Post Office (Horizon System) Offences Bill (Instructions)

Debate between Joanna Cherry and Alistair Carmichael

Monday 29th April 2024 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I thank the hon. Member for Motherwell and Wishaw (Marion Fellows) for organising the briefing for us today. I attended it; I think there was only one sub-postmaster and one solicitor present at the time, but it was useful to hear from them. I pay tribute, as I have done before, to her for the work that she has done.

I suppose it is a consequence of the motion before the House that we have emphasised its procedural aspects more heavily than the outcomes, but the House today needs to focus on the best possible outcomes for sub-postmasters. If there had been insistence on the Northern Ireland Assembly drawing up legislation, that would have required a 12-week minimum statutory consultation period, and that would have produced a worse outcome for sub-postmasters in Northern Ireland. For that reason, I thought that the direction in which the Minister moved was absolutely sensible.

I am afraid that I do not take the same view on the position in Scotland. Including Scotland in the Bill would leave unresolved issues, and the Bill would therefore leave Scottish postmasters in a poorer position than those in the rest of the country.

[Joanna Cherry]

rose—

[Mr Carmichael]

Will the hon. and learned Lady let me explain why I take that view? On 16 January, the Lord Advocate made the following observations, and I think that she is quite right:

“The vast majority of the cases that may be affected by the issue were cases in which the accused pled guilty to the offence. Often, those pleas were tendered under legal representation. Although it is impossible to comment on every case, prosecutors do not mark cases to proceed in the absence of corroboration—they simply do not do that. Defence solicitors do not advise clients to plead guilty in the absence of corroboration. In cases that proceed to trial, the sheriffs do not convict in the absence of corroboration. As a result, it is reasonable to infer that, in cases that resulted in a conviction—whether by guilty plea or conviction after trial—other evidence was available that was capable of supporting the finding of guilt…As I have explained, not every Horizon case will involve a miscarriage of justice. In some cases, there was sufficient evidence to support a criminal conviction.”—[Scottish Parliament Official Report, 16 January 2024; c. 22-27]

That is the view and analysis of the Lord Advocate. Essentially, what she is saying—I have always believed that this is right—is that because of the way that the laws of evidence and procedure operate in Scotland, and in particular because of the need for corroboration, qualitative safeguards that bring better outcomes are available to people who are before the Scottish courts. The presence of corroboration is an important part of Scots law, and the Lord Advocate is right to highlight that. As she has raised these issues, I believe that it is better for legislation to be made in the Scottish Parliament, where the equivalent to this stage would take place in a committee, and not in the Chamber, as is the case here; again, that is preferable.

[Joanna Cherry]

Does the right hon. Gentleman not appreciate that the concerns that the Lord Advocate has expressed are similar to those expressed by lawyers from across these islands about this legislation? Ultimately, it is Parliament’s decision whether to exonerate. Has he read the evidence given to the Criminal Justice Committee, and does he disagree with Professor Chalmers, who said that the purpose of the Bill is to make sure that convictions can be quashed, so that innocent people can be compensated quickly; that the scandal originated with a faulty computer system and dubious investigating procedures in a UK-wide institution; and that the scheme for compensation is UK-wide, so the paving legislation should be UK wide? That is not my opinion; it is the opinion of one of Scotland’s most pre-eminent criminal lawyers, the regius professor at Glasgow. Can the right hon. Gentleman tell me why he is wrong?

[Mr Carmichael]

The hon. and learned Lady has said herself that this is a matter of opinion. I put great confidence in the opinion of Professor Chalmers, but I come to a different conclusion, because the route to conviction lay through civil servants employed by the Scottish Government—[Interruption.] As the hon. and learned Lady reminds us, almost three decades ago, I was one of them, so I understand perfectly how the system works, and I also understand that if I ever got it wrong—incredible though that suggestion may seem—the accountability for my mistake would be through the Lord Advocate.

--- Later in debate ---

[Mr Carmichael]

The hon. Lady knows that I agree with her a lot more than either of us would ever admit, but on this matter, there is clearly a difference of opinion. The decision on whether the route to exoneration should be through the Scottish Parliament or through this place is a political choice.

[Joanna Cherry]

I sense that the right hon. Gentleman is reaching his peroration, and as we are both Scots lawyers, I wonder if he will join me in correcting the Labour party spokesperson, the hon. Member for Bethnal Green and Bow (Rushanara Ali). She said repeatedly that the Scottish judiciary did not want this legislation. The right hon. Gentleman will know that the Scottish judiciary, like the English judiciary, would never comment on the desirability of legislation. Does he agree that the hon. Lady was getting mixed up with the Lord Advocate? Perhaps she should have a chance to correct the record later, because it is very important that the House does not give the impression that the Scottish judiciary have been criticising Parliament when they have not.

