Safety of Rwanda (Asylum and Immigration) Bill

Debate between William Cash and Jeremy Wright

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[Sir Jeremy Wright]

I suspect that what the hon. Lady is referring to is the statement of incompatibility with the convention on human rights and the Human Rights Act 1998 at the beginning of the Bill. Of course, that provision is there for a reason: to allow the Government, if they so choose, to act in defiance of those responsibilities. That is perfectly proper, and I will come on to explain why I think that is something the Government can properly do.

I am concerned about something a little different. Instead of saying, “We don’t think this is in compliance with international law, but we’re going to do it anyway.”, the Bill is saying, “We think this is in compliance with international law; it is down to us to decide that, and we have so decided.” That feels to me like something that we could not and should not do. It would be concerning enough, in my judgment, if this Bill only tried to deem the UK’s compliance with international law, but it also seems to say that we can deem Rwanda’s compliance with international law.

That is set out in clause 1(5)(b), which goes on to say that, for the purposes of this Act, a safe country includes, in particular, a country

“from which a person removed to that country will not be removed or sent to another country”.

So far so good; that is essential, to me, to doing what the Bill seeks to achieve. However, it goes on to say,

“in contravention of any international law”.

Again, it cannot lie in the hands of this Parliament to decide whether or not a person may be removed to another country in contravention of any international law. It goes on in sub-paragraph (b)(ii) to say that a country would be a safe country

“in which any person who is seeking asylum or who has had an asylum determination will both have their claim determined and be treated in accordance with that country’s obligations under international law.”

It seems to me that the Bill is seeking to say that, if we deem it so, not only is the UK in compliance with its international law responsibilities, but Rwanda is going to be as well. That feels to me not valid and somewhat over-ambitious.

[Sir William Cash]

Does my right hon. and learned Friend, who has great experience as a former Attorney General, agree that the deeming provisions under the European Union (Withdrawal) Act 2018 create a rather similar situation, because we deemed EU law to be UK law? Therefore, on the analogy he has just given, I imagine he would argue—though I think he might even have been Attorney General at that time—that that did exactly the same sort of thing, although I am listening with great interest to the more precise point he is making about the relationship with international obligations, on which I will speak later.

[Sir Jeremy Wright]

I am grateful to my hon. Friend for his intervention. I know, Dame Rosie, you would not want me to abuse the privilege you have given us to range slightly more widely in this debate to range quite that widely, so I will not. He is right that I am making a fairly precise point about what this language appears to me to say. I stress that I do not think it is necessary to include this language in order to achieve the objective that the Government have set in this legislation—with which I have some sympathy, although their methods make me nervous, and I make no bones about that. Worse than unnecessary, it presents some dangers that I do not think we need to present in order to achieve the Government’s objectives.

I suspect my hon. and learned Friend the Minister will tell me in a few moments’ or hours’ time that I do not need to worry about any of this. He may give two reasons for that. First, he may say that the Bill does not mean what I think it means. You will forgive me for saying this, Dame Rosie, but I am increasingly troubled that in this place we answer points such as mine by saying, “Yes, well, it doesn’t really mean that, and we don’t really mean that by it.” We should be concerned as legislators with what the language we are passing into law actually says, not what we meant to say. I am concerned that what this language says is not in accordance with what I am sure the Minister wants to do or what the Government want to do, but it might none the less have that effect, or be taken by others to mean the things that I am concerned about.

When the Bill says what a safe country is, it is potentially confusing two different things. One is deeming our own compliance with international law, which I do not think any country should be able to do, and the other is saying that Parliament resolves to do something even if it contravenes the UK’s international law obligations, which, going back to the previous intervention by the hon. Member for Walthamstow (Stella Creasy), I do think the British Parliament can do. We as a legislature can resolve to do that if we so choose.

