Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

2nd reading & 2nd reading: House of Commons
Monday 5th October 2020 Commons Chamber

[Sir John Hayes (South Holland and The Deepings) (Con)]

rose—

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[James Brokenshire]

I will give way twice more and then get into some of the important details that I know right hon. and hon. Members would like me to address.

[James Brokenshire]

I am grateful to my right hon. Friend for that point. The issue of specifici—I cannot even say it; I shall settle for saying the specific authorisations that are granted. They are tightly bound and that is important. That is why we published the guidance that sits alongside the operationalisation of the Bill at the same time as the Bill—to give that sense of confirmation and clarity on how it will operate.

[Mr David Davis]

I hear what my right hon. Friend says about the Human Rights Act, but the defence that the Government put up in the legal case that was brought against them said in terms that the state is “not the instigator” of such activity and

“cannot be treated as somehow responsible for it”.

The memorandum to the Bill states that

“it is to be expected that there would not be State responsibility”.

How is that using the Human Rights Act to underpin the rights of our citizens?

[James Brokenshire]

I know that my right hon. Friend, rightly, takes these issues incredibly seriously. The issues we are talking about go to the kernel of our national security, and equally, our confidence in our criminal justice system and the way in which our operatives, who are there to protect us, act. I do place weight on what he has said.

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[James Brokenshire]

I have been pretty clear about the way this Bill operates and the manner in which agencies and the different bodies that can be authorised are able to act. Clearly, I cannot bind this House for the future, but I am very clear that we stand by our ECHR commitments, which is why this has been expressed in the way that it has in the Bill. I hope that is helpful to him.

[Mr David Davis]

What my right hon. Friend has described is, in effect, a wish not to provide a terrorist checklist, as it were, to test a member of such an organisation. Did he read the article in The Times this morning by probably one of the best Directors of Public Prosecutions of modern times, who would probably know more about this than all of us in this House? It was scathing about that analysis and said it simply did not stand up?

[James Brokenshire]

I am happy to respond to that point specifically. We are not suggesting that there is routine testing of suspected CHIS in all criminal groups, but there is evidence that this does occur more than infrequently, and I say that in clear terms. We are asking CHIS to put themselves in difficult positions to help the state investigate these criminal groups, and it is our judgment that we need to make sure that we can best protect them, and that means avoiding the provision of a checklist of crimes that can be tested against. I note that this risk is not just to CHIS, but to people who are not CHIS but may be suspected of being so.

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[Nick Thomas-Symonds]

I was relieved to have the reassurance that my right hon. Friend’s experience did not involve him personally, but he is entirely right about the reassurances that are necessary in terms of each and every case.

As the Minister has said, there is a section 19 certification from the Home Secretary on the face of the Bill regarding its compatibility with convention rights. In addition to that, I note that in clause 1, what will become the new section 29B(7) of the Regulation of Investigatory Powers Act 2000 mentions the Human Rights Act 1998 specifically. There is a real need for reassurance on this issue, so that the public and the House know that the most heinous of crimes will not be carried out in the name of this Government or, indeed, any other future Government. I appreciate that the European convention on human rights protects the right to life and is clear about the prohibition of torture or, indeed, subjecting anyone to inhuman or degrading treatment or punishment, and that is important, but the Government need to be crystal clear about their intention for when the courts come to consider this legislation, as they inevitably will. We cannot have any doubts about the Government’s intention or Parliament’s intention.

I accept that it is important that the Human Rights Act is, unusually, mentioned on the face of the Bill, and I notice that the accompanying memorandum sets out the following:

“Section 6 of the Human Rights Act 1998 makes it unlawful for public authorities to act in a way which is incompatible with Convention rights. Nothing in this Bill detracts from that fundamental position. Authorising authorities are not permitted by this Bill to authorise conduct which would constitute or entail a breach of those rights.”

What we cannot have is a position, referred to by the right hon. Member for Haltemprice and Howden (Mr Davis), in which any argument is put on the Government’s behalf in courts or tribunals that this system is not in place covering the activities of covert human intelligence sources, or that this system is somehow free or exempt from Human Rights Act considerations. Nor could we have a situation where there are deliberate attempts to prevent the Human Rights Act from coming into play. That is why we will be pressing the Government on public limits and on their position regarding those limits on criminal activity to be authorised.

[Mr David Davis]

Does the hon. Gentleman agree that, by not specifying in terms, the Government are inviting a challenge to the whole Bill, not under the Human Rights Act but under the torture convention? The international view of torture is more absolute than the international view of murder. Therefore, I think it highly likely that if the Bill goes through as it stands, the Government will be facing the courts within the next year, losing their case and having to rewrite the Bill.

