William Cash
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European Convention on Human Rights
William Cash Excerpts(11 years, 10 months ago)
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Mrs May
The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.
Mrs May
The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House
“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
Mr Cash
I am much encouraged by the line the Home Secretary is taking on all this. Over and over again, as she knows, I have raised the question of the interpretation by the courts of matters relating not only to the European convention but to European Union law. Is she taking the opportunity, by one means or another, to have discussions with those in the superior hierarchy of the judiciary? To bolster the assumptions that lie behind what she is saying in defence of the sovereignty of this Parliament, does she want to put the words “notwithstanding the Human Rights Act 1998” in front of the legislation so that the courts are under no misapprehension about what they are to do?
Mrs May
I think my answer to my hon. Friend will be shorter than his question. The motion makes it absolutely clear what we are asking people to do today and I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.
Since the Human Rights Act was implemented in 2000, it has become clear that the existing immigration rules do not properly set out how article 8 should be qualified in real cases. As a result, foreign criminals and those who failed to meet the requirements of the immigration rules and who should not be allowed to come to or stay in the UK have increasingly been able to challenge their decisions in the courts on the grounds of a breach of article 8. So, for those who do not meet the requirements of the rules, grants of discretionary leave outside the rules on article 8 grounds have risen steadily to the point that in 2010 the UK Border Agency granted discretionary leave on the basis of article 8 in around 9,500 immigration cases. That means that in 9,500 cases, applicants could not meet the requirements of the immigration rules but were allowed to stay in the UK none the less. In addition, reflecting established policy on dealing with such cases, they were automatically granted full and immediate access to the benefits system. Perversely, that placed them in a better position than applicants who had met the immigration rules and were denied such access while they served a two-year probationary period.
Yvette Cooper
My hon. Friend makes an important point, because the Joint Committee on Human Rights does important work. The status of the motion is unclear, because we do not know exactly how the Home Secretary expects it to operate. For example, we know that the new immigration rules affecting foreign criminals, which were set out last week, explicitly refer to how article 8 should be addressed. We believe that is legitimate, but other immigration rules do not make such reference. The rules on foreign criminals also allow the courts to consider exceptional cases, but the process remains deeply unsatisfactory and confused. The Home Secretary has said that she wants to send clear signals to the courts, but she is not sending clear signals to the House.
Mr Cash
Is the Home Secretary aware of the series of speeches made by the Lord Chief Justice to the Judicial Studies Board and others? He has made it abundantly clear that in his opinion the judiciary, including the senior judiciary, have given far too much attention to the Strasbourg precedents and not enough to what he describes as the “golden thread” of the English common law. He says that it is therefore essential that we get this right and do not engage in generalised waffle about the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. The hon. Gentleman has had two interventions that have taken up speaking time. I am sure he would not want to do that, in case he wants to catch my eye later.
Mr Jack Straw (Blackburn) (Lab)
The hon. Member for Canterbury (Mr Brazier) has just said that he wants the House to discuss the wider issues of immigration, and I entirely agree with him. The immigration rule changes, to which the motion refers in a coda, go much wider than simply the interpretation of article 8 in respect of the deportation of foreign criminals. I would say, parenthetically, to the Home Secretary that while I support many of the other changes, I remain concerned about some of them, not least the removal of the right of appeal in family visit cases, which I introduced in the late 1990s. That measure has worked well and fairly, and in my experience it has led to abuse in very few cases. I therefore support the motion before the House in the context in which it has been brought forward—namely, to deal with the problem of the deportation of foreign national criminals.
The particular case that got me heavily involved in this matter as a constituency MP was the death in a motor accident of young Amy Houston. She was walking with her brother in Newfield drive in my constituency when a vehicle driven by an asylum seeker, Mr Mohammed Ibrahim, knocked her down and killed her, although she was alive for six hours after the event. He drove off without stopping or giving up any details. Amy’s bereaved father, Paul Houston, lives in the constituency of my hon. Friend the Member for Hyndburn (Graham Jones), who will give the House many more details of the case.
That asylum seeker, an Iraqi Kurd, was convicted of a series of offences arising from the accident. He had no driving qualifications, he was driving while disqualified and uninsured, and driving without a valid test certificate. Subsequently, he was cautioned by the police for the possession of cannabis and for burglary and theft. He was again convicted of driving while disqualified and uninsured, and, six years after the accident, convicted of the offences of harassment, damage to property and theft, for which he was fined. In 2008, he was also arrested and fined £200 for offences arising from a dispute with the woman he subsequently claimed to have married. I shall call her Mrs Smith, as there are children involved and I have no wish to involve them.