We have to decide whether that is a wise and sensible thing to do, with all the ramifications it might bring, but as a matter of law it seems to me that the UK Parliament can, if it wishes, pass a law to say, “Despite or irrespective of our international responsibilities, this is none the less what we want to do.” That is not the same as deeming our own compliance with international law, which I worry this language almost certainly seems to do.

The point I make about the UK Parliament being able to do things even when they contravene its international responsibilities is already in the Bill and reflected in the language of clause 1(4)(b), which points out that

“the validity of an Act is unaffected by international law.”

Quite right. We can, if we so choose, deem a country a safe country for the purposes of domestic decision making if we want to. What I do not think we can or should do is legislate to say that we comply with our international law responsibilities when we do not—and when, crucially, to achieve the objective of this Bill we do not need to.

The second reason the Minister may give for why I do not need to worry myself about all this is that he may say that domestic and international law exist on different planes, and that this legislation is only targeted in any event at domestic authorities, so the Bill could not, even if it chose to try, deem our compliance with international law in actual fact. I would agree with that. It is perfectly true that domestic law and international law operate on different planes, and it is not likely that this Bill could determine any question of international law before any international tribunal.

If that is so, though, why include the language? If it does not have any meaning or legal effect, it does not serve any purpose, but I fear it may send a damaging political signal to other states. The language I am concerned about, which amendments 54 and 55 would remove, is either offensive or otiose, and in either respect the Bill would be better without it.

Online Safety Bill

Debate between William Cash and Jeremy Wright

Consideration of Lords amendments
Tuesday 12th September 2023 Commons Chamber

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

As others have done, I welcome the considerable progress made on the Bill in the other place, both in the detailed scrutiny that it has received from noble Lords, who have taken a consistent and expert interest in it, and in the positive and consensual tone adopted by Opposition Front Benchers and, crucially, by Ministers.

It seems that there are very few Members of this House who have not had ministerial responsibility for the Bill at some point in what has been an extraordinarily extensive relay race as it has moved through its legislative stages. The anchor leg—the hardest bit in such a Bill—has been run with dedication and skill by my right hon. Friend the Secretary of State, who deserves all the praise that she will get for holding the baton as we cross the parliamentary finish line, as I hope we are close to doing.

I have been an advocate of humility in the way in which we all approach this legislation. It is genuinely difficult and novel territory. In general, I think that my right hon. Friend the Secretary of State and her Ministers—the noble Lord Parkinson and, of course, the Under-Secretary of State for Science, Innovation and Technology, my hon. Friend the Member for Sutton and Cheam (Paul Scully)—have been willing to change their minds when it was right to do so, and the Bill is better for it. Like others who have dealt with them, I also thank the officials, some of whom sit in the Box, some of whom do not. They have dedicated—as I suspect they would see it—most of their lives to the generation of the Bill, and we are grateful to them for their commitment.

Of course, as others have said, none of this means that the Bill is perfect; frankly, it was never going to be. Nor does it mean that when we pass the Bill, the job is done. We will then pass the baton to Ofcom, which will have a large amount of further work to do. However, we now need to finalise the legislative phase of this work after many years of consideration. For that reason, I welcome in particular what I think are sensible compromises on two significant issues that had yet to be resolved: first, the content of children’s risk assessments, and secondly, the categorisation process. I hope that the House will bear with me while I consider those in detail, which we have not yet done, starting with Lords amendments 17, 20 and 22, and Lords amendment 81 in relation to search, as well as the Government amendments in lieu of them.

Those Lords amendments insert harmful “features, functionalities or behaviours” into the list of matters that should be considered in the children’s risk assessment process and in the meeting of the safety duties, to add to the harms arising from the intrinsic nature of content itself—that is an important change. As others have done, I pay great tribute to the noble Baroness Kidron, who has invariably been the driving force behind so many of the positive enhancements to children’s online safety that the Bill will bring. She has promoted this enhancement, too. As she said, it is right to recognise and reflect in the legislation that a child’s online experience can be harmful not just as a result of the harm an individual piece of content can cause, but in the way that content is selected and presented to that child—in other words, the way in which the service is designed to operate. As she knows, however, I part company with the Lords amendments in the breadth of the language used, particularly the word “behaviours”.