[Nick Thomas-Symonds]

The right hon. Gentleman is absolutely right. If the Bill does not have those safeguards on its face as it should, it will simply be successfully challenged in our courts. It is in nobody’s interests for that position to pertain, which is why I am making this point, on which I hope we can work on a cross-party basis.

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[Nick Thomas-Symonds]

I agree entirely with my hon. Friend, both on the Canada model and on the point, which I put to the Government, that we cannot have a situation in future where there is any doubt about what was meant on the face of this Bill. We cannot have the Government having put forward on their behalf the argument that the Human Rights Act somehow does not apply.

[Mr David Davis]

The Government should not rest too hard on an IPT judgment. It is normal in these intelligence oversight commissions to have unanimity from the judges. In this case it was a 3-2 judgment, and the minority in that judgment described the Government’s argument as “fanciful” and “extraordinary” and as setting “dangerous precedents”, so I do not think they should rest on that at all.

[Nick Thomas-Symonds]

No, and the right hon. Gentleman illustrates precisely the point I am making. That is why the position has to be crystal clear. We cannot have a situation where such arguments are being put in written submissions, or in other ways, before a tribunal or indeed any other court. The public limit—this reassurance—is so important because, as I have said, if the Government do not get it right, and if they are not crystal clear on issues such as murder, torture and sexual violence, they will get into trouble in the courts in any event.

Given the nature of some of the networks that the Bill looks to disrupt, there are also clear concerns about the gendered impact of actions by covert human intelligence sources. The Government must seek to uphold the highest possible standards on gender impact. We will be pushing for such safeguards as the Bill moves forward, particularly in relation to rape and sexual violence. Members have also rightly expressed concerns about the risk of a disproportionate impact on black, Asian and other ethnic minority communities. We will push for safeguards on that, too, as the Bill progresses. When the Solicitor General winds up, I hope he can also provide assurances about the work being undertaken by law enforcement to address that and commit to publishing full and extensive Equality Act 2010 assessments.

On those who make decisions to authorise criminal conduct, the memorandum on the European convention on human rights supplied with the Bill states:

“The Bill strengthens the current legal position by putting the power to authorise criminal conduct by a CHIS on an explicit statutory footing.”

A legal framework is needed—I am clear that this activity should not continue in the shadows without clear accountability—but at present there is self-authorisation in the Bill.

If the police were to enter the property of any Member of this House, they would need a warrant to do so beforehand. I appreciate that things in this sphere move at speed, but in a number of areas of law we have judges available 24 hours a day who can offer services and give judgments on things such as emergency injunctions, so we will press that issue of prior judicial oversight. The more serious the crime authorised, the more senior the level of authorisation necessary—the right hon. Member for Sutton Coldfield (Mr Mitchell) made that point—subject to that oversight, and there needs to be assurance that the standards that this House sets will be adhered to and implemented.

Clause 4(3) amends section 234 of the Investigatory Powers Act 2016 to require the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in its annual report. It is stated that that will include statistics on use of the power, the operation of safeguards, and errors, which I will come back to in a moment.

I appreciate that that requirement is subject to the existing protections in the Investigatory Powers Act for information that relates to national security. I also appreciate that public authorities will have to disclose all documents necessary to the Investigatory Powers Commissioner. However, as it stands, the requirement is too vague, as was pointed out by the Chair of the Home Affairs Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper).

The requirement must involve more than the inclusion of a section or some sort of confidential annexe in the commissioner’s annual report. There is no reason why, for example, categories of crime cannot be published without compromising operational security. Every single authorisation should be notified to the commissioner, who can then provide ongoing oversight. That seems to me to be a far more effective way of giving reassurance on the operation of safeguards and of ensuring that where there are errors—again, I will return to that—something can be done immediately to ensure that such a mistake does not happen again. It seems to me that if this is looked at only on an annual basis, there is more scope for errors to be built into the system. I do not think it is unduly onerous for each and every authorisation to be notified to the commissioner.

I also see no reason why Members of this House—I mean the Intelligence and Security Committee, which deals with sensitive information all the time—cannot have more detail about the use of this power and in what context. Again, that would give far greater reassurance about the use of the power over time and public confidence in it.

In addition, there is the issue of redress and civil claims for wholly innocent victims. In the memorandum on convention rights, the Government state:

“The individuals who are most likely to be affected by the criminal conduct of a CHIS are those with whom the agent is engaging in order to thwart the criminality.”

That may be, but the key words there are “most likely”. What about a wholly innocent person who ends up with material or other loss as a consequence of the actions of a covert human intelligence source?

