I cannot countenance an even longer extension, or holding European elections in May.

The third implication of the motion is that under section 13 of the European Union (Withdrawal) Act 2018, a duly constituted third meaningful vote will have to return to the House for a vote, presumably on Second Reading of the withdrawal and implementation Bill. That will buy the Government a little more time and room for manoeuvre, which in my view they should use to revert to the EU and seek an exchange of letters that can provide legally binding measures that give effect to the Brady amendment. [Interruption.] Some Opposition Members are looking on in disbelief, and I listened carefully to the hon. Member for Hackney South and Shoreditch (Meg Hillier) when she spoke. Why is the EU’s position treated as immutable and unmovable, but the UK is always expected to bend? The House is succumbing to that mindset, which is precisely what led us to this predicament in the first place.

[Several hon. Members rose—]

[Dominic Raab]

I will not give way because of the time.

The risk of a WTO departure is growing because of the position of the EU, as well as what we do in this House. I believe we should continue to collaborate with the EU—not just on aviation and lorries, where progress has been made—and seek to mitigate the risks to jobs, livelihoods and businesses that arise on both sides. That is the responsible thing for all sides to do, and I hope that the Government are engaged in that. Of course, if the EU rejects those offers and overtures, it must take responsibility for what follows and the consequences of its political intransigence.

On that basis, I will vote for the motion. I do so without prejudice to my position on the section 13 meaningful vote, and to achieve two essential outcomes: to stave off a longer extension, and to prevent European elections from being held in May. I hope that the Government can more vigorously pursue the reassurances that we need on the withdrawal agreement and political declaration to make them more acceptable to this House.

European Union (Withdrawal) Act

Dominic Raab Excerpts

Tuesday 15th January 2019 Commons Chamber

[Dominic Raab (Esher and Walton) (Con)]

For my part in this debate, I have always understood the case for compromise, but compromise cannot come at any price, and the deal before us involves the most severe and enduring risks to our economy and our democracy while stifling the opportunities of Brexit that fired up over 17 million people with the optimism and the hope to vote in June 2016.

My reasons for my decision are straightforward. First, the Northern Ireland backstop and the scale of separate “regulation without representation” is undemocratic and a threat to our precious Union. Secondly, the UK-wide customs backstop has morphed into a hybrid customs union and single market arrangement, where the combination of alignment and non-regression requirements prevent this House from determining the right laws in the best interests of this country.

[Mrs Anne Main (St Albans) (Con)]

Does my right hon. Friend agree that the backstop is, as the Attorney General said, taking a risk with the Good Friday agreement and the Union of this country, and that is a risk that many of us are not prepared to take?

[Dominic Raab]

My hon. Friend is absolutely right, and on top of that powerful point the effect of this deal is to give up control, and it would precipitate a democratic cliff edge. That is compounded by the lack of an exit mechanism we can control. It gives the EU a veto over any UK exit from the backstop, even if negotiations on the future relationship languish for years or break down entirely. It is clear that none of the subsequent assurances alter the legal position as set out in the withdrawal agreement.

[Damien Moore (Southport) (Con)]

Does my right hon. Friend agree that if more assurances were there, many more Members of this House would potentially support that agreement?

[Dominic Raab]

My hon. Friend is right on that, and I will come back to what I think the Prime Minister and the Government should do in the event that the deal is voted down.

My third reason for opposing this deal is that paragraph 23 of the political declaration means that the upcoming negotiations on our future relationship would take the backstop as the starting point, to be built on. The future relationship would not be a free trade agreement, nor would it even be the Chequers model, which was set out back in the summer. It would be a hybrid arrangement somewhere even further along the spectrum of legislative alignment with the EU, between the customs union and the single market, without our having any say over the rules to be imposed.

Given the EU veto over our exiting the backstop, we will spend the second phase of negotiations, from March, under massive pressure from the EU to accept additional single market rules, free movement—potentially—and access to UK fisheries as the price for exiting the backstop. The EU will inevitably press us right up until the next election, if not well beyond, and it would wield all the negotiating leverage. So I say to all hon. Members weary of Brexit that I share your desire to move on from Brexit, but be under no illusions: the deal before us cannot end this grinding process—it can only prolong it. This deal is so demeaning to our country that it would inevitably invite—no, demand—reversal by the British people from the moment the ink was dry. It would torment us and, as a result, our EU neighbours, for the foreseeable future.

So what next? If this deal is voted down, we should make our best final offer to the EU on the current deal, including, as hon. Members on all sides have said, an ability to exit the backstop and a transition to a best-in-class free trade agreement. At the same time, we must accelerate our preparations for leaving on World Trade Organisation terms, in case all our reasonable offers are rebuffed in Brussels, so that we can manage and mitigate the undoubted risks of leaving on WTO terms while leaving the arm of friendship extended to continue negotiations with the EU, whether it is right up until the end of March or even beyond.

That is what my head tells me about this deal, but this decision touches the hearts of so many of us in this House, on all sides, and indeed the very soul of who we are as a country. Like many of us, I think about what this deal means for our children. My two sons are four and six. I want them to grow up in a country that is even better than it is today, one that is more prosperous, more ambitious, more confident, and, yes, more conscientious in the world, too. I want them to know that we fearlessly chose the right path for their future, that we did not duck the challenge, weary of Brexit, and that we did not avoid the undeniable but manageable short-term risks at the long-term expense of the economic health and democratic foundations of the country that I know we all love.

But what I fear most in the terms of this deal is the drain on our economy, the loss of our competitive advantage and the enfeeblement of our democracy that it would inevitably inflict over time. I say that because it is the embodiment of a distinct view of the United Kingdom, one that acquiesces in defeatism and makes its peace with managed decline. I will not sign up for that, not for my country, not for our people, not for my children and not for theirs, because I believe in this United Kingdom of ours. I believe in our entrepreneurs and our innovators. I am proud of our culture, just as I love those across Europe—and well beyond. I believe that we in this place, the mother of parliamentary democracy, accountable to the people, must determine the vital, sensitive and controversial issues of the day, and not meekly abdicate such precious decisions to Brussels. So, I will vote against the motion and the deal, because it is racked with self-doubt, defeatism and fear. Equally, many of us who vote against this deal vote for and aspire to something better and something brighter. With my heart and soul, I vote for the promise of Brexit, which must be fulfilled. I vote for the temerity to regain mastery of our own destiny. I vote for the ability to reach our full, global potential. Above all, I vote for hope not fear, and for the renaissance of the democracy in this country and the people I love.