That man’s rights of appeal were completely exhausted, and he was due to be sent back. When the matter went to appeal—at Mr Houston’s behest and mine—to an immigration judge, one of the points that the judge regarded as acting in the man’s favour was the fact that the Home Office had made no effort to deport him between 2002, when his right to remain here was exhausted, and 2006. That was because it would not have been safe to deport Mr Ibrahim to Iraq at that time, for reasons of which everybody was aware. Notwithstanding that, it was decided that the relationship he had formed with Mrs Smith, by whom he had had two children, was sufficient to justify a family life entitlement under article 8.
I have to say—I and my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) looked at this—that the evidence of a successful family life was very flimsy indeed. There was total confusion in the court about whether the two had been married and where the marriage had taken place—in Blackburn or Birmingham. Those two places are different and separated by well over 100 miles. There was dispute about the date. On her own admission, Mrs Smith visited this man only once during the nine months in which he was detained as an immigration detainee.
At the behest of my right hon. Friend, the former Home Secretary, there was a further appeal. We had hoped that the courts would use this as a test case to change the law in the direction that the current Home Secretary now rightly seeks. I regret to say that, sadly, that did not happen. As a result, I strongly believe that the only alternative, however imperfect, is to bring forward this motion and try to get a change in the approach of the courts.
I want to apologise to you, Mr Deputy Speaker, to the Home Secretary and to the House, because I have to leave shortly before 6 o’clock. I also apologise to the Minister for Immigration, as I shall not be in my place to hear his winding-up speech—unusually, in my case.
In saying all this, I make no criticism of the judiciary who dealt with these cases. One thing I learned from much contact with the senior judiciary is that precisely because the system rightly sees itself as subordinate to Parliament but does its best to interpret Parliament’s will, the courts sometimes get caught by precedent. As senior members of the judiciary sometimes told me in respect of other cases, unless there is an appeal that really hits the spot, which they can then sort out, the only remaining course is sometimes for Parliament to seek to clarify the law.
Mr Cash
I am most grateful. In dealing with the critical question of proportionality, which is what arises in these cases when a balance needs to be struck by the courts either way, does the right hon. Gentleman agree that, in the absence of very express provision, it will be impossible to fetter the court’s discretion—even with a steer from the wording—in the determination? The evidence is that individual judges will tend to continue to make their own judgment, whatever Parliament seeks to say.
Mr Straw
I am afraid that I do not accept that. A feature of our courts is that they are, quite properly, very conscious of the need to apply the law as they believe Parliament has laid it down. I am confident—I cannot be certain—that, had this proposed approach been passed by Parliament and if necessary enshrined in legislation, the courts would have been able to exercise their judgment on proportionality in a way that showed proper respect to the Houston family and to that poor child rather than to Mr Ibrahim and the woman with whom, in my judgment, he formed a relationship solely in order to evade immigration control and deportation.
John McDonnell
Let me finish the point I was making, which is that this is an object lesson in how not to go about influencing others, and certainly not the courts. The immigration rules’ legislative proposals were published only a week ago, and there are 45 pages of amendments to what is an even more detailed document. I ask Members who have read all that material to put up their hand. For the benefit of Hansard, I note that one Member has raised their arm—or perhaps two.
Mr Cash
As an assiduous reader of these documents, may I mention that the Journal Office has advised that the use of an approval motion for such rules is normally subject to negative procedure, although that is not taking place in this instance, and the contention that Parliament’s view is subject to review by the courts is also surprising in the context of article 9 of the Bill of Rights? The Clerks have clearly therefore taken on board some serious points regarding the procedure that is being followed.
John McDonnell
I heard those points when they were made previously, and the House of Commons Library note provided to us describes this as an unusual process—I put it no stronger than that. We are having this debate only a matter of days after having received the detailed and complex documents to which I referred, and I simply do not understand the reason for this haste.
Moreover, the first section of the motion is a statement of the obvious; article 8 is, indeed, a qualified right. It then tries to inveigle us into a commitment to support the immigration rules that we received only a few days ago, and which have not been debated. That is an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.
We would welcome a wider debate. I know this might sound unusual, but, frankly, I want to consult my constituents on the matter. I want to understand their concerns about these new rules. My anxiety is that we are now entering a political phase. During some Members’ speeches, certain other Members were suggesting, “Well, vote against the motion.” I want nothing to do with this motion, but they were shouting and bearding people about voting against the motion—[Interruption.] I do not think the hon. Member for Crewe and Nantwich (Mr Timpson) has been in the Chamber since the beginning of the debate, has he?