The position in the Bill is that a complaint can be made to the Investigatory Powers Commissioner with regard to these powers, which can be independently considered. I appreciate that the Investigatory Powers Tribunal has the jurisdiction to determine complaints against public authorities’ use of investigatory powers, including the use of covert human intelligence sources, but that is not the same as a proper civil claim. What if the authorised criminal act is botched? What if there is mistaken identity? Again, that is something that we will press in Committee.

While there is a narrow but fundamental part of the Bill about authorising criminal conduct, I want to talk about some wider issues. In relation to Northern Ireland, it must be clear that legacy issues are not affected by the Bill in the context of the peace process. On the issue of past injustices, I am grateful to the Minister for setting out again that this is not a retrospective Bill, but it has to be clear that those seeking justice for what happened in the past can still do so. We on the Labour Benches are committed to a full, independent public inquiry into the events at the Orgreave coking plant on 18 June 1984. It will only be by shining a penetrating light on the events of that day that we can have justice, and I commend those who have been campaigning on it for so long.

There is an ongoing inquiry into undercover policing—the so-called spy cop scandal, referred to by my hon. Friend the Member for Streatham (Bell Ribeiro-Addy)—chaired by Sir John Mitting. The evidential hearings open next month, and it has to be clear that recommendations from that inquiry will be implemented and victims will not be denied access to justice. I appreciated the Minister’s reassurance that such appalling behaviour was never lawful in the past and will not be lawful in the future. We must never stand to one side on issues like this. We commit again to pressing for justice for all victims. The delays in the existing inquiry have been unacceptable. Victims have been put through a terrible ordeal, and the least they deserve is access to justice.

I also want to talk about the practice of deceitful and unlawful blacklisting. In doing so, I refer to my entry into the Register of Members’ Financial Interests regarding my union, the Unite union, and its financial support for my election campaign to this House. I appreciate that the Bill is a narrow one on criminal conduct, rather than the wider issue of when an undercover policing operation begins, but since the blacklisting scandal surfaced over a decade ago, it is clear that these are not merely allegations. I appreciate that, in relation to blacklisting in the construction industry, we have seen a substantial out-of-court settlement, and there are ongoing proceedings. However, Deputy Assistant Commissioner Martin’s findings in the Metropolitan police’s internal investigation stated:

“The report concludes that, on the balance of probabilities, the allegation that the police or special branches supplied information is ‘proven.’ Material revealed a potentially improper flow of information from Special Branch to external organisations, which ultimately appeared on the blacklist.”

That is a hugely serious issue. The Government should be on notice that we will not hesitate to raise this and hold Ministers to account on the involvement of our law enforcement in the disgraceful process of blacklisting.

[Mr Davis]

I also declare an interest: a member of my family was blacklisted. This concern is not confined to the Labour party. The probable handing on of information from special branch is something that needs to be resolved as part of the honour of our country.

[Nick Thomas-Symonds]

I am grateful for the right hon. Gentleman’s support in that matter, and I am happy that the Minister has made clear that this legislation has no impact on the search for justice in relation to that appalling practice.

The aim of this legislation should be to keep people safe and bring dangerous criminals to justice. I appreciate the assurance that this does not, and is not designed in any way to, disrupt legitimate and lawful trade union activity. Should any Bill do that, it would be opposed by Labour Members.

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[Richard Thomson]

I thank the hon. Lady for that intervention. She makes a number of important points, and we will need assurances on those going forward.

The situation is hugely problematic as it stands, and we do not believe that the Government should attempt to escape their vicarious liability on this issue.

[Mr David Davis]

I am following with interest what the hon. Gentleman has to say, and, unusually, though he is an SNP Member I have a great deal of agreement with him. However, in terms of civil liability, perhaps the simplest test is to look at one of the worst cases in recent times, which is the Finucane murder. Whatever we think of Mr Finucane—I would have different politics from him—he was an innocent party, but even more so were his three children and his wife, who were there when a state-supported group—almost—murdered him with 14 bullets over his Sunday lunch. That is a good demonstration of the point that, if this civil exclusion applies, those innocent parties—the wife and children of Finucane—would have no recourse. That surely cannot be right.

[Richard Thomson]

I thank the right hon. Gentleman for that intervention, and he makes the point very elegantly. If individuals are to be exonerated for actions that have been authorised, where is the redress for the innocent whose lives are impacted? It is right to look at the extremities in terms of where that might lead us.

In giving the state the ability to uphold rights, we accept that we must also give it the ability to have limited powers of coercion to uphold those rights. However, those powers must never be in conflict with the fundamental rights of individuals. In terms of the Bill, the only way we can ensure that is through good governance, effective scrutiny, limited scope and clarity on the limitations; ensuring that there is accountability for the use of the powers; and limiting opportunities for their misuse. I believe those are legitimate concerns, which many will share, both inside and outside this place, and we hope to see them addressed as the Bill continues its passage.