Throughout our consideration of the Bill, I have taken the view that we should be less interested in passing legislation that sounds good and more interested in passing legislation that works. We need the regulator to be able to encourage and enforce improvements in online safety effectively. That means asking the online platforms to address the harms that it is within their power to address, and to relate clearly the design or operation of the systems that they have put in place.

The difficulty with the wording of the Lords amendments is that they bring into the ambit of the legislation behaviours that are not necessarily enabled or created by the design or operation of the service. The language used is

“features, functionalities or behaviours (including those enabled or created by the design or operation of the service) that are harmful to children”—

in other words, not limited to those that are enabled or created by the service. It is a step too far to make platforms accountable for all behaviours that are harmful to children without the clarity of that link to what the platform has itself done. For that reason, I cannot support those Lords amendments.

However, the Government have proposed a sensible alternative approach in their amendments in lieu, particularly in relation to Lords amendments 17 and Lords amendment 81, which relates to search services. The Government amendments in lieu capture the central point that design of a service can lead to harm and require a service to assess that as part of the children’s risk assessment process. That is a significant expansion of a service’s responsibilities in the risk assessment process which reflects not just ongoing concern about types of harm that were not adequately captured in the Bill so far but the positive moves we have all sought to make towards safety by design as an important preventive concept in online safety.

I also think it is important, given the potential scale of this expanded responsibility, to make clear that the concept of proportionality applies to a service’s approach to this element of assessment and mitigation of risk, as it does throughout the Bill, and I hope the Minister will be able to do that when he winds up the debate.

[Sir William Cash]

My right hon. and learned Friend has mentioned Ofcom several times. I would like to ask his opinion as to whether there should be, if there is not already, a special provision for a report by Ofcom on its own involvement in these processes during the course of its annual report every year, to be sure that we know that Ofcom is doing its job. In Parliament, we know what Select Committees are doing. The question is, what is Ofcom doing on a continuous basis?

Retained EU Law (Revocation and Reform) Bill

Debate between William Cash and Jeremy Wright

Consideration of Lords amendments
Wednesday 24th May 2023 Commons Chamber

[Sir Jeremy Wright]

I will focus on Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42.

Before I do, I want to close the loop on Lords amendment 6. It is a pleasure to follow the hon. Member for Stirling (Alyn Smith), who made an interesting set of observations. As he would expect, I do not agree with all of them, but if I may say so, he is engaging in this debate in exactly the way we ought to when considering matters this complex and important.

Just to finish the thought, the hon. Gentleman is right to say that their lordships may want to consider the matter further, as of course may we. I suspect that the noble Lord Hope, who I think drafted the clause in Lords amendment 6—that gives me considerable hesitation in criticising it in any way, because it is unlikely he has got much wrong—is intending a deal of weight to be put on the phrase

“as the case may be”.

Subsections (2) and (3) refer to a

“responsible Minister of a relevant national authority”

and to

“both Houses of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, as the case may be”.

I suspect Lord Hope would say that that indicates that in the case of retained law, the body would be the House of Commons and the House of Lords, and in the case of devolved competencies, it would be the relevant devolved body. Before we sign up fully to the wording of the amendment as it stands, we should have clarity about that, because it is an important point in the hon. Gentleman’s argument about the reinforcement of the devolution settlement.

We do not want to subtly change the devolution settlement by accident. I suspect that the hon. Gentleman would be quite happy to change the devolution settlement either by accident or by design, and perhaps not so subtly, but in the context of the Bill, we had better be clear what we are talking about. For that reason, I certainly will not support Lords amendment 6 at this stage, though I will listen carefully to what their lordships have to say when they clarify the point.