John McDonnell
I apologise and withdraw that comment, therefore, but there were definitely shouts of, “Well, vote against it.” Such behaviour draws us into the realm of political knockabout, when we should be having a considered debate about the legislative proposals, and what that results in is clear to anybody who has seen the Daily Telegraph campaign currently being waged, in which it is naming judges and publishing their performance in individual trials. It is saying how many people those judges have deported over the last period. This is taking the form of a witch hunt, therefore, and it is an unacceptable attempt to influence the judiciary. I agree with the hon. Member for Keighley (Kris Hopkins) that there needs to be an honest debate about immigration, but to drag things down into a political knockabout on how to vote on a motion that is irrelevant in respect of any legislation is unacceptable and clouds the atmosphere in this House, and thereby undermines its ability to influence any law court or judge.
The procedure the Government have introduced today completely undermines the credibility of the House on this matter. We need to get back to the normal processes of legislation. We need to ensure Members have the necessary information well in advance of any debate, rather than having it in the curtailed time scale that we have experienced on this occasion—and that is particularly important in this instance, as the matter under discussion is very complex, and very sensitive as well. The full procedures of the House should be followed, including referring the matter for consideration by the relevant Committees of the House which will then report back, and giving Members the time to consult their constituents and then to come to a considered view and arrive at a decision on a vote. That vote may well prove to be unanimous, because people will feel they have been fully involved. No court can interpret this current process as expressing the definitive will of the House, however, because many Members will have not a clue what we are voting on as the information has been provided so late.
Mr Cash
I just wonder whether the hon. Gentleman noticed that the Home Secretary referred to the fact that as yet nobody has placed a prayer of annulment to the immigration rules. I understand the rules were introduced into the House only on 13 June. I therefore suspect that, in the event of such a prayer being put, he has the option—and the right—to call for a vote on the substance of the rules.
John McDonnell
That is exactly the point I was about to make. It is important that Members take their responsibilities seriously and that the motion is prayed against. That will enable us to go through the due process of this House, so we can arrive at a decision that Members will feel party to, and that then will have some substance and significance in influencing future judgments in the courts—taking into account, of course, the separation of powers.
Today’s debate is almost a waste of time. It will be looked on as an embarrassment to the House. If we want to improve the standing of MPs and the Houses of Parliament within our community, this is not the route we should be pursuing. I therefore want nothing to do with this motion. I want my position recorded very clearly. I oppose the motion and I wish to get back to a process of legislating whereby every Member feels fully involved—and involved in a process that is serious and significant, not trite as in this instance.
Mr Raab
The right hon. Gentleman makes a very important point. He crystallises things cogently, but in this case there were no dependants, so what he says does not apply. This is an interesting case. There are many examples where someone has committed a vicious, violent crime—it might be murder or, as in some cases, a sexual offence—has had a child in the meantime and has coerced members of the family, putting them under duress, so that they give evidence, which this person has then relied on to stay in this country. I challenge the view that it is always in the best interests of a child to be with a father of such character and background, but it is very difficult for a court to make that determination when they have evidence in front of them.
I shall discuss one case, which is the most skewed and perverse that I have come across. There are reporting restrictions on it, so I shall be careful about talking about some of the details. It involves an individual raping his partner and then claiming that relationship as part of the family life that he relied on to stay in this country. Many people would regard that as both legally unsustainable and morally perverse.
This is not just about the deportation of foreign criminals; it is about the shifting goalposts of article 8. It is very important to understand that the state of the law now—that static snapshot—is not the sole issue; it reflects years of development. My worry is about the direction in which things are headed. I worry that it will be increasingly impossible to apply border controls, be they in relation to the deportation of foreign national criminals or to other aspects of coalition policy, including cracking down on things such as forced marriage, increasing language requirements or dealing with sham student visas and bogus colleges. All those things will come later because the goalposts will keep shifting. That is a real danger for this Government and for future Governments.
Mr Cash
In his excellent, extremely well researched and powerful speech, my hon. Friend has not yet referred to the manner in which section 6 of the Human Rights Act 1998 impinges on this question. When I was shadow Attorney-General and I invoked our party to repeal the Human Rights Act as part of our policy, it became the policy up to and including the general election. Does he agree that nothing will stop the courts striking down immigration rules as a disproportionate violation of article 8 if they decide to do so?
Mr Raab
I thank my hon. Friend for his intervention. If he is patient, he will find that I will come on to deal with exactly that point, but I wish to avoid duplication at this moment.