Extradition (Provisional Arrest) Bill [Lords]

David Davis Excerpts

Report stage & Committee stage & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 8th September 2020 Commons Chamber

The situation is deteriorating fast. This Government need to pick up the pace, after having agreed to the extradition procedures being lifted. I urge the Government with all my heart to put China right up there as a priority, no matter all our domestic rows and arguments, which are important. The freedom of people faced with the imposition of dictatorial regimes should always be our No. 1 cry. We should speak out when others are not able to have the freedoms that we take for granted in this House. If we do not speak out for them, who will?

[Mr David Davis (Haltemprice and Howden) (Con)]

Let me start by agreeing entirely with what was said by my right hon. Friend the Member for Chingford and Woodford Green (Sir Iain Duncan Smith); he has argued forcefully that we should not extradite to China and Hong Kong, giving powerful humanitarian and human rights reasons, and he is right on every count.

Our extradition arrangements with the United States are not anything like as divisive as those with China and Hong Kong, but they remain deeply imbalanced and can lead to serious miscarriages of justice. As it stands, the Bill would allow individuals in the United Kingdom who are to be extradited to a list of specified countries to be arrested without a warrant. My amendments 7, 8, 9 and 10 would remove the United States from that list of countries, and I shall speak to those amendments now.

The Government say that they need the powers in this Bill because of suspects getting away if they are “encountered by chance” and it is not possible to arrest them without applying to a judge for a warrant. For hundreds of years in this country we have woken judges and magistrates up in the middle of the night to do precisely that: to carry out a police action, be it a search or an arrest. We do not bypass normal legal protections when a domestic suspect might get away, so why is this necessary in respect of individuals facing extradition? The Home Office’s own impact assessment of these new powers says that, with or without them,

“suspects are highly likely to be before the court in any event when the requesting state confirms that the suspect is at large in the UK.”

So one has to wonder why the provision is needed at all.

The methodology used in the impact assessment supporting the Bill is both opaque and bogus. It is too long to go into here, but I recommend that if Members want a confusing way to go to sleep, they should read it—it is completely useless. Even so, it asserts that the proposed change would result annually in just

“6 individuals entering the CJS more quickly than would otherwise have been the case.”

That is just six individuals a year in the criminal justice system, out of the more than 100,000 criminals we deal with in this country every year, and for that we are giving away a fundamental legal protection for the innocent, as well as for anybody else.

The Bill’s explanatory notes try to justify the legislation on the basis that it is similar to powers introduced by our European neighbours, such as Spain. Let me give the House one example of that in operation. Members will know the name of Bill Browder, who campaigned on behalf of Sergei Magnitsky, the man who died in Russian imprisonment; in effect, he was killed by the Russian state. The Russians put out a red notice through Interpol for Mr Browder, and the Spanish Government executed it. Right enough, a judge subsequently released him, but I ask the House to think how Mr Browder would have felt, sitting in a Spanish prison considering the prospect of being extradited to be imprisoned in Russia and put into the hands of the people who had killed Magnitsky. These things are not without price.

As for other European countries, a number of them have absolute embargoes on extraditing their own citizens to anybody outside the EU, for reasons that I will come to in a second, but which in essence relate to a lack of trust in other countries’ justice systems.

The Bill’s impact assessment states:

“Under the proposed new power, the police could arrest a suspect who was wanted for extradition by a trusted partner country”.

The Bill defines such a country as

“those who respect the international rules based system”—

broadly speaking, although not entirely, the United States does that—

“and whose Red Notices and Criminal Justice Systems the UK trusts”.

We like to think of the US justice system as similar to our own, but recent high-profile cases have highlighted just how wrong that is and how we cannot trust the system with the interests of British citizens.

When the 2003 extradition treaty and the associated Bill were introduced, they were sold to the House on the basis that they would be used principally for paedophiles, murderers and terrorists. I was shadow Home Secretary at the time and I remember it vividly. I remember the leader of the Conservative party at the time accepting it on those terms, because he thought it was in the interests of the country. But the people we are extraditing to the United States are mostly white collar businessmen who pose no danger to United Kingdom citizens, or indeed United States citizens.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

My right hon. Friend is making a characteristically sensible and robust speech. Does he agree that at the moment the international rules-based system is under great pressure but matters hugely to all of us? Is the case of the United States not an example of a totally asymmetric approach to extradition and will that asymmetry not be seen by people in Britain as most unfair and as bringing the whole process into disrepute?