[Mr Carmichael]

I say gently to the hon. and learned Lady that the Scottish judiciary would never comment publicly because, in my experience, they have ways of making their views known. But she is right to point out that on this occasion, the Opposition spokesperson confused the office of the Lord Advocate with the judiciary. I would say to the hon. and learned Lady, however, that that in itself demonstrates to me the need for this matter to be dealt with where the expertise lies, which is the Scottish Parliament.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Joanna Cherry and Alistair Carmichael

Consideration of Lords amendments
Monday 18th March 2024 Commons Chamber

[Mr Carmichael]

Would there not be some sense in allowing Home Office decision makers to take account of the Home Office evidence that has been gathered together in the way that the hon. and learned Lady describes?

[Joanna Cherry]

The document was withdrawn for a while and updated in January, so I only saw it and read it in detail just before my trip to Rwanda. I was really quite appalled that Government Ministers could continue to state that Rwanda is a safe country from a human rights perspective in the face of the evidence that they themselves collated. I really want to hear a colourable answer to that point.

Before the Joint Committee on Human Rights left the UK, we took steps to find out about the human rights situation in Rwanda. The evidence that we heard gave me great cause for concern about the curtailment of freedom of expression in Rwanda for those who wish to criticise the Government. The US State Department, Amnesty International and Human Rights Watch have reported evidence of unlawful or arbitrary killings, disappearances and torture. One area of particular concern for asylum seekers sent from the UK is the protection of same-sex-attracted and transgender people. The Foreign Office travel advice for Rwanda warns British gay people and British trans people that individuals

“can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT+ individuals”.

When I put that to Government officials and others with whom we met, I was reassured that the Rwandan constitution contains a general protection against discrimination, which it does, but sexuality and gender identity are not listed there. Crucially, nobody was able to show me any evidence that a gay or transgender person has ever availed themselves of the anti-discrimination protections in the constitution. People were at great pains to tell me that homosexuality and transgenderism are not criminal offences in Rwanda. Sorry to be light-hearted, but whoop-de-doo. As a lesbian, I can tell the House that the mere fact that one is not criminalised is only the start of the story.

I think Rwanda is where the UK was on LGBT rights about 50 years ago. Yes, it is ahead of many other African countries because it is not illegal to be gay or trans in Rwanda, but there are no positive rights and no equal rights protections. We need to acknowledge that, because there are people who come to the United Kingdom because they are gay, transexual or transgender, and they know that we in the United Kingdom have great, world-class equal rights for gay and transgender people. If they are coming here for those protections, they are perfectly entitled to be concerned about being sent to a country such as Rwanda, where no such protections exist.

Many others come to this country because they were dissidents in their country—they have criticised their Government. They come to the United Kingdom, because —so far at least; touch wood—we still have freedom of expression. I am not sure that Rwanda can be described as having the same freedom of expression protections that we enjoy in the UK.

Asylum seekers also come to this country who have been human rights defenders in their country and have been persecuted for it. Again, touch wood, we in this country still have full human rights protections. That, based on the evidence of the Home Office itself, is not the position in Rwanda.

Covid-19: Contracts and Public Inquiry

Debate between Joanna Cherry and Alistair Carmichael

Wednesday 7th July 2021 Commons Chamber

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

If I may, I am going to return to the subject of the motion, which is about methods of scrutiny of the United Kingdom Government.

It has been clear from the outset of the current Prime Minister’s term of office that this is a Tory Government who abhor scrutiny. Shortly after he took office, the Prime Minister tried to shut down Parliament completely. He did so because he was finding its scrutiny of his Government’s hapless progress towards Brexit tiresome. But it is Parliament’s job to scrutinise, and no matter how tiresome hon. Members on the Government Benches may find the subject of the debate, it is actually rather important.

I say to the hon. Member for South Suffolk (James Cartlidge) that I suspect that his constituents, like mine, also care about how their hard-earned money is spent by his Government. They are rightly concerned because two court cases so far—there are others in the pipeline—have revealed that there are major question marks over whether this Government have abused their privilege to line the pockets of their mates.

This Parliament, when it was unlawfully prorogued, sat again only because of the intervention of the courts. That is an indication of how important the rule of law is, and one of the many reasons why the UK Government want to reduce both the scope and the availability of judicial review.

An unlawfully prorogued Parliament is dangerous for democracy, but so is a supine Parliament, and this Parliament is, frankly, a shadow of its former self. Regulations impinging on our basic civil liberties during the covid crisis have been rushed through with the minimum of parliamentary debate. It is not just urgent business regarding covid that this Government treat in a cursory fashion in this Parliament. Earlier this week, we saw a Bill with major implications for civil liberties—including the civil liberties of the Gypsy, Roma and Traveller community, who are protesting outside Parliament this afternoon—go through without proper debate or scrutiny because of the ridiculously short time that the Government allocated to hundreds of new clauses and amendments.