I shall now deal with the points made by the shadow Home Secretary. She clearly knows little of the history of this problem or has conveniently forgotten it, so let me remind the House that this problem has been created by the Human Rights Act that her Government introduced. In fairness, there is an additional element to this, because the previous Prime Minister at least recognised that there was a problem. The House may recall his barnstorming 2007 conference speech in Bournemouth. His biggest cheer came when he vowed, all misty eyed, that
“any newcomer to Britain who is caught selling drugs or using guns will be thrown out. No-one who sells drugs to our children or uses guns has the right to stay in our country.”
As a result, we got changes, including the UK Borders Act 2007, to which the shadow Home Secretary referred. Section 32 of that Act deals with the deportation of foreign national criminals—so far, so good. However, by including an express reference to the Human Rights Act in section 33—something that was totally unnecessary and a matter of political choice—the previous Prime Minister, far from strengthening our capacity to deport, fatally weakened our capacity to deport. Ultimately—this is the point that my hon. Friend the Member for Stone (Mr Cash) is making—primary legislation trumps the Human Rights Act, but not if that Act is expressly written into the relevant statute. That may sound like a technical point, but it is crucial to understanding what went wrong with the 2007 Act. The former Prime Minister emasculated his own deportation law, and that speaks volumes about the expediency with which Labour has approached this debate. I believe that the shadow Home Secretary will be a bit less pious about this issue and will perhaps eat a little more humble pie before the House—I am sure that the shadow Immigration Minister will do so. [Interruption.] We live in hope.
I welcome the changes and the motion, but there are questions about whether the changes to the guidance and a mere resolution of this House can deliver the reform we need. I put that precise question to the Lord Chief Justice in November, when he appeared before the Joint Committee on Human Rights. He made it clear that without primary legislation the courts would probably not rein in the expansion and application of article 8 in deportation cases. So I would be grateful if the Minister said what the Government will do if these changes are not fully effective, as at least Government Members hope they will be. Does he agree that if we cannot stop the rot, we will need a new UK borders Act to deal with this issue clearly, categorically, once and for all? It is vital that we can measure the success of the proposed changes we are debating today. Will he ensure that the Home Office now records the number of deportation cases frustrated on human rights grounds, with a breakdown in respect of articles 3, 6 and 8—the main offenders—so that we can measure, see and scrutinise whether this problem gets better or worse as a result of the changes being introduced? The Home Office has not routinely recorded those data. The Immigration Minister went out of his way to ensure that it produced a single quarterly snapshot in 2011—I welcome that and commend him for it—but can he reassure us that that information will be routinely recorded from now on?
Human rights reform is contentious and it needs to take place on three levels: reform of the Strasbourg court; replacement of the Human Rights Act with a British Bill of Rights; and UK legislation to strengthen our border controls.
For my part—others might feel differently—I recognise that our coalition partners are sensitive about the Human Rights Act. I accept that we are unlikely to see the reform that I would like to see in this Parliament and I have already made clear my commitment to the absolute prohibition on torture. I cannot understand, however, why anyone except the lawyers, non-governmental organisations and academics who have made an industry out of human rights would die in a ditch to stop the deportation of serious criminals because it might disrupt their family, social or private ties. To me, as I have said, that suggests a skewed moral compass, not just legal chaos for our border controls.
The changes we need require primary legislation, but we do not have to touch the Human Rights Act to solve this specific problem. It can be done by statutory amendment. I hope that the proposals before us today will tackle the problem—they have my full support—but, if they do not, I hope that all parties will agree to consider very seriously the case for amending the UK Borders Act. We need to draw a line in the sand, to restore democratic control over the criteria for deportation, to stop the ever-expanding list of legal excuses used by some of the worst criminals to stay in this country, to protect the public and, above all, to restore their confidence in British justice. We will do that only by injecting a healthy dose of common sense back into the increasingly perverse application of our human rights law.
Pete Wishart (Perth and North Perthshire) (SNP)
Sometimes, I do not know why we bother. We all turn up for these debates. All those who take an interest in home affairs and issues such as human rights are here, and you are here in your finery, Mr Deputy Speaker. We have heard a very confused speech from the Conservative Secretary of State and we have heard from Labour Members, ever compliant on human rights and home affairs. We have not heard from the Liberals; I do not know whether we will, but I would be interested to hear what they have to say. We are all here, but we are all more or less wasting our time. Why not just get on with it and get The Daily Telegraph, along with the Daily Mail, to conduct our immigration policy? That is what we are getting, with immigration rules that are practically out of The Daily Telegraph’s leader column.