[Mr Davis]

My right hon. Friend is right on several counts, and I will elaborate on the unfairness in a second, but he is right also to highlight something else, which is that international rules-based systems work only if everyone sees them treating all countries and their citizens identically. If they do not do that, they fall down. An American exceptionalist approach, therefore, destroys the systems we are trying to uphold. So there is an interesting philosophical point in his intervention, as well as the moral one that I will major on.

[John Redwood (Wokingham) (Con)]

Will my right hon. Friend confirm that when these measures came in quite a number of us on the Opposition Benches were uneasy about the asymmetry and unfairness? It is good to see him reviewing the matter at this late stage.

[Mr Davis]

My right hon. Friend is exactly right, and I was one of those, although at that time I was not allowed to say so. It was not the first time I have been overruled by my boss, and it will not be the last.

Since 2007, the United Kingdom has surrendered 135 UK nationals to the United States, 99 of them for non-violent offences. Over the whole period of the Act, 80% of the offences have been non-violent. So much for terrorism, murder and paedophilia! To put it another way, there have been only three violent offences per year requiring extradition to the United States.

The US deliberately uses its extradition arrangements to cast a wide legal net around the business world, seeking to be judge, jury and executioner for global commercial deals and aims. The Home Affairs Select Committee’s 2012 reported concluded that the United States

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

Or as the distinguished extradition lawyer, Robert Dougans, puts it:

“The Department of Justice effectively uses criminal extradition as a lever for US interests in commercial matters, which is not what it is for.”

This has been shown in case after case, such as those of Ian Norris, the chairman of Morgan Crucible; the NatWest three; Christopher Tappin; and a number of others, including, most recently, Dr Mike Lynch.

How does it work? Once a person extradited from the UK arrives in the US, they are treated as guilty from the moment they land. They face invasive strip searches—that is exactly how it sounds—and they are electronically tagged. They are kept in appalling conditions completely alien to the British justice system. They are shackled and perp-walked into and out of court in front of television cameras and paparazzi, so that the US Department of Justice can claim a PR victory at the expense of the presumption of innocence.

Some of the people extradited sit in court facing allegations dressed head to toe in orange prison garb. They are then faced with enormous pressure from the US authorities to agree to a plea bargain. They are told that if they plead innocent they will face decades in these appalling conditions but if they plead guilty they will face a much lighter sentence in an open prison, with possibly half of it served back here in the UK. As the case is held in America, very often witnesses from the UK will not appear, because they themselves fear incarceration. That has certainly happened in some current cases. A massive 97% of cases are settled by plea in the United States. For a foreigner, unprotected by the US constitution, that is not a justice system; it is a very effective but not at all fair prosecution system. It is not justice.

Much of this would be better if the accused were tried in Britain, completely sidelining the need to extradite at all. The NatWest three, for example, were British citizens and their alleged crime was in Britain against a British company; at worst, they should have been tried in front of a British court, but the British authorities did not see them as having a case to answer. However, the extradition treaty does not recognise this. Anyone caught in this system faces an asymmetric and unbalanced treaty process. Unlike in the US, a person in the UK has no right to insist on probable cause before being extradited. The 2011 Joint Committee on Human Rights report called this a lack of reciprocity in the treaty, and it has resulted in the US surrendering only 11 individuals to the United Kingdom since 2007, while 135 have gone the other way. Since the United States is roughly five times bigger than the UK, this is an effective disparity of 50 in risk of extradition.

[Mr Mitchell]

It is not just a case of lack of reciprocity. The people in the NatWest case, which my right hon. Friend mentioned, had no case to answer according to the British authorities, yet in spite of that they were extradited. That is an appalling abuse of their human rights.

[Mr Davis]

My right hon. Friend is exactly right. Interestingly, in their case human rights were not used as a defence mechanism, whereas in another case the only thing that stopped Gary McKinnon being extradited was the implementation of the human rights law. My right hon. Friend is right more generally, too; they did not have a case to answer in a normal justice system, but they gave in and confessed to guilt rather than face 30 years in a grim high-security Texan prison, never seeing their families again, which is what this would have amounted to. That illustrates where the disparity lies, and why it is so unfair.

The US Government also have much greater discretion in refusing extradition requests. Under the Extradition Act 2003, the Secretary of State “must”—the word is “must”—issue a certificate for extradition. The equivalent US code states that the Secretary of State “may” order the person to be tried. Of course, there is no stronger demonstration of this than the case of Anne Sacoolas, the person responsible for the tragic death of Harry Dunn. In Ms Sacoolas’s case the US Secretary of State used this discretion—I think in the view of most in this House, wrongly—to prevent her extradition. The Dunn family may now have to settle for a wholly unsatisfactory virtual trial of Anne Sacoolas, because our extradition arrangements have failed to give them proper justice.