Withdrawal Agreement: Legal Position

Dominic Raab Excerpts

Monday 3rd December 2018 Commons Chamber

[Dominic Raab (Esher and Walton) (Con)]

I welcome the Attorney General’s transparency both in his oral statement to the House and in the Command Paper. First, will he confirm that the article 20 review mechanism necessitates that the EU agrees to the UK exiting the backstop even if the negotiations have dragged on for many years or, indeed, have broken down? Secondly, while the article 50 basis for the backstop is meant to be temporary, it might well take some 10 years for it to be struck down by the European Court of Justice. If he thinks that that is too long, will he give the House his best estimate?

[The Attorney General]

Article 20 permits both sides to consider, even when no final agreement has yet been reached, whether alternative arrangements might suffice to protect the stated objectives of the Northern Ireland protocol. If they do, both sides could agree to put in place those alternative arrangements before any final agreement had been reached.

It is important to remember that, when one says final agreement, it is of course possible, indeed likely, that it may be a series of agreements reached at different times. My answer to my right hon. Friend is that article 20 creates that ability, but it is not a unilateral right of termination. It does not give us a right to walk away. It creates a procedure and obliges the European Union to consider alternative arrangements that are not part of a final deal.

I think my right hon. Friend went on to ask me about article 50 and the time it might take. The period of years he mentions is probably far too long, but it is impossible to say. What one can say is that, long before any case is brought, the pressure bringing those cases to the Court would be telling upon the Governments of the member states and upon the European Union. The legal uncertainty would be intense, and it is a real factor that this House must weigh up in considering whether the protocol is something that it wishes to support.

European Union (Withdrawal) Bill

Dominic Raab Excerpts

Committee: 2nd sitting: House of Commons
Wednesday 15th November 2017 Commons Chamber

[Matthew Pennycook]

That point is very well made. I expect that other hon. Members will touch on that in more detail when they speak to amendments 93 to 95.

We support amendments 148 to 150 and new clause 34—the efforts of my hon. Friend the Member for Stretford and Urmston to remedy deficiencies in the Bill with respect to the rights of children. Her amendments are designed to preserve in domestic law any rights or obligations arising from the UN convention on the rights of the child, to ensure that Ministers act in such a way as to comply with that convention, and to protect from the delegated powers in the Bill the rights and obligations that flow from the convention.

[The Minister of State, Ministry of Justice (Dominic Raab)]

I am grateful for the opportunity to speak in support of clause 4 and to respond to today’s second group of amendments. I also appreciate the constructive tone of the hon. Member for Greenwich and Woolwich (Matthew Pennycook).

The two strategic objectives of the Bill are to take back democratic control over our laws, and to do so in a way that ensures a smooth Brexit. Clause 4 helps us to deliver on both aims. Before talking about the amendments and the application of that clause, it is worth briefly explaining the value of clause 4, which is a sweeper provision. Clause 2 retains UK implementing legislation deriving from EU instruments, and clause 3 incorporates direct EU legislation. Clause 4 picks up the other obligations, rights and remedies that would currently have the force of UK law under section 2 of the European Communities Act 1972. In particular, it will ensure that we retain, on day one of exit, general principles of EU law and all directly effective rights. That means rights deriving from EU treaties that are sufficiently clear, precise and unconditional that they do not require separate bespoke implementing legislation. Instead, to date, they are relied on as national law without reference to any separate implementing legislation.

[Mary Creagh]

Will the Minister give way?

[Dominic Raab]

I am going to make a little progress; I am mindful of your strictures, Mr Streeter. I will take interventions on the amendments, but let me just explain the relevance of clause 4.

I will give just a flavour of the kinds of rights or obligations captured, which would include the EU-derived rights to equal pay and non-discrimination on grounds of nationality. In the context of something like competition law, it would include the prohibition on the abuse of a dominant position. The explanatory memorandum gives further illustrations. Ultimately, given that the criteria for directly effective rights are determined judicially, the scope of such rights must be for UK courts to determine. That is why it would not be right for us to draft our own definition or definitive list.

Clause 4 only converts rights as they exist and are recognised immediately before the date of exit. It serves as a snapshot of EU law on the date of exit, and guarantees a smooth legal transition out of the EU—in respect of everything of value, importance and significance—for businesses and citizens up and down the country.

[Mr Grieve]

That brings me neatly to the question as to what it means that a right should be “allowed” immediately before exit day. It seems that that word particularly, of those three, “enforced, allowed and followed”, is astonishingly opaque.

[Dominic Raab]

I will come to the precise application shortly, but I am happy to take another intervention if my right hon. and learned Friend does not think I have answered his question sufficiently by the end.

[Mary Creagh]

rose—

[Dominic Raab]

I give way to the Chair of the Environmental Audit Committee.

[Mary Creagh]

The right hon. and learned Member for Beaconsfield (Mr Grieve) has raised this point: the rubber does not hit the road in this clause when it comes to procedures, such as when we legislate for chemicals. There is no body in this country that legislates, monitors and enforces chemicals; it is all done at a European level. There is no body extant in this country to do that on exit day.

[Dominic Raab]

There are bodies that deal with these kinds of things, such as the Health and Safety Executive, but I will come to that when I deal with the sector-specific applications of this principle.

[Lady Hermon]

rose—

[Dominic Raab]

I am going to make some headway because I am mindful, Mr Streeter, of your guidance about interventions. I want to ensure that those who tabled the amendments get a chance to make interventions about their amendments.

I want to turn now to the amendments themselves. We certainly support the sentiment behind new clause 30 and the related amendments, but I am afraid we cannot accept it. Let me briefly try to explain why.

Article 13 of the treaty on the functioning of the European Union places an obligation on the European Union when developing certain EU policies and on member states when developing and implementing those EU policies to have full regard to the welfare requirements of animals. The intention of the new clause is to replicate—I am not sure whether it is replicate or duplicate—that obligation in domestic law when we leave the EU.

The reference to animals as sentient beings is, effectively, a statement of fact in article 13, but even though it is, in effect, declaratory, I can reassure the hon. Member for Brighton, Pavilion (Caroline Lucas) that it is already recognised as a matter of domestic law, primarily in the Animal Welfare Act 2006. If an animal is capable of experiencing pain and suffering, it is sentient and therefore afforded protection under that Act.

We have made it clear that we intend to retain our existing standards of animal welfare once we have left the EU and, indeed, as my right hon. Friend the Secretary of State for Environment, Food and Rural Affairs has made clear, to enhance them. The vehicle of this legislation will convert the existing body of EU animal welfare law into UK law. It will make sure that the same protections are in place in the UK and that laws still function effectively after the UK leaves the EU.