What an absolute farce this afternoon has been. What on earth are we debating? I do not have a clue. We have had three different explanations from the Government about what we are being asked to consider. We are asked to consider that article 8 is a qualified right. Yes, that is a restatement of the bleeding obvious, as I said earlier, and we all know that. We are then asked to support the Government’s immigration rules. Does that mean the immigration rules in their totality, as the Home Secretary said when I intervened, or part of them? Or are we just giving a direction to the judges? I have absolutely no clue whatsoever what we are being asked to consider this evening. It is a total waste of time and a farce. As the hon. Member for Hayes and Harlington (John McDonnell) says, we need a proper process to consider this very important subject—and it is important.
Pete Wishart
I do not know whether the hon. Gentleman is being helpful, but that seems to be another interpretation. When he sums up, the Minister for Immigration must tell us exactly what we are voting on this evening, because I do not know. I cannot support the immigration rules in their totality, so if the Government are saying that we have to accept them tonight, I unfortunately cannot support them and will press the matter to a Division. We cannot accept the rules as they stand. This is a very important debate condensed to four hours and a lot of nonsense.
Jeremy Corbyn
I am sorry to disappoint the hon. Gentleman, but I cannot help him by describing what the Liberal Democrats are doing today, because I am not responsible for them. However, having been involved in a lot of human rights, anti-terrorism and immigration debates over the many years I have been in Parliament, I know that there are different allies in different Parliaments. Sometimes there are Conservatives one agrees with, sometimes there are Liberals one agrees with, and sometimes there is nobody one agrees with, but that’s life, and we plough on.
Mr Cash
The hon. Gentleman makes a good point, because he and I have agreed on several matters, including the Chagos islanders. May I offer him the thought that absence of the Liberal Democrats may have something to do with the lack of clarity in the motion? If it was as clearly expressed as I would like, notwithstanding the Human Rights Act and all that goes with it, I rather suspect that there might be some difficulty for those on the Liberal Democrat Benches, because they would want it to be less clear than I would.
Jeremy Corbyn
I thank the hon. Gentleman for his intervention. I respect him for standing up for his principles and acknowledge that he and I have agreed on quite a lot of occasions, particularly on the disgraceful treatment of the Chagos islands by all Governments over very many years. We hope that the European Court of Human Rights, which is now hearing that case, will come to a good judgment, which we expect imminently.
When I intervened on the hon. Member for Esher and Walton (Mr Raab) about the torture and ill-treatment of people in other jurisdictions, he did not agree with me, and that is fair enough; he does not have to. However, he should understand that the European convention was a very important step in improving human rights standards around the world. The principle of a continent-wide human rights court has been copied to some extent on other continents—for example, central America has such a court. The idea of an international convention such as the United Nations convention against torture is a very powerful one. That is why I disagreed so very strongly with Tony Blair, when he was Prime Minister, on his agreeing to the deportation of people to jurisdictions that had not signed the international convention on torture. That undermined the convention, damaged the human rights of the individual, and damaged us as a country that is supposed to stand up for human rights and justice.
I cannot really describe what we are debating today, and I do not think that the Home Secretary can either. I look forward to a full debate on her proposed immigration rules, because some of them will have a devastating effect on the family life of very poor people in this country who have migrated here, work hard, clean our floors, look after our children, drive our trains, and help our industries to get along. We should also remember that immigration in this country has helped to create our relatively high standards of living. It does the House no credit when people condemn all immigration as an economic problem. Immigration is an economic benefit to our society, and it is about time we publicly recognised that.
Mr William Cash (Stone) (Con)
I agree with what the hon. Member for Islington North (Jeremy Corbyn) said about some of the benefits of economic immigration, but there is something else that I would like to put on the record. As many of us know, the best way to keep a secret is to make a speech in the House of Commons. I sincerely hope that that does not apply to the speeches that I have heard today—particularly, if I may say so without any disrespect to Opposition Members, those by my hon. Friends the Members for Esher and Walton (Mr Raab), who made a superbly forensic speech, and for Witham (Priti Patel), and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox).
Although my remarks will not necessarily be entirely consonant with wholehearted support for these proposals, for reasons that I will explain, I still genuinely support the idea that it is important to give an indication of the Government’s views. A great deal of hard work has been put into this. The more I look at it, the more I realise that the Government’s advisers have really applied themselves to it. As we now know, the immigration rules were tabled on 13 June but have not yet been decided on by the House and will, I suspect, be subject to an annulment prayer because Labour Front Benchers will decide that that is what they want to do.