That is just the latest example of how the completely lopsided treaty allows US citizens to evade justice while exposing United Kingdom citizens to miscarriages of justice. The Prime Minister himself has recognised this imbalance. At Prime Minister’s questions on 12 February he said:

“I do think that elements of that relationship are unbalanced, and it is certainly worth looking at”.—[Official Report, 12 February 2020; Vol. 671, c. 846.]

Due to the scope of the Bill, my amendments would not rebalance the extradition arrangements with the US, but they would prevent, in a very small way, further facilitation of further miscarriages of justice. It would be a tiny improvement in a system that requires an entirely radical rewrite, so I am only moving them as probing amendments today.

The simple truth is—I make this point very firmly to my right hon. and very old Friend the Minister for Security, who is sitting on the Treasury Bench—[Interruption.] He is older than you think. I say to the Minister that this really needs, in the words of the Prime Minister, a rethink. I do hope that the Government will rethink this treaty and ensure that in future when we extradite British citizens to any other justice system in the world, that justice system will work as it is supposed to, and give them what is in the title: justice.

[Mary Kelly Foy (City of Durham) (Lab)]

This is an important Bill. We need an extradition system that ensures that UK law enforcement agencies are supported in apprehending dangerous criminals in order to keep the public safe, both in Britain and abroad. This Bill helps facilitate the extradition of those who have committed serious crimes abroad, and all of us in this House can support that.

However, it is vital that this Bill includes the necessary safeguards. The amendments, both from the other place and those put before the House today, share common themes of transparency, fairness and support for parliamentary scrutiny; these are values that every Member should hold. It is right that the Bill compels the Government to consult with the devolved Administrations and non-governmental organisations before adding or removing a territory, as well as confirming to Parliament that the territory does not abuse Interpol red notices. That amendment promotes dialogue and discussion among relevant parties, respects the role of the devolved Administrations and ensures a level of transparency that is necessary in Government. It is difficult to see how any reasonable Government could object to that. Moreover, given the trouble that the Government have had with carrying out consultations before making major decisions, it is important that such a measure is included in the Bill. If any Member needs evidence of that, I refer them to the former Department for International Development.

The second amendment carried in the other place, which mandates that territories can only be added to the extradition process individually, is designed to increase both transparency and scrutiny. If we allow territories to be added when grouped together, there is a real risk that a country with a problematic human rights record could be included alongside countries that respect human rights. Considering the Government’s vocal support for a Magnitsky Act to deter human rights abuses, it would be somewhat hypocritical to oppose an amendment that has the same purpose.

Furthermore, by considering whether to add a territory on its own merits, we are not only ensuring that those countries do not abuse Interpol red notices, we are also adding a further layer of parliamentary scrutiny to the process. The House should seek to support additional scrutiny, not limit it. It is therefore disappointing, if not surprising, that the Government seem set on opposing these common-sense safeguards. As well as the amendments passed in the other place, it is important that this House further strengthens the Bill. Given that the legislation includes increased law enforcement powers with the purpose of keeping the public safe, it is right that the House should be able to see the effectiveness of those measures. Compelling the Secretary of State to update the House annually on the number of arrests made would help to achieve that. For the same reason, it is important that the Act is kept under regular review by this House. Again, that would strengthen Parliament’s role while ensuring the measures are working as intended.

Finally, although the Bill rightfully updates our extradition process with territories such as New Zealand and Canada, it is clearly wrong that there is still uncertainty regarding our justice and security arrangements with members of the European Union. Many of those states are some of our closest allies, while a potential lack of access to the real-time European criminal databases will undoubtedly affect the ability of UK law enforcement agencies to protect the public. It is concerning that the Government have yet to adequately address that point.

While the Bill should be supported by the House, it is not perfect and there are gaps and uncertainties that still exist within it. The Opposition amendments seek to fill and strengthen the Bill and ensure that it is fully effective, while also aiming to increase transparency and co-operation. I urge Members to support the Opposition amendments today and to protect the amendments agreed to in the other place.

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

David Davis Excerpts

Report stage & Report stage: House of Commons
Tuesday 30th June 2020 Commons Chamber

[Holly Lynch]

I entirely agree with my right hon. Friend. In her capacity as Chair of the Home Affairs Committee, she has pushed for this issue a great deal, and I commend her for that work. I agree with her wholeheartedly.

In the long term, we need to look at the sponsorship issue. If medical professionals had simply the NHS as a sponsor, rather than individual trusts, that simple step would transform the visa system and the fees for those working on the frontline of healthcare provision.

On the health surcharge, we seek to press new clause 14 to a vote, unless we are given a clear steer and assurances about how and when the changes will come into effect, and how those who have had to pay the fee since the announcement was made will be reimbursed.