In this country—we should be proud to say this—we have some of the highest animal welfare standards in the world, and we intend to remain a world leader in the future. Leaving the EU will not prevent us from further maintaining such standards; in fact, it will free us in some regards to develop our own gold-standard protections on animal welfare. Animals will continue to be recognised as sentient beings under domestic law, in the way I have described. We will consider how we might explicitly reflect that sentience principle in wider UK legislation.

To tack on to the Bill the hon. Lady’s new clause, which simply refers to article 13, would add nothing, however, and she was fairly honest in her speech about the limited practical impact it would have. Given that it is ultimately fairly superfluous, it risks creating legal confusion. Obviously, if she wants to propose improvements to wider UK legislation—I am sure she will, knowing her tenacity—she is free to do so, but this new clause is unnecessary, and it is liable only to generate legal uncertainty. Having addressed some of her concerns, I hope that she will withdraw the new clause, having powerfully and eloquently made her point.

I want to turn now to new clause 60, in the name of the hon. Member for Wakefield (Mary Creagh), who is the Chair of the Environmental Audit Committee, to new clause 67, in the name of the Leader of the Opposition, and to the related amendments dealing with environmental principles.

The UK has always had a strong legal framework for enforcing environmental protections, and that will continue after we leave the EU. The Bill—this legislative vehicle—will convert the existing body of EU environmental law into UK law, making sure that the same protections are in place in the UK and that laws still function effectively after exit.

The Bill will directly preserve these important environmental principles, because they are hardwired into existing directly applicable EU environmental regulations and case law. Just to take two examples, the precautionary principle is included in the registration, evaluation and authorisation of chemicals regulation of 2006 and the invasive alien species regulation of 2014, so it will be preserved by the Bill. I hope that I have gone some way to reassuring the hon. Lady, given what she said earlier.

With the inclusion of judgments on the application of the precautionary principle, EU case law on chemicals, waste and habitats, for example, will also continue to apply and will be preserved by the Bill as a matter of UK law.

[Mary Creagh]

I am thrilled the Minister has come back to chemicals, because we spent about three months of our lives looking into the issue. The point is not whether these things exist in our law; the point is that the body that enacts the registration, evaluation and authorisation of chemicals will not exist on exit day, and the registrations that British companies will have paid a quarter of a billion pounds for will fall. That is one of the big problems.

--- Later in debate ---

[Dominic Raab]

The Chair of the Select Committee makes her point powerfully, and she draws quite an important distinction, which has infused some of the debates today and yesterday—the distinction between copying, pasting and preserving the substantive law and having the institutional framework. If she will allow me, I will shortly address that point squarely.

On the substantive law, I want to make the wider point that, beyond the EU framework, the Government remain committed to the internationally recognised environmental principles set out, for example, in the 1992 Rio declaration, but also in the many other multilateral environmental agreements to which the UK is a party. These include the precautionary principle and the “polluter pays” principle. We also continue to be a party to the Aarhus convention on access to information and decision making on environmental matters, which was referred to earlier. Leaving the EU will not diminish our commitment—

[Geraint Davies]

rose—

[Dominic Raab]

I am going to make a little progress, again mindful of the guidance that I have received.

Leaving the EU will not diminish our commitment to environmental principles. Indeed, it is an opportunity to reinforce them. My right hon. Friend the Secretary of State for Environment, Food and Rural Affairs, who was here earlier and I am sure is coming back, announced only last week our intention to publish a new comprehensive national policy statement setting out the environmental principles driving UK policy, drawing on the EU’s current principles and underpinning future policy making. The point about its relative significance, value and status was very well made by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I ally myself with his remarks. We will consult on it early next year. This is not just blue-sky thinking—it is coming imminently.

Critically—this touches on the point made by the Chair of the Select Committee—the Secretary of State has also set out plans to consult on a new independent statutory body to hold the Government to account for upholding environmental standards. I hope that that addresses concerns that some hon. Members may have not just about the substantive law but about the institutional checks and oversight that we definitely need to make sure we continue when Britain leaves the EU. I hope that addresses the point that hon. Lady made, which was also mentioned by the hon. Member for Brighton, Pavilion.

Turning to amendments 60, 67 and 28, I certainly understand their intention, but they are unnecessary because of the snapshot of all EU environmental principles that we are already taking at exit day under this Bill. Furthermore, the amendments would alter existing EU principles, at least to some extent—for example, in the way that they apply to public authorities. Given that the Bill’s purpose is to bring into effect the law we have currently, the amendments risk generating a measure of uncertainty and a degree of confusion about the legal position. I hope that I have addressed some of the concerns on the environment, and I urge hon. Members to not to press the relevant amendments.

I turn to amendment 93 in the name of the hon. Member for Bristol East (Kerry McCarthy). Many hon. Members have been eloquent in outlining the need to ensure that treaty rights and other provisions falling outside clauses 2 and 3 are still retained in UK domestic law. Clause 4, as I have said, is a broad sweeper provision. It will ensure that as a starting point, all existing rights available in domestic law immediately before exit day as a result of section 2(1) of the European Communities Act 1972 will continue after exit to be recognised and available in our domestic law to the extent that they were before exit day. Clause 4(1) deliberately mirrors the language in the European Communities Act, which for our period of membership of the EU has been used to determine what and how EU law is accurately reflected in UK law. Clause 4 goes no further than section 2(1) of the ECA currently does. It is not intended to capture a narrower set of rights or obligations, or somehow to trim back. It does not make any changes as to how those rights or obligations are enforced in our courts. Deleting clause 4(1)(b) would mean that clause 4 no longer mirrors the ECA.

I understand why the hon. Lady has tabled the amendment, but it would be a rather curious, if not perverse, outcome if what counted as EU law after we depart the Union was expanded to be wider than when we were a member—yet that would be the direct result of her amendment. Perhaps even more importantly, for individuals, businesses, courts and practitioners up and down the country, by changing and inflating the test for what counts as EU law just as we are leaving, the amendment would in practice lead to significant legal confusion after exit with regard to the scope of rights retained. I know that that was not the intention of her amendment, and I hope that she can be persuaded not to press it.

[Mr Grieve]

It may well be that this comes from the European Communities Act, but I still find the word “allowed” very difficult to understand in this context, in view of the plain meaning of subsection (1)(a). As one of the questions that we have perpetually raised is that our own domestic courts will have to sort this tangle out, I am concerned about any form of drafting that appears to have an ambiguity in it. It is very hard to understand what paragraph (b) adds, and my hon. Friend has not actually explained that.