Irrespective of that general sense of support for these proposals, there is also a rather unfortunate element that was indicated in the excellent speech by my hon. and learned Friend. He said, using very carefully chosen words, that the proposals will create an impression or perception whereby, in some of the national tabloid press and elsewhere, they will be construed, as we have already read, as being simply about slamming criminals and unacceptable persons who should not be allowed in this country in the first place and should be deported. I think that that general perception has been conveyed and that, given that the best way to keep a secret is to make a speech in the House of Commons, the spin that is put on this will carry the day.
However, that will not affect the courts, which will make their own decisions. Moreover, the proposals are geared in the direction of indicating to the courts that the general will of Parliament is to move away from the free-for-all of applying Strasbourg precedents, and that Parliament is making a statement that must be had regard to. Indeed, in line with what I said in an intervention, that has been a matter of concern in the generality of judicial interpretation, which has been criticised by the Lord Chief Justice in a series of very measured speeches. On one occasion about two years ago, he strongly advised his brothers and sisters in the judicial profession in the High Court that the most important matter for a judge is to uphold the common law. I think that he said it in those terms. He went on to say that they had to be much more careful about not simply adopting Strasbourg precedents in the application of their judgments in English courts and, by implication, that they should have more regard to what Parliament has said.
This exercise is being conducted with great complexity. One only has to look at the new immigration rules, which I have in my hand, to notice that they contain strong gearing elements. Whether they will have any effect on certain members of the judiciary remains to be seen. Individual cases, some of which have been mentioned, raise difficult questions of family law and relationships. As has been said, we hear about such cases in our constituencies. I do not think that what we heard earlier was a rant. There is an important point here. I have been confronted by some difficult family issues in the field of immigration. We ought not to be dismissive of the importance of forming a proper and proportionate judgment about these questions.
Important questions have been raised in the debates in which I have taken part over the past few years on the interpretation of statute law. An example is the Jackson case, which was not to do with human rights in the same context as this matter, but was to do with interpretation by the judiciary. Tom Bingham, the late, lamented Lord Chief Justice, took to task two Law Lords in the Jackson case. He said not only in the judgment but in his speech that they were exceeding their role by asserting judicial supremacy over Parliament.
It is therefore essential that we pay tribute to the intentions that lie behind this exercise, while at the same time being clear that the proposals lack clarity. The intentions that lie behind this extremely careful operation will not necessarily produce the results that many people expect. Given the latitude that will still be conferred on judges and the rules of proportionality that have to be applied, I anticipate that there will be ructions down the line when the rules are applied by individual judges.
I suspect that the lack of clarity has something to do with the attitudes of some in government, some in the civil service and some in the higher reaches of the judiciary and in certain chambers, who have no doubt been consulted. It might also have some connection to the attitude that would have been adopted by the Liberal Democrats if they had been confronted with the kind of clarity that could be provided, but that certainly is not. I can do no more than speculate on that. When I pressed an amendment in the Lisbon treaty debates that stated, “notwithstanding the European Communities Act 1972”, on which 55 of my hon. Friends followed me into the Lobby with enthusiasm, despite the suggestions from the Whips that they should do no such thing, the Liberal Democrats said that if I had pressed the other amendment that I had tabled, which stated “notwithstanding the Human Rights Act 1998”, they would have supported it. I therefore ask whether we are always entirely clear as to what the Liberal Democrats are up to at any given point in time.
There is a further point regarding the motion, although I do not want to be too pedantic or legalistic. It states that article 8 is a “qualified right” and that
“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
I hope that you will forgive me, Mr Deputy Speaker, for pointing out that as we are debating this matter today, on Tuesday 19 June, I construe those words to mean the immigration rules as they now are, not as they are anticipated to be under the proposals printed on 13 June.
On page 1 of the statement of changes, which I suspect will be debated, there is a provision titled “Implementation”, which states that, with the exception of an awful lot of paragraphs,
“the changes set out in this Statement shall take effect on 9 July 2012.”
The other paragraphs
“shall take effect on 1 October 2012.”
It goes on to say:
“However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.”
Therefore, the new immigration rules will not, I am glad to say, have retrospective effect. The implication of the wording in the motion might not be as clear as it should be. That leaves us with the reasonable position that the motion relates only to the immigration rules that are in force at this time. That is a technical point.
I regard the proposals as a steer. The Government are hoping that they will succeed and I wish them well if it is possible for them to do so. However, I think that there will be difficulties of interpretation. The harder the case, the more likely it is that an individual judge will say, “I am not bound by this motion. I am bound by what the law says.” The law that they are construing, from 9 July and 1 October 2012, will be the new rules.