New clause 15 would quite simply exempt NHS employers from having to pay the immigration skills charge. As things stand, NHS trusts pay the skills charge for those coming to work in the NHS from countries outside the EU, and they will be expected to pay those costs for those coming from the EU after free movement ends. However, in the context of the NHS, where certain clinical skills are simply not available in the domestic labour pool, levelling a tax on NHS trusts for having no choice other than to plug their staff shortages from the international talent pool is nothing short of an outrage. An NHS trust cannot unilaterally decide to train more nurses from the domestic labour force, for example; it needs Government intervention to deliver that uplift.

We have clinical workforce shortages almost right across the board in the NHS, and that is while we have had free movement. We submitted freedom of information requests to 224 NHS hospital trusts in England, asking them how much they were losing from their budgets to pay these charges back to the Government. To give an indication of what some hospitals are paying out, Portsmouth Hospitals NHS Trust told us that in just one year—the 2019-2020 financial year—it paid the Government £972,000. It has paid over £2 million in immigration skills charges since 2017. Over the past three financial years, Lewisham and Greenwich NHS Trust had to pay the Government £961,000 in immigration skills charges. Only 21% of trusts have responded to the FOI request so far, but this tells us that nearly £13 million has been taken back out of NHS budgets and handed over to the Government since 2017. That is nearly £13 million from just 21% of the hospital trusts in England. The fact that some hospitals could be paying out nearly £1 million in immigration skills charges in a single year must surely be a sign that the system is not working as intended, and this is all while people have been able to come and work in the NHS under free movement, where fees would not have been applicable. That is about to come to an end. I urge the Minister to adopt new clause 15, to mitigate any further detrimental impact on the NHS workforce and to ensure that NHS funding stays in the NHS.

I will briefly touch on the two other changes we have proposed. Amendment 39 would time-limit the Henry VIII powers in the Bill. These powers have been widely criticised by experts, and efforts from both Labour and the Scottish National party in Committee to curb the powers or to ask the Government to state explicitly on the face of the Bill what they would be used for have been to no avail. Amendment 39 would tie them to the end date of the EU settlement scheme.

I want to take this opportunity to say that we also support new clause 29, tabled in the name of the Chair of the Home Affairs Committee, my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper), with cross-party support. This new clause would seek to continue the existing arrangements for unaccompanied child refugees and maintain our commitment to family reunion. I was reassured by the Minister’s positive response to the hon. Member for Barrow and Furness (Simon Fell) on this issue during the urgent question yesterday, and I hope that discussions can continue in that positive spirit. We also support new clauses 7 to 10, tabled in the name of the right hon. Member for Haltemprice and Howden (Mr Davis), which reflect the sustained cross-party appetite to ensure that immigration detention is limited to 28 days, bringing about an end to unfair and unjust indefinite detention.

We are also keen to support new clause 2, tabled in the name of the hon. Member for East Worthing and Shoreham (Tim Loughton), who has already given his very articulate explanation as to why it matters so much. We tabled new clause 58 in Committee to the same effect as his new clause, seeking to grant settled status to all those eligible children who are currently in the care of local authorities or who are care leavers. I am grateful that the hon. Gentleman has been able to share with the House some of the latest research from the Children’s Society, which foresees a bleak outlook if we do not take action on this important issue now, taking the responsibility from local authorities who are stretched as they have never been stretched before in order to make an application on behalf of a child. This is a cohort of children and young people who are our responsibility. We, the state, are acting as their legal guardians. They have already had the worst possible start in life, so let us do the best we can for them by at least giving them confidence in their immigration status.

As we have already heard through freedom of information requests, the Children’s Society identified a sample of 404 children who have had their status confirmed through the scheme, out of an estimated 9,000. Of those, 282 were granted settled status and 122 were granted pre-settled status. Given everything that those kids have been through, let us not sign them up for more years of paperwork and burdens of proof by giving them pre-settled status. Let us take all that uncertainty off the table for them by adopting new clause 2 and giving them indefinite leave to remain, as was so articulately outlined by the hon. Gentleman.

I very much hope that the Minister is open to the concerns that have been raised during the passage of the Bill and will no doubt be raised again this afternoon, but we are minded to take new clauses 13, 14 and 15 further if we are not satisfied that the Government are taking steps to mitigate the impact of the Bill and deliver on the promises that they have already made, not least to our brilliant NHS care workers.

[Mr David Davis (Haltemprice and Howden) (Con)]

I will speak to new clauses 7 to 10, but before I do, may I add my support to new clauses 2 and 29 in the name of my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton)?  As an ex-Brexit Secretary, I see no reason whatever to wait on the negotiation in order to take his clauses forward.