[Dominic Raab]

I have endeavoured to explain that the aim—and, I believe, the fact—of the Bill and the clause is to reflect and replicate the device used in the ECA. I always listen to what my right hon. and learned Friend says, but if that device has worked reasonably tolerably until now, I question why it cannot continue to serve the same purpose on exit. As ever, if he has a better formulation, I am very happy to look at that with him between now and Report to see whether there is a better way of doing this.

Let us be clear about the intention of clause 4. It is a sweeper provision to make sure that we have an accurate snapshot of EU law reflected in UK law on the date of exit.

[Lady Hermon]

Will the Minister give way?

[Dominic Raab]

I will give way one more time, with the tolerance of the Chair.

[Lady Hermon]

That is enormously kind of the Minister, particularly since the Solicitor General earlier this afternoon persuaded me that his colleague would answer the question that I raised with him in an intervention. Before we are asked to agree to clause 4 standing part of the Bill, will the Minister kindly explain clause 4(3)? It states that all of clause 4 is subject not only to clause 5 but, more importantly, to schedule 1, which, as the Minister knows, stops the general principles at midnight on exit day. We listened to a lot of debate and argument yesterday about clarity and certainty for the courts. There is no definition of the general principles of EU law. Why is that, and what does the provision mean in clause 4?

[Dominic Raab]

I am glad that the hon. Lady made that intervention. Clauses 2, 3 and 4 are subject to the savings and the caveats in clause 5 and schedule 1. The point about schedule 1 is not that no EU principles will apply after the date of exit, but that that date is the cut-off point for recognising EU principles as reflected in UK law. New principles that may evolve after that point do not become part of UK law; only the ones that arose before that point do. That is the clear intention schedule 1(2). I hope that that gives the hon. Lady some reassurance, but we will come on to talk about the savings in clause 5 and schedule 1 on a separate day next week, when I will be happy to return to that point if she has any outstanding concerns.

[Sir Edward Leigh]

Will my hon. Friend allow me to intervene one last time?

[Dominic Raab]

Perhaps shortly, but I am going to make some progress now, because I am hearing censorious noises from the Chair and I want to respond very obediently to them.

I turn to amendment 70, in the name of the right hon. Member for Ross, Skye and Lochaber (Ian Blackford). I think the sentiment behind the amendment is laudable, but I reassure the House that the amendment is unnecessary for the protection of rights. In fact, it is potentially counterproductive. Clause 4 will save all the directly effective rights that arise under the EU treaties to the extent that they are available now; that is the point that I wanted to get across to the hon. Member for North Down (Lady Hermon). We have deliberately not included a list of those directly effective rights in clause 4 or in the rest of the Bill, because there is no single, comprehensive and reliable list of all directly effective rights in the EU treaties. They are not set out in legislation—UK, EU or otherwise—but they are determined by the courts. Our approach is therefore based on procedural as well as substantive legal continuity.

The explanatory notes to the Bill set out a list of the articles from the treaty on the functioning of the European Union that the Government consider to contain directly effective rights, which will remain available in domestic law following our departure from the EU. That list, which includes article 157 on the right to equal pay, is intended to be illustrative of some of the rights that will continue to be available under clause 4. If we were to define a single list—especially if it was a non-exhaustive one—and legislate for it, we would inevitably run a significant risk of inadvertently omitting or mis-stating rights that individuals and businesses rely on, or suggesting to the courts that those rights were supposed to have a special status beyond the ones that were not listed.

We can reasonably expect individuals and businesses to want to rely on any list that we produced. Quite reasonably, they may not realise that they can rely on a wider set of rights that are not on any such list. The effect of amendment 70 would be at best to create legal uncertainty, and at worst—this is my concern—to mislead people about the rights available to them. The Government do not want that to happen, and I hope that I have persuaded the hon. Member for Airdrie and Shotts (Neil Gray) not to press the amendment.

I want to turn as briefly as possible—I will not take any further interventions to allow others to speak—to amendment 148, in the name of the hon. Member for Stretford and Urmston (Kate Green), who is in her place. It is important that the issue of children’s rights has been raised through the amendment, and I hope I can give her some reassurance. Most importantly, I want to reassure the Committee that the UK’s commitment to children’s rights and the UN convention on the rights of the child is and will remain unwavering. Our ability to support and safeguard children’s rights will not be affected by UK withdrawal from the EU.

Domestically, the rights and best interests of the child are protected in England primarily through the Children Act 1989 and the Adoption and Children Act 2002, as well as in other legislative measures. Scotland, Wales and Northern Ireland have their own measures for the protection of children’s rights, in accordance with the UN convention on the rights of the child.

The UK will of course continue to be a party to the UN convention, but amendment 148 is flawed in seeking to apply an EU principle of direct effect to a global UN treaty, which is of course governed by general principles of international treaty interpretation under the Vienna convention and customary international law. I am afraid that that is a recipe for legal confusion.

In any event, we already give effect to all our international obligations under the UN convention. For example, the Children Acts 1989 and 2004 set out a range of duties to safeguard and promote the welfare of children. In 2013, we issued statutory guidance to directors of children’s services, which requires them to have regard to the general principles of the convention and ensure that children and young people are involved in the development and delivery of local services. The Children and Social Work Act 2017 is a further example of how we constantly seek to make sure that we not only protect children’s rights but enhance them.

[Kate Green (Stretford and Urmston) (Lab)]

The Minister says that we already have a number of vehicles to ensure that we give effect to our obligations under the UN convention, but does he not accept that we have had cases in this country of decisions by the courts saying that legislation that is not compatible with the convention is, none the less, not unlawful?

[Dominic Raab]

As I have said, we continue to keep these matters under review. If there is a court decision, we will obviously comply with it, whatever it is. I suggest that her amendment would not meaningfully or practically enhance such rights. If what she wants to do is outside the scope of this vehicle—the snapshot that we are taking of EU law and reproducing in UK law—she should make the case for further innovations. She is of course at liberty to do so, and I would expect her to do so.

[Sir Edward Leigh]

Will my hon. Friend give way?

[Dominic Raab]

No, I will make some progress, otherwise I will be in serious trouble. I have taken several interventions.

I must turn to amendment 94, in the name of the hon. Member for Bristol East, who has also tabled amendment 95. I will address the two amendments as briefly as I can. Amendment 94 is intended to include within the scope of clause 4 rights that might arise under EU directives, but which have not yet been recognised by the European Court or the domestic courts, and might only be recognised many years after we have left the EU.