There seem to be similar points to make in relation to Lords amendment 1, Government amendment (a) to Lords amendment 1 and Lords amendment 42. Were we to support amendment (a), it would restate, because the Government have already made their position clear, their new approach that rather than repeal a whole swathe of EU-origin retained law in effect by default, it would be better to list specifically those things that it is intended should be repealed by a certain point, such as the end of this year, unless further action is taken before that point. That is a much more sensible approach, although I will say it was somewhat inevitable, as others have said.

It was always inconceivable that the Government would be able to manage the process of considering properly all the retained EU law in scope of the Bill before the deadline of the end of this year. Therefore, the Government have done the eminently sensible thing and should be congratulated on doing so. I will certainly support Government amendment (a) to Lords amendment 1, because it regularises the position in a much more reasonable way.

The irony is that I rather suspect proceeding in the way originally intended would have led to the retention of far more retained EU law than will be the case under the Government’s revised approach. In fear of losing something vital, it is highly likely that the Government would have had to roll over—by default and before the deadline—a good portion of legislation, just to be sure they had not missed something. This approach is much more sensible and will rather better support the intentions of those who supported our departure from the European Union than the approach originally intended.

If the rest of Lords amendment 1 were passed by this House—not just the part that amendment (a) retains—we would introduce exactly the friction that I mentioned earlier when intervening on the hon. Member for Stirling. It would introduce a Joint Committee process and then debates and votes on the Floor of both Houses. I appreciate that, depending on which side of the argument someone is, they may regard those as additional safeguards or additional procedural friction, but it appears to me that it is more the latter than the former. That process is far more than is likely to have been done in the consideration of any of these laws when they were originally brought into British law. When that happened—my hon. Friend the Member for Stone (Sir William Cash) is the world expert on this—we would have seen that, despite their EU origin, the level of scrutiny and attention those laws got from Parliament was far lower than the level proposed in the amendment.

[Sir William Cash]

To respond briefly to my right hon. and learned Friend on this issue, I am afraid that the idea of a Joint Committee is just not a workable proposition. This is not the kind of forum to deal with the issues at stake and, if I may say so, for that reason alone it is impossible to accept Lords amendment 1. It just would not work.

[Sir Jeremy Wright]

Well, I entirely agree with my hon. Friend. I think this is probably not the appropriate mechanism, as he says, but it would also duplicate to a large extent what his Committee already does. So I do not think it is an attractive mechanism, as he says.

Of course, those who propose this amendment and those who speak for it today may say to me, “Look, it would only be in the case of substantial changes that some, at least, of these additional procedures would apply”, but it seems to me there are two points to make about that. First, it would be the Joint Committee’s assessment of what is a substantial change to the law, not anybody else’s. Secondly, we would, would we not, have to get into what the word “substantial” means in that context. If we were to say that a Joint Committee should be established to determine initially whether there is a substantial change of the law in prospect, it would have to determine that and it would have to decide what substantial means. Does it mean, for example, that a large number of laws are consequentially affected when a change is made, or does it mean that a few laws would be affected but in a very significant way? I think it is important, if we want to do this, that we are very clear about the definitions that we apply, because just as other Members of this place are worried about the level of authority to be devolved to Ministers, there would be a significant level of authority to be devolved to a Joint Committee, and if we were not clear about the basis on which it was to exercise our authority, we may run into difficulty.

Online Safety Bill

Debate between William Cash and Jeremy Wright

Report stage
Tuesday 17th January 2023 Commons Chamber

[Sir William Cash (Stone) (Con)]

I thought I might mention to my right hon. and learned Friend that the written ministerial statement, which is now available to the public, makes it clear that useful and constructive discussions have taken place. Much of what he is saying is not necessarily applicable to the state of affairs we are now faced with.

[Sir Jeremy Wright]

I am grateful to my hon. Friend and I will come on to the written statement. I accept what he says. I think we are heading in the right direction, but since new clause 2 is before us at the moment, it seemed to me that I ought to address it, I hope in a helpful way.