The explanatory memorandum states:
“The new Immigration Rules provide a clear basis for considering family and private life cases in compliance with Article 8. To accompany the new rules, a statement of ECHR compatibility is being published on the Home Office website”.
It goes on to say, although I doubt whether this can be taken for granted:
“The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8…in immigration cases.”
It goes on to say—the distinguished Immigration Minister is sitting on the Front Bench and knows this backwards:
“The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.”
Why have I bothered to read all that out? So far, none of it has been mentioned in the debate, but it is what we are actually debating. It is about whether the courts will be steered by Parliament and apply its decisions—hopefully the right decisions—as a matter of proportionality.
As a number of Members have said, article 8 already provides a qualified right. As ever, I am afraid that the qualification simply has not been explained. Article 8 states:
“There shall be no interference by a public authority with the exercise of this right”—
and then the crucial words, which the shadow Home Secretary conveniently left out—
“except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The words
“except such as is in accordance with the law and is necessary in a democratic society”
prompt the very question that we have to debate. Until I hear the Minister’s reply, I have to say that we are doing so without any confidence that “the law” means the law of this Parliament.
In the democratic society in which we in this country live, those words must mean the law passed in this Parliament. In certain instances, that will exclude decisions taken by the judges in Strasbourg and/or principles adumbrated in Strasbourg but applied in our courts that are contrary to the views expressed by, for example, the Lord Chief Justice. In the context of article 8, it would be nonsense if “the law” meant anything other than the law of the United Kingdom.
We have to resolve that question in the interests of Parliament, which will decide how this country is to be governed. We must decide whether it is to be governed under the European convention on human rights. I believe that we should withdraw from the convention altogether, because we have been continuously besieged by interpretations of it that are contrary to the views expressed by the people of this country as a whole. We can perfectly well legislate to protect human rights, which I would be the first to defend, by passing appropriate laws in our own land according to our own wishes. Many of those laws may well be parallel, if not identical, to those passed under the convention and the Human Rights Act.
The reason I called for the repeal of the Act 10 years ago, when I was shadow Attorney-General, was precisely because of the mess that we are now in. I hesitate to say so, but I anticipated that we would be in this position, as I did over the Maastricht treaty. By keeping ahead of the curve, whether on the convention or the issue of Europe as a whole, we would have saved ourselves a great deal of trouble. We would have defended Parliament’s right to legislate on behalf of the people of this country, who in a democratic society have a right to govern themselves. That is the central principle at the heart of our Parliament. The debate raises questions about that matter but does not entirely resolve them.
I do not say that the courts should in any way be inhibited from making a decision based on their interpretation of the law. However, the law is made here. We have to decide what the law is, and it behoves us to make that law clear. In this case it could have been made clearer by our simply saying, “Notwithstanding the European convention on human rights and the Human Rights Act 1998, we legislate for these immigration rules accordingly.” There would have been absolutely no argument about that in the courts, because the courts would have had to say, “We have no option but to administer the law as laid down by Parliament.” That is the crucial issue at the heart of this debate.
Although I will support the general steer that we are providing, I am afraid that there may yet be difficulties and ructions further down the line, with the courts taking disconsonant decisions that are contrary to the intentions behind the rules, which are supposed to represent a clear basis but do not.
Chris Bryant
I see; otherwise, I would have thought that it was a rather tautological name for a constituency.
My hon. Friend is absolutely right: many of our constituents, in many different parts of this country—in Wales, just as in Scotland and England—have significant concerns about matters relating to the deportation of foreign criminals, and they want them addressed better in the criminal justice system.
I always enjoy listening to the hon. and learned Member for Torridge and West Devon (Mr Cox), not least because I see him as a very successful barrister, and I am aware that there is a convention in this House that if an hon. Member were to ask another Member who practises at the Bar to represent them in court, that Member would be required to provide their services, free, gratis and for nothing. I therefore look forward to him representing me one day in some action, free, gratis and for nothing. [Interruption.] I think he is mouthing something at me, but I am not quite sure what it is. I know that he was seeking to be helpful to the Government and to support the direction of travel in which they are moving, but I noted that he said, “I do not hold out an enormous amount of hope.” I think he was referring to whether this proposal is going to be a successful manoeuvre, which is partly our concern as well. It is not a concern about the direction of travel, but a concern about whether this measure is precisely the right way in which to steer ourselves in that direction of travel.
The hon. Member for Stone (Mr Cash) is one of my favourite Members, because I have debated with him so many times—and he also told me once that he loved me, so I cannot dislike him. He referred to the application of the rules of the European Court’s decisions in relation to the courts in the United Kingdom. He, too, said that whether the decisions we make today will have any effect remains to be seen. I say that—and I think he said it, too—not out of a desire to undermine where we want to go, but to ensure that we securely get change in the direction to which many hon. Members have referred.