There are three basic objections to amendment 94, notwithstanding the commendable spirit in which the hon. Lady has introduced her amendments. First, amendment 94 is at odds with EU law. It conflicts not just with the UK’s approach, but with the EU’s approach to what counts as—or what the definition is of—a directly effective right. By definition, such rights need to be sufficiently clear, precise and unconditional, and they must be recognised as such by UK courts or the European Court at the date of exit. The effect of her amendment would be to inflate the definition of what counts as EU law at the very moment that we are departing from the EU, which cannot be right.

The second objection is that the amendment would not provide the accurate snapshot of the law that we are seeking to take on departure. From a practical point of view, that would risk confusion for anyone trying to glean the true legal position with any reliability.

The third persuasive argument is that the fact that we are leaving the EU means that we are taking back democratic control of our laws. With that in mind, it would not be right, as the amendment envisages, to retain an ability for thousands of directives—parts of EU law that we are not incorporating—to continue to produce new legal effects long after we have left the EU. That would run in direct conflict with the objective of clause 4 and, indeed, the whole Bill. Given the number of EU directives in force, newly found directly effective rights would have a hugely disruptive effect on UK law.

Serious Crime Bill [Lords]

Dominic Raab Excerpts

Monday 23rd February 2015 Commons Chamber

As the time available is limited, and because I do not want to pre-empt the hon. Gentleman’s comments about the new clauses, I will be brief. We have concerns that there may be unintended consequences of how they are drafted. We will want to listen to what he has to say about them.

[Mr Dominic Raab (Esher and Walton) (Con)]

It was widely trailed in the media, when the leader of the Labour party had dinner with the Clooneys, that the Labour party would get behind a UK Magnitsky Act. New clause 18 is the most modest step in that direction. Is it the Labour party’s position to say one thing after a glitzy Hollywood dinner, and then do something entirely different when it comes to having the courage of its convictions?

[Diana Johnson]

I will be interested to hear what the hon. Gentleman has to say about new clause 18, because it will be helpful to have the details. What I am saying to him is that we have concerns about the drafting of it. We support the principle of it.

--- Later in debate ---

[Dr Huppert]

I thank the Minister, and I will hold her to at least seeking parliamentary approval in time. I accept that she cannot guarantee that both Houses will vote for the code, but I should be very alarmed if Parliament were not keen to ensure that journalists were included.

The Minister also spoke about the requirement for production orders to be used in the meantime. That is welcome, because the Police and Criminal Evidence Act 1984 currently protects journalists so that their sources cannot be sought without judicial authorisation, but may I ask the Minister whether the use of such orders is a policy requirement as of today, whether it will require legislative change, and what time scale will be involved? I hope she will confirm that she has made a policy announcement that will take immediate effect. She does not seem to wish to intervene at the moment, but I hope that she will give answers to those questions by the end of the debate, so that I can decide whether any amendments or new clauses need to be put to a vote.

The Minister said that legislation would not be possible until the next Parliament. She was right to identify a technical drafting issue. The hon. Member for Kingston upon Hull North (Diana Johnson) was also right to say that the Government could have fixed that had they really wanted to, but we are where we are, and I accept that, as things are, we will be leaving serious crime to be treated differently from other issues. I hope that the Minister will confirm that the draft clause—of which I have been handed a copy—will be published so that the whole House has a chance to look at it. It is a welcome step, but it does not seem to be clear about article 10 rights, and I think that it will need to be improved in that regard.

I hope that the Minister will make the time scale clear, so that the House can make the right decision. It is important for us to protect journalists, and I pay tribute to those who worked so hard to ensure that that could happen. I hope that we can take a full step now, rather than a slightly small, grudging step.

[Mr Raab]

New clause 18 was tabled by me and by 21 other members of the three main parties, including—I am not sure whether this is a first—seven Select Committee Chairmen. It would inject some transparency into the Government’s exercise of powers to impose visa bans or deny entry, all of which are non-statutory, in relation to people involved in serious international crimes such as torture, terrorism and other kinds of organised crime. It would give the public the right to know whom we are banning from setting foot on British soil, and, by implication, whom we are not.

The new clause was inspired by the House’s unanimous resolution in March 2012—nearly three years ago—following a debate that I sponsored, along with the former right hon. Member for South Shields. We called on the Government to introduce a British Sergei Magnitsky law. There is one in the United States, and other models are being touted around the world. Such a law would impose mandatory visa bans and asset freezes on any individual linked to the torture and murder of Sergei Magnitsky, or similar such international crimes, in Russia and beyond.

As the House will recall, Sergei Magnitsky was the lawyer for a British businessman, Bill Browder, and was brutally killed on orders from the Kremlin for disclosing the $230 million tax fraud—the biggest in Russian history—that had been committed by President Putin and his associates. To my regret, the Government have not produced legislation, but I should add, in fairness, that they did affirm a policy of refusing visas to individuals who were suspected of such links. Unfortunately, owing to a long-standing policy in successive Administrations, we are not told who is banned from coming to the United Kingdom when such decisions are made, so we have no way of confirming the extent to which those important powers, and the new policy that was announced by the Government in about 2012, have been exercised in practice. There are legitimate fears—which I have raised with Ministers, and with different arms of Government, on a number of occasions—that such heinous people may be making visits to Britain.

What has been the aftermath of the House’s call for a UK Magnitsky Act in 2012? Sergei Magnitsky was posthumously prosecuted by the Putin regime, and Bill Browder himself has been the subject of various legal attacks by the Russian Government. There are reports, which were documented in the BBC’s “Panorama” in 2013, that UK companies are being used to launder money related to the Magnitsky murder and other mafia-related crimes. Meanwhile, Putin has annexed a slice of Crimea and established himself as a regional menace, and is now directing his gaze to the Baltic states.

Here in the UK, we have seen the mysterious and unexplained deaths of two Russian businessmen, Alexander Perepilichny and Boris Berezovsky, who had fallen out of favour with Putin—not to mention the public inquiry into the murder of Alexander Litvinenko, which Ben Emmerson QC told the inquiry was an “act of nuclear terrorism” on British soil.

I do not know for sure, but I fear that some of those linked to President Putin's nefarious activities—the persecution of Sergei Magnitsky and other dissidents, or his wider bankrolling by the mafia—may be slipping through the net and using London as a comfortable haven, a place free of the perils of living in Russia where they can enjoy their illicit profits in quiet, in peace and in secret. I also believe that, in the 21st century, the British public have a right to know whether the henchmen of despots like Putin—or, indeed, any other international dictator or outlaw—are being granted a free pass to come to this country. The Home Office has stuck to its long-standing line that it does not routinely disclose who is denied entry, but I do not think that that line withstands the slightest scrutiny. Why should the public not be told, as a matter of basic principle, how such important powers are being exercised? During the three years for which I have campaigned on the issue, no one has given me a serious, substantive explanation. The hon. Member for Kingston upon Hull North (Diana Johnson) talked about drafting. It seems to me that Home Office officials are burying their heads in a comfortable secrecy and lack of transparency. Why should the public not be told?