The brutal fact is that this Government do not like evidence-based policy making. In fact, they do not like evidence full stop. They like to run the country and the four nations of this Union free from scrutiny or accountability. They like to do so based on their little Britain, me first ideology and the personal ambition of Ministers—Ministers who have not dared to show their face in the House this afternoon—who look only to their mates for assistance, in return for handsome remuneration and keeping records minimal.

The way in which the Government have handled the emergency covid-19 contracts typifies that approach. The sad thing for British parliamentary democracy is that it is only through judicial processes instigated by concerned citizens acting through the Good Law Project that the full scale of this Government’s chicanery has come to light. So far, the Good Law Project has brought two successful legal challenges against the Government’s handling of pandemic-related procurement, but there are quite a few more in the pipeline, and I suspect there will be more than two successes to come. The two successes so far have established that both the former Health Secretary and the current—for now—Chancellor of the Duchy of Lancaster acted unlawfully. That is a really serious matter, and we would be failing in our duty as an Opposition if we did not bring it to the Floor of the House.

Over and over again, we have heard representatives of the Government try to argue that in the case of the Good Law Project v. Minister for the Cabinet Office, the Court did not find the Government guilty of any actual bias. That is a total red herring, however. The Good Law Project did not seek a finding of actual bias; it sought a finding of apparent bias, which is a well-understood legal term. The test for apparent bias in the law of England, and indeed that of Scotland, is whether the

“circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger,”

that the decision maker was biased. That is the test that the Court applied.

Looking at the contract awarded by the Cabinet Office, the Court found that a fair-minded and informed observer would conclude that there was a real possibility that the Government had awarded a significant contract to a company on the basis of bias. In layman’s terms, that means that the Court found that the Cabinet Office awarded a lucrative contract on the basis of favouritism. Even in the middle of a crisis, that is illegal. It is illegal because that money is not the Government’s, but the taxpayer’s. It is my constituents’ money; it is the money of the constituents of the hon. Member for South Suffolk; and it is the money of all our constituents.

These court processes have brought to light emails that would never otherwise have got into the public domain. These emails show that the much-maligned newspaper The Guardian newspaper and openDemocracy were right last year when they alleged that there was institutional cronyism at the heart of the British Government.

[Mr Carmichael]

I very much share the hon. and learned Lady’s analysis of the work of openDemocracy and the Good Law Project. On the subject of emails that are only now coming into the public domain, does she agree that intervening to delay the publication of data relating to care home deaths in Scotland, as a story in The Scotsman indicates that Fiona Hyslop did, was, at the very least, ill advised?

[Joanna Cherry]

I am not aware of the detail of that allegation, but, like the right hon. Gentleman, I was elected by my constituents—for my sins—to come to Westminster to scrutinise the actings of the British Government. Just earlier this year, a whole bunch of MSPs were elected to scrutinise the actings of the Scottish Government, and that is for them to do. Today, I am focusing on this Government.

The point I want to make—I am coming to a close, because I know others want to speak—is that the sunlight that these two judicial reviews have shone on the Government’s back-door dealings shows why a judge-led inquiry is so important. Even when this Government lose in court, they cannot tell the truth about the reasons why they lost. That is why the power of a judge-led inquiry to compel witnesses and the production of documents will be so important. Not telling the truth, or indeed not telling the whole truth when on oath is a very serious matter. In a judge-led inquiry, doing so would have the sorts of repercussions that ought to make most people—even in this Government—think twice. Witnesses are far less likely to get away with prevarication and obfuscation under questioning from lawyers, supervised by a judge. An approach to government that involves saying, “The cat ate the paper trail” or, “My redaction pen is my trusty shield” will not cut it in a judge-led inquiry. Obstructing judicial orders for documents constitutes contempt of court, and experience shows that that threat in a judge-led inquiry often brings to light records that would otherwise have found their way to the virtual shredder.

There is something wrong with British democracy, in that a Government elected by only 43.6% of the UK-wide vote can rule like a dictatorship, treating this Parliament as an inconvenience. Seen from Scotland, the situation is even worse: this Government have no mandate in Scotland, and the party that does have a mandate—the Scottish National party—is frequently treated with contempt in this House. In the past few days, we found out what most of us already suspected: the Prime Minister has so little respect for democracy in Scotland that he wants to close Scotland’s Parliament down. He does not need to worry too much about this Westminster Parliament, because he has already emasculated it.

The rule of law is our only hope. That is what the Good Law Project’s successful cases show: the only way that we can get to the truth of what this lot have been up to is by litigation and a judge-led inquiry. No wonder they are so desperate to limit the scope and availability of judicial review, and no wonder they fear a judge-led inquiry.