My hon. Friend the Member for Wigan (Lisa Nandy) made a moving speech about some of the experiences that she has had personally and in dealing with her constituents. In particular, she mentioned the situation facing many women and children. We would do ourselves a disservice if we were to pretend that the European convention on human rights had done nothing to protect the sorely abused rights of women around the world. In many cases, it has acted as a beacon for what a decent society should look like and how a decent society should go about its business.
The hon. Member for Strangford (Jim Shannon) said that he thought that there would be no Division on the motion. I thought that he might have been having a dig at the hon. and learned Member for Torridge and West Devon when he said that everything goes wrong when lawyers get involved. He was also critical of some of the judges in the European Court of Human Rights because they sometimes did not have the level of qualifications or the amount of experience that we would expect of a British judge. I am certain of the need for reform of the way in which the judges are appointed and the way in which the Court does its business and comes to its decisions, but that is not a reason for us to leave the European Court or to abandon the convention, not least—I might not be able to carry the hon. Gentleman with me on this—because it is a requirement of membership of the European Union that we should be a signatory and adhere to the Court.
The hon. Member for Ipswich (Ben Gummer), who has just fled the Chamber, made a tiny intervention on the hon. Member for Strangford, in which he pointed out the difference between the European Union, the European Court and the European convention on human rights. He was absolutely right to say that that difference was often not recognised.
The Home Secretary made several issues crystal clear in her speech. First, she made it clear that Pepper v. Hart was right, and that it is absolutely right for the courts to bear in mind what is said by a Minister or in a debate in the House of Commons—or, for that matter, the House of Lords—when legislation is ambiguous and the court is uncertain of how to proceed, without breaching article IX of the Bill of Rights, which states that a court is not able to question or impeach a proceeding in Parliament.
Mr Cash
In regard to interpretation, certainly in the field of European law—whether in the European Court of Justice or the European Court of Human Rights—the travaux préparatoires, as they are called, include all sorts of explanatory memorandums and so on. So when we talk about a clear basis, the question is whether it will stand up in due course. I hope that it will, but I am not sure.
Chris Bryant
I am not entirely sure whether I agree with that, so I am afraid that I am going to gloss over it. Perhaps the hon. Gentleman will give me a better lecture on the matter later.
We agreed with the Home Secretary’s point on Pepper v. Hart. We also agreed when she effectively said that she accepted the judgment in the Pankina case of 2010 that the mere tabling of new immigration rules is often not enough to provide legal or political clarity to the courts. We agree with that, which is why we would wholeheartedly welcome a debate in Parliament on these matters. There are those who would say that the process that the hon. and learned Member for Torridge and West Devon referred to earlier has been inadequate in the past.
The Home Secretary also referred to changes in the operation of article 8 in relation to the deportation of prisoners. Again, we completely agree with the direction of travel that she is taking and with what she is trying to do. In a sense, that is what we tried to do in 2007 with the changes in the law, but we accept that further work needs to be done. She said specifically that foreign criminals had used flimsy human rights arguments to remain in this country, and we agree. She said that the broader issue of the other changes, tabled last Wednesday, was a separate issue. We wholeheartedly agree with that, too.
We have some concerns about the process, but I do not want to overstate them. The motion expressly refers to “the Immigration Rules”. It therefore stands to reason that we are debating the rules that are in force today, rather than any that have been tabled but will not come into force until 9 July and could, in theory, be annulled in the future. So I am not sure that this motion provides quite the level of legal clarity that the Home Secretary would like.
Furthermore, there is the question of exactly how much influence a motion of the House has. We have already heard from the shadow Home Secretary about the ruling from the Clerks on that point. A few weeks ago, a motion of the House, which was agreed unanimously, stated that nobody wanting to come to this country from Russia should be allowed a visa if they had had anything to do with the death of Sergei Magnitsky. That motion has no force in law, however; it is just an interesting statement from the House of Commons. It has not been agreed by the House of Lords, and it has not gone through any kind of primary or secondary legislative process.
It might have been better if the measures had been taken in a different order, with the full set of rule changes being followed by the motion that we are considering today. Indeed, many hon. Members have said that there might well be a need for primary legislation to provide the courts with the absolute clarity that they need.
I want to make it absolutely clear that we are supporting the motion today on the understanding that it applies solely to the operation of article 8 in relation to the deportation of foreign criminals. In the words of the Home Secretary, the rest is a “separate issue”.