There is nothing in the language of new clause 2 as it stands that requires a breach of the duties to be serious or even more than minimal. We should be more discriminating than that.

The second difficulty with new clause 2, which I hope the Government will pick up when they look at it again, is with prosecuting successfully the sorts of offences we may create. The more substantive and fundamental child safety duties in clause 11, which are to

“mitigate and manage the risks of harm”

and to prevent children encountering harmful content, are expressed in terms of the use of “proportionate measures” or “proportionate systems and processes”. The word “proportionate” is important and describes the need for balanced judgments to be made, including by taking into account freedom of expression and privacy as required by clause 11 itself. Aside from the challenges of obtaining evidence of what individual managers did or did not know, did or said, those balanced judgments could be very difficult for a prosecutor to assess and to demonstrate to a criminal court, to the required standard of proof, were deliberately or negligently wrong.

The consequences of that difficulty could either be that it becomes apparent that the cases are very hard to prosecute, and therefore criminal liability is not the deterrent we hoped for, or that wide criminal liability causes the sort of risk aversion and excessive take-down of material that I know worries my hon. Friend the Member for Stone (Sir William Cash) and others who support new clause 2. We therefore need to calibrate criminal liability appropriately.

It is also worth saying that if we are to pursue an extension of criminal liability, I am not sure that I see the logic of limiting that further criminal liability only to breaches of the child safety duties; I can envisage some breaches of safety duties in relation to illegal content that may also be deserving of such liability.

That leads me on to consider, as has been said, exactly how we might extend criminal liability differently. I appreciate that the Government will now be doing just that. Perhaps they can consider doing so in relation to serious or persistent breaches of the safety duties, rather than in relation to all breaches of safety duties.

Alternatively, or additionally, they could look at individual criminal liability for a failure to comply with a confirmed notice of contravention from Ofcom. I welcome the direction of travel set out in the written ministerial statement, which suggests that that is where the Government may go. As the statement says, the recent Irish legislation that has been prayed in aid does something very similar, and it is an approach with several advantages: it is easier to prove, we will know whether Ofcom has issued a notice requiring action to remedy a deficient approach to the safety duties, and we will know whether Ofcom believes that it has not been responded to adequately.

As we design a new system of regulation in this new era of regulation, we should want open conversations to take place between the regulator and the regulated as to how best to counter harms. Anything that discourages platforms and their directors from doing so may make the system we are designing work less well in promoting safety online. The approach that I think the Government will now consider is unlikely to do that.

Let me say one final thing. As my hon. Friend the Member for Gosport (Dame Caroline Dinenage) said, I have been involved in the progress of this Bill almost from the start, and I am delighted to see present my right hon. Friend the Member for Maidenhead (Mrs May), at whose instruction I started doing it. It has been tortuous progress, no doubt—to some extent that was inevitable because of the difficulty of the Bill and the territory in which we seek to legislate—but the hon. Member for Aberdeen North (Kirsty Blackman), who speaks for the SNP and for whom I have a good deal of respect, was probably a little grudging in suggesting that as it stands the Bill does only slightly better than the status quo. It does a lot more than that.

If we send the Bill to the other place this evening, as I hope we do, and if the other place considers it again with some thoroughness and seeks to improve it further, as I know it will, we will make the internet not a safe place—I do not believe that is achievable—but a significantly safer place. If we can do that, it will be the most important thing that most of us in this place have ever done.

Committee on Standards: Decision of the House

Debate between William Cash and Jeremy Wright

Monday 8th November 2021 Commons Chamber

[Jeremy Wright (Kenilworth and Southam) (Con)]

I should start by declaring my interest as a member of the Committee on Standards in Public Life. The only other Member of this House who is also a member of that committee, the right hon. Member for Derby South (Margaret Beckett), is not able to speak in this debate, but having spoken to her, I know she would agree with the criticisms I am about to make.