In any case, the policy is routinely flouted by those in the Home Office itself. When they want to make a show of banning characters who have been deemed offensive—for instance, the American radio host Michael Savage, and rappers such as Snoop Dogg—it is trailed liberally in the media. Incidentally, both those cases occurred under the last Home Secretary. At the moment the public may be told if someone who is offensive gets banned from coming here, but not those linked to crimes such as torture or terrorism. There is absolutely no explanation or justification for that double-standard. Equally there is evidently no legal or principled reason not to introduce transparency for those linked to such serious crimes. That would explain why the Select Committee on Foreign Affairs has recommended that the identity of those denied entry on human rights grounds should be made public.

--- Later in debate ---

[Diana Johnson]

rose—

[Mr Raab]

I will gladly take an intervention from the shadow Minister.

[Diana Johnson]

I am very flattered to be the focus of such attention from the hon. Gentleman, but perhaps it would be wiser at this stage if he were to direct his comments more to his own Front-Bench colleagues as they are in government and can bring forward legislation, which clearly we as shadow Ministers in the Opposition cannot.

[Mr Raab]

I welcome the shadow Minister’s intervention and she has got half a point, but the thing is that I have been nailing those on my Front Bench on this for three years and the difference is that they have stuck to their line fairly consistently whereas literally in the last month the leader of the Labour party has gone on record—his advisers have been trailing it liberally after the glitzy Hollywood dinner with the Clooneys—saying that actually he would go for a UK Magnitsky Act, but when push comes to shove it is nowhere to be seen. This raises a whole question about the Labour party having the courage of its convictions. So I have made this point to Members on my own Front Bench, but I also think the shadow Minister needs to be responsible for her own position and her own party’s position—and, indeed, answer for what the leader of the Labour party has trailed widely in the media.

Coming back to the substance of this, it is also worth remembering that in cases of extradition or deportation there is already a huge amount of transparency over both the policy and who is being removed. As a result, there is intense and legitimate scrutiny of Government policy. So if the public have the right to know whether the Government intend to remove the likes of Abu Qatada, why should they not equally be told whether we are banning such people from coming here in the first place? If we are serious about trying to alter Putin’s behaviour, should we not start by making sure that those who bankroll him cannot enjoy the fruits of their labour here, clandestinely in luxurious comfort? Those individuals who bankroll Putin and his like should know that when they cross the line and engage in serious international crimes, their association with him and support for him will bar their ability to enjoy the luxurious Knightsbridge lifestyle that so many of them crave. To ensure that message hits home consistently and publicly, we need transparency over such visa bans.

This new clause does not single out Russia. It would apply to any individuals linked to terrorism, violent extremism, gross violations of human rights law, money laundering and other serious organised crime, whatever their nationality and wherever they take place.

[Stephen Barclay]

Is a further reason why we need transparency that there is very little transparency around the beneficial ownership of multimillion pound property in London? For example, a respected non-governmental organisation estimates that 45% of London property valued at above £2 million is owned offshore where the beneficial owner is opaque. If those who have profited through torture and corruption are able to own London property, it is even more important to be transparent about whether they are travelling here.

[Mr Raab]

My hon. Friend is absolutely right. We need to shine a light on the murky mafia-related activities that are infecting our country through the acquisition of property and also by the physical entry of individuals into this country.

This amendment would also make an important statement about British foreign policy, particularly as inevitably in the 21st century we have to rub along with, deal with and engage with Governments who do not respect the same standards of liberal democracy as we do here in Britain. I am a realist and I recognise that we will have to engage with regimes with a dubious commitment to human rights or the rule of law, but there ought to be some moral red lines here. People carrying dirty money and individuals with blood on their hands should not be welcome on the streets of Britain. This is not just a question of moral principle. Sooner or later, if we keep allowing such unsavoury characters into the UK, bringing all their baggage and vendettas with them, we risk finding that it is British citizens who are caught in the crossfire or worse. After all, the Litvinenko inquiry has already heard that Putin’s thugs were willing to engage in nuclear terrorism here in public, so the threat to the British public is real and serious.

I remain convinced that Britain should enact a Sergei Magnitsky law, like the Americans, with mandatory visa bans and asset freezes imposed on people linked to the worst international crimes. In the meantime, at the very least we need to shine a light on the exercise of existing UK powers to deny entry or visas to the shady characters who prop up Putin, or indeed any other despot around the world.

This new clause does that. It would allow a temporary delay in disclosure of the identity of anyone banned if necessary for national security or law enforcement, and it would not alter the substantive scope of any existing powers, but it would ensure that they are exercised consistently, and it would ensure that the public are told whom we ban from Britain. I commend new clause 18 to the House.

[Stephen Barclay]

I rise to speak to new clause 28, tabled in my name, which is much more modest than the new clause tabled by my hon. Friend the Member for Esher and Walton (Mr Raab). It is simply about giving law enforcement more time in respect of multimillion pound money laundering cases.

At present around 316,000 suspicious activity reports are filed each year with law enforcement agencies. Those are cases where the banks, the lawyers or the accountants have serious concerns around money laundering. According to the Home Office’s own figures, between £23 billion and £57 billion are being channelled through the UK economy each year, so we know the scale of money laundering is significant. At present, when a suspicious activity report is filed the law enforcement agencies—the National Crime Agency has now taken on this responsibility —have just seven days to say whether they give consent to those multimillion pound transfers going ahead. That is just seven days on a case that might well have been built over many years, often involving jurisdictions where information is difficult to obtain, and if law enforcement decides it does not wish to give consent to these transactions, which the financial institutions themselves have said look suspicious, they have just 31 days to build the case to the satisfaction of the courts. If they fail to do so, they risk the penalty of costs against them, which sets a strong disincentive to law enforcement to take those cases forward. To put that in context, the proceeds of crime unit investigated only 110 cases from the 316,000 suspicious activity reports filed with it, so clearly the system is not working.

I thought I would give just one case to bring this to life. The Nigerian case OPL 245 has a bit of a jargony name, but it involves $1 billion paid by a British oil company for some offshore land in Nigeria with oil assets. To put this in context, $1 billion was paid for this land for drilling—they do drill offshore, I should point out for the benefit of any Members who might be confused as to how they obtain the oil—yet 14 years earlier this land was granted to a company owned by the then Nigerian oil Minister. In essence the land was granted by the Nigerian oil Minister to a company that he owned and for which $1 billion was then paid 14 years later. In investigating that case that had developed over many years involving complex financial arrangements over different jurisdictions, law enforcement has just 31 days to build a case that would block the transfer of $1 billion that is going to a corrupt official and his henchmen.

New clause 28 simply seeks to give law enforcement agencies more time to build their case. I shall not press it to a vote, but I hope that the Minister will tell us whether the Government believe that the current arrangements provide sufficient time, or whether they accept the substance of the new clause, which is that the current arrangements are insufficient and that they load the dice against law enforcement, meaning that corrupt assets can be transferred from the UK to criminals. If the Government accept my proposal, I hope that they will change the law at the earliest opportunity to create a more level playing field by giving more time for these complex, multi-jurisdictional cases to be investigated.

--- Later in debate ---

[Mr Raab]

Will my hon. Friend give way on that point?

[Karen Bradley]

If my hon. Friend does not mind, I will not give way, because I need to finish by 8 o’clock, and I know that there are other hon. Members who wish to speak.

[Mr Raab]

Will my hon. Friend give us an illustration of the security problem?

Phone Hacking

Dominic Raab Excerpts

Wednesday 6th July 2011 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

I congratulate the hon. Member for Rhondda (Chris Bryant) on securing this debate. The Dowler family are my constituents, and yesterday I spoke to their solicitor. I should add as well that Sara Payne, the mother of Sarah, also lives in my constituency. Allegations of hacking have been made in relation to both families, and the House will understand that there is a deep sense of outrage in the community, which has already been conveyed to me, and across the country at large.

I know that the Dowler family are deeply disturbed by the revelations of hacking at the time of their daughter’s disappearance and that they would like a public inquiry to get to the bottom of the allegations. Given the emerging allegations over recent days, the case for that inquiry is now irresistible, so I was reassured that the Prime Minister confirmed to the House today that the question is now how, not if, we have that inquiry. The hacking of phones for journalistic, and ultimately commercial, gain in the midst of a police inquiry of this nature is utterly reprehensible and heartless. In fact, it is unforgiveable.

It is imperative that we get to the bottom of what went on in the Dowler case, related cases and the much wider question of journalistic practice and its relationship to the police, which perhaps is one of the graver underlying issues in the whole business. For my part, I think that we need the truth accumulated patiently, not quickly, and certainly not just media snippets. Equally, I have to say that the relish with which the revelations have been greeted by some seeking to take on the Murdoch empire or engaging in political pot-shots strikes me as opportunistic to say the least. I urge all Members to ensure that we do not lose sight of the serious matters before us. The No.1 priority must be to allow the police investigation the freedom to conduct its inquiries rigorously and meticulously.

The House may recall that the maximum sentence for unlawful interception of communications is two years in prison under the Regulation of Investigatory Powers Act 2000. I understand that, coincidently, that is the same sentence as for the offence of perverting the course of justice. I am sure that hon. Members across the House will want the law to be applied independently, with maximum vigour and with full force, which is why I hope that all Members will refrain from saying, under the cloak of privilege or otherwise, anything that could prejudice any criminal prosecution.

My understanding is that launching a full inquiry now, as some have called for, would either risk prejudicing the criminal investigation or force the inquiry to be suspended immediately or in relatively short order—at least before it can get to the heart of the matter—pending the outcome of the police investigation. I might be corrected, but I recall that that was the reason the Public Administration Committee, under the chairmanship of the then Member for Cannock Chase, suspended its inquiry into cash for honours. I also recall that similar grounds were put forward by the previous Government in resisting calls for a public inquiry into the shooting of Jean Charles de Menezes, as requested by his family—because it might have interfered with either the health and safety prosecution against the Metropolitan police or the Independent Police Complaints Commission investigation that was going on at the same time.

That said, I am doubtful whether the criminal investigations or subsequent prosecutions—if that is where they lead—could shed enough light on the bigger picture and wider practice of what went on at the News of the World and the other newspapers or on the questions about the police response to the allegations at the time, particularly in relation to the Dowler case. Nevertheless, I have no intention of prejudging or second-guessing the outcome of those criminal investigations. That would be irresponsible. Given the risks of conducting a full inquiry at the same time, it appears inevitable now that we will have to wait for the outcome of the police investigation before any independent inquiry can properly get to the heart of the matter, the core of the business. In addition to the assurances already given to the House by the Attorney-General, I hope that Ministers will undertake to return here at that juncture so that the matter can then be properly considered by the House. I join colleagues in expressing the House’s determination and resolve to ensure that we get full answers to every one of the very serious questions that have emerged in recent days and weeks.

Injunctions

Dominic Raab Excerpts

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

As I indicated at the outset, it is possible for Parliament to enact changes to the law. The fact that the courts may not be able to and may not seek to control everything that might be said in breach of an injunction does not necessarily mean that that injunction does not have a valid purpose. It can at least limit the circulation of the damage, even if it cannot stop it. So for those reasons—we do not live in a perfect world—I do not think that the fact that an injunction can be breached and may be breached by some individuals invalidates it, although a point can sometimes be reached where a matter becomes so public and the currency so total that the existence of the injunction becomes pointless.

[Mr Dominic Raab (Esher and Walton) (Con)]

I welcome the review. Twittergate is just the latest example of judicial legislation distorting the balance of human rights under article 8 of the European convention. There have been other examples recently, including the defeating of deportation orders under article 8 in relation to convicted criminals. The Attorney-General rightly points out that there is a big difference between judges interpreting the law and judges making new law, which is for elected representatives. Does he agree that the Human Rights Act has at least contributed to undermining that separation of powers?

[The Attorney-General]

In constructing the Human Rights Act, I do not think Parliament can be described as anything other than open-eyed as to what it intended to do about privacy law. It debated the issue extensively, there was a great deal of polemic on the Floor of the House, and it put in section 12 to try to emphasise that the balance should be in favour of freedom of expression. I am well aware of the fact that the way that interpretation has taken place has come in for criticism. It is also true, and the point was made by the Lord Chief Justice on Friday, that a remarkable feature of many of these orders is that they have never been appealed or taken further once they have been granted, so the development of case law in this area has as a result, on some of the matters complained of, not necessarily taken place. We clearly set out a framework and asked the judiciary to interpret it. Whether we were right or wrong to do that is a matter of legitimate public debate.

Voting by Prisoners

Dominic Raab Excerpts

Thursday 10th February 2011 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

Thank you, Mr Speaker. I wish to pay my thanks to the Backbench Business Committee, and to pay tribute to my hon. Friend the Member for Kettering (Mr Hollobone), who initiated an earlier debate on the same subject, which was extremely useful.