The amendment passed last week that we have been discussing sought to do a number of things that were wholly wrong. It sought to link the determination of an individual case to proposals for reform of our disciplinary system more broadly. It sought to establish a Committee of the House that did not and would not have cross-party support to consider reforms that could succeed only with cross-party support. It sought to do all that by whipping Government Back Benchers on House business that should not have been whipped at all, with some unfair and gratuitous attacks on the competence and integrity of the Parliamentary Commissioner for Standards, who, as you pointed out, Mr Speaker, has no right of reply.

For all those reasons, I could not support that amendment, but it seems to me that this debate should not focus on rehashing last week, but instead consider what we do now. On that, I speak for myself, not for my Committee or for any member of it. For all that some objectives of the amendment were illegitimate, not all of them were illegitimate. For example, I do think it is right to consider a clear and effective appeal mechanism for those initially found to have committed misconduct.

One frustrating aspect of last week is that the noise created by the rest of the amendment has made serious conversations about reform in that respect harder. I also think that the understandable public reaction to the events of last week means that we will have to think more extensively about reform to our disciplinary processes. Perhaps we should do that anyway.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Jeremy Wright]

Briefly.

[Sir William Cash]

I want to ask my right hon. and learned Friend, who was the Attorney General, the simple question that I put to the Leader of the Opposition: if the investigatory panel could have been set up, but was not set up, it was impossible for the rules of natural justice, as applied by Standing Order 150, to be brought into effect. Does he accept that that puts the Member in question at a severe disadvantage?

[Jeremy Wright]

I regret that I do not think there is a simple answer to that question, but I disagree that the problem is a breach of the rules of natural justice. I do not think that is our issue. I will come on to what I think the issue is, but I do not think it is that. My view is that last week reminded the public that they do not trust this House to discipline its own Members. I say “reminded” because not only have we been sent that message before, but we have acted on it before. The expenses scandal led to an independent body to determine our expenses claims, and only last year, as others have pointed out, we agreed an independent expert panel to determine claims of bullying and harassment. We now need to follow through on the logic for independent determination of other forms of serious misconduct.

Although I accept as a matter of democratic principle that it is necessary for Members of Parliament to authorise a sanction involving suspension or expulsion from this House, it does not follow from that that it is either necessary or desirable for Members of Parliament to judge the merits of disciplinary proceedings against other Members of Parliament. If we needed a demonstration of how that can cause problems and undermine confidence in our rules, we surely had it last week. We must have reform, but reform must be undertaken with a clear head and in a balanced way.

There is a strong case for a clear appeal procedure. I have heard the argument, made particularly forcefully and well by the hon. Member for Rhondda (Chris Bryant), that consideration of a case by the Committee on Standards is, in effect, an appeal from the commissioner. However, with great respect to the hon. Gentleman—I generally agree with what he says—I do not think that is quite right. An appeal is a means of challenging a decision. The commissioner makes a recommendation, not a decision. The decision is made by the Committee on Standards, and it is that decision that would be subject to any appeal that we added to the current architecture. Again with great respect to the hon. Gentleman and his Committee—I think he and they do a good job—we will have to face the need for a greater independent element in deciding cases of serious alleged misconduct by other Members of the House.

To return to the point raised by my hon. Friend the Member for Stone (Sir William Cash), I do not entirely go along with the view set out by my hon. Friend the Member for South Leicestershire (Alberto Costa) that what we have is a fundamental breach of the rules of natural justice. That does not appear to be what is happening. Instead, we have a failure to meet the test of public confidence. That is a different test, but one we must take seriously. As a result of that—again, I take the points by the Chair of the Committee on Standards that we are engaged in a process of reform, and about the pace of such reform—we must expect and establish due process, and these cases should be largely determined independently of us. If we do not do that, I fear confidence in us will continue to fall, with consequences for Parliament and the acceptance of the laws we pass. The pandemic has shown us how much that can matter. The lesson of last week is not to back away from reform of our disciplinary process; it is rather that we have to get on with it and go further in it, and do so in a wholly different way to the way we approached it last week.