It is a privilege to wind up this debate after so many excellent speeches from all parts of the House. There have been insightful contributions on the criminal justice aspect on both sides of the debate: my hon. Friend the Member for Witham (Priti Patel) was on suitably robust form and the hon. Member for Carshalton and Wallington (Tom Brake) made an eloquent contribution on the other side of the argument. We have heard compelling arguments about democratic accountability from my hon. Friends the Members for St Albans (Mrs Main) and for Gillingham and Rainham (Rehman Chishti). There were valuable contributions on the history of the convention from my right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) and my hon. Friend the Member for Aldridge-Brownhills (Mr Shepherd).

I will start even further back. The House will recall that Alfred the Great was notorious for smiting Vikings, but he was not just a bruiser.

[Chris Bryant]

The hon. Member for North East Somerset (Jacob Rees-Mogg) can remember. He was there.

[Mr Raab]

I give way to my hon. Friend.

[Jacob Rees-Mogg (North East Somerset) (Con)]

I thank my hon. Friend for giving way. King Alfred was a good Somerset man who did his duty to rescue us not only from Vikings, but from high taxation.

--- Later in debate ---

[Mr Raab]

In the year 888, he was translating “The Consolation of Philosophy” from Latin and he asked a basic existential question: are we determined by fate or do we possess free will? He answered in favour of free will. When he translated the Latin word “libertas”, he used the word “freedom”—“free” as in free from bondage, and “dom”, for which we would now say “deem”, meaning “conscious” of being free. Freedom was linked to free will and the basic idea that we take responsibility for our actions. That is how the word “freedom” entered our language in the first place, and it is what today’s debate is about.

If a person commits a serious enough crime to be sent to prison, they forfeit the right to vote, along with their liberty, for the limited period of their incarceration. We have come a long way since the year 888, but our tradition of liberty sustains the basic idea that with freedom comes responsibility. When the European convention on human rights was negotiated in 1949, that remained a guiding principle, so when the French proposed including a right to vote it was rejected because the draft contained the words “universal suffrage”. The British delegate, Sir Oscar Dowson, a former Home Office legal adviser, stated:

“In no State is the right to vote enjoyed even by citizens without qualifications. The qualifications required differ from State to State…And it is our view that the variety of circumstances to be considered may justify the imposition of a variety of qualifications, as a condition of the exercise of suffrage”.

[Robert Halfon]

I thank my hon. Friend for giving way and for his important point. Does he agree that the founders of the European convention on human rights, who did what they did because of what had happened in world war two, would never have wanted to give Rudolf Hess and Albert Speer the vote?

[Mr Raab]

My hon. Friend makes an important point, and of course he is absolutely right.

The context of Sir Oscar Dowson’s comments is that when the convention was negotiated Britain barred peers, felons and the insane from voting. The British argument was accepted and the French proposal withdrawn, and when the right to vote reappeared in the protocol, not the convention, two years later, the words “universal suffrage” had been deleted. There can be absolutely no doubt that the protocol was explicitly designed to allow states to ban prisoner voting and impose other restrictions. As a matter of international law and a basic canon of treaty interpretation, Strasbourg should have taken that into account if there were any doubt, but it failed to do so. In doing so, it undermined international law.

Of course, that was not a one-off case. From the time of the Tyrer case against Britain in 1978, Strasbourg started referring to the European convention as a “living instrument”. The Court said that its job was not just to interpret and apply convention rights but to expand and update them. The judges assumed the powers of legislators, without any mandate or any basis in the convention, and in defiance of international law and the basic democratic principle that states are bound by the international obligations to which they freely sign up.

From then on, in the UK alone, Strasbourg rewrote the law of negligence as it applies to the police in the Osman case; created novel fetters on our ability to deport criminals and terror suspects in the Chahal case and a whole series of article 8 cases since; and overturned both a British jury and the will of Parliament to dictate the rules governing how parents may discipline their children. There are many other examples. Let me be clear about this: Members may reasonably disagree on all those difficult policy and ethical questions, but all democrats must agree that they are questions to be answered by this House—by elected law makers.

One concern expressed in the debate has been about the idea of Britain defying a court, undermining the rule of law. As a public international lawyer, trained and practised, I pay close attention to that matter. However, there is another factor to consider. Impartiality and independence are the pillars of the judicial function, and they begin to crumble if judges are both interpreting and creating human rights law at the same time. That is now a far greater threat to the rule of law, the separation of powers and our basic notions of democratic accountability.

The motion is not about pandering to some populist agenda. I fully support prison reform, as other Members throughout the Chamber have said they do, including more drug rehabilitation, more training and more work in prisons. Nor is it anti-judge. Some of our most senior judges are now openly criticising Strasbourg—the Lord Chief Justice, the President of the Supreme Court and Lord Hoffmann, who until recently was our second most senior Law Lord. Lord Hoffman did so not just in the recent Policy Exchange report, but way back when he complained that Strasbourg had proved

“unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe.”

That was back in 2009.

The fact is that we face a serious abuse of power—there is no other word for it. I therefore want to put this question to the House: how perverse would a Strasbourg ruling have to be before we, as British lawmakers, stood up for the national interest and our prerogatives as democratic lawmakers? If not now, on prisoner voting, when? I make this prediction: if we do not hold the line here, today, there will be worse to come—far worse—in the years ahead.

What happens if we agree to the motion? Strasbourg could rule against us and we could face compensation awards. However, the architects of the convention introduced a vital safeguard: Strasbourg cannot enforce its own judgments. The worst that can happen is that we remain on a very long list of unenforced judgments to be reviewed by the Committee of Ministers—there are about 800 such judgments at the moment. There is no risk of a fine and no power to enforce compensation, and absolutely no chance of being kicked out of the Council of Europe.

A number of compromise solutions have been mooted, and I have paid careful attention to each and every one. The problem is that giving the vote to prisoners sentenced to six months or less or a year or less is not a compromise, because it is bound to be rejected by Strasbourg. The Court made that crystal clear in the Frodl case last year, and the Council of Europe commissioner for human rights, Thomas Hammarberg, stated that unequivocally on Radio 4 last Saturday. Such so-called compromise proposals are the worst of all worlds. We buckle and accept the erosion of our democracy and Strasbourg rejects the compromise anyway.

It is time that we drew a line in the sand and sent this very clear message back: this House will decide whether prisoners get the vote, and this House makes the laws of the land, because this House is accountable to the British people. I commend the motion to the House.

Question put.