Today there is no limit on the amount of time for which people can be held in immigration detention in the United Kingdom. We are the only country in Europe that takes this stance. At the end of 2019, the individual detained in a holding centre for the longest period had been held for 1,002 days. In earlier years those numbers were even worse. These people are detained without trial or due process, oversight or basic freedoms, and they are carrying the debilitating psychological burden of having no idea when they will be released.

This flies in the face of centuries of British justice. Its operation has been severely criticised by the chief inspector of prisons, the chief inspector of borders, the Select Committee on Home Affairs, the Joint Committee on Human Rights, the Law Society and the Bar Council—quite a bunch of radicals, I would say. As a result of this early criticism, the Home Office had to reduce the numbers in the system, for which it claimed credit in a briefing note issued this morning. This is an improvement towards bringing down the numbers, but is still nowhere near right. We need a 28-day limit on immigration detention, and that is the purpose of my new clauses.

The Government also claimed in that briefing note that 97% of the occupants of immigration holding centres are foreign national offenders. Well, that is technically true, since at the moment, under covid-19 emergency arrangements, we have temporarily put out into the community a significant majority of the people who were detained in holding centres, keeping in only the most serious cases. In fact, in normal times—to which we will presumably return when the covid-19 crisis is over—the average proportion of foreign national offenders who have been detained over five years is 22%. The figure is never more than 23% and is normally at 19% to 20%. That tells us that four out of five detainees in these centres have no criminal action against them whatever; they are innocent people.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

I completely agree with what my right hon. Friend is saying. Not only is his point correct, but I have found out, as a result of tabling a question to the Home Secretary, that over the past five years the taxpayer has had to pay out in excess of £20 million to people who were unlawfully detained. Is he aware of that?

[Mr Davis]

My right hon. Friend makes a good point, to which I will return in a moment because it impinges on another claim made by the Home Office that is plainly not true.

We have established what these people are not—they are not all foreign national offenders—but we should understand what they are. I do not have time in the six minutes available to me to go through all of them, but I have in front of me case after case of people who have suffered human trafficking, torture, rape, forced prostitution and modern slavery—mostly before they got to these shores, but in some cases after they arrived here too. Many are damaged people to whom the world has dealt a very, very rough hand. And what do we do when they come here for our help? We lock them up for an indefinite period.

[Tim Farron]

The right hon. Gentleman will be unsurprised to hear that I fully agree with everything that he has said so far. Is he aware of the detailed research by the Jesuit Refugee Service that looks into the psychological condition of the very people he is talking about? The research finds that that psychological condition is influenced by even the shortest of stays in indefinite detention and discusses what that means for those people and their families for the rest of their lives. I am sure that he understands that the Government need to consider the mental health and psychological impact of this kind of inhumane treatment.

--- Later in debate ---

[Mr Davis]

The hon. Gentleman is right: any stay is damaging. If someone was psychologically damaged before they arrived, it is even more damaging. If they do not know how long they will be detained, it is even more damaging again. He may remember that we had huge battles in this House over 90 days’ detention without charge, with the great defeat of Blair. We are now talking about detention of three months, four months, five months and three years.

--- Later in debate ---

[Mr Steve Baker (Wycombe) (Con)]

My right hon. Friend is making an extremely compelling case, and I am proud to have signed his new clauses. Will he take this opportunity to put on record a view that I think he shares with me—that people who are serious offenders should be promptly deported, not living in the UK at taxpayer expense?

[Mr Davis]

My hon. Friend pre-empts the point that I am about to come to. A few are villains, and I would be the first to concede that, along with him. Predictably, as the Home Office always does when it has a weak case, it trotted out the gory details this morning—it listed 29 rapists, 52 violent offenders, 27 child sex offenders and 43 other sex offenders—designed, no doubt, to make our blood curdle.

That brings me to the other point of these new clauses. My question to the Minister, which I hope he will answer when he winds up the debate, is: when precisely did the Government start deportation proceedings on all those serious cases? Did they start the day that those people went into prison or sufficiently far in advance that those serious villains could go straight from prison to plane, with no stop at the detention centre? No, they did not, I am sure, but I would like to hear whether the Minister thinks they did the right thing on that.

The fact is that, to borrow a phrase from a former Home Secretary, the Home Office is not fit for purpose in managing deportations. Part of the point of these new clauses is to force the Home Office to get its act together, deal with the villains and stop punishing the innocent. That is why there is a six-month delay built into the new clauses—to give it time to get a grip.

I have one simple thing to say to the House. I have long been proud of our British justice system, but I am ashamed of what our incompetent deportation system does to people who arrived on our shores already badly damaged by human trafficking and modern slavery. It is time we put it right with new clauses 7, 8, 9 and 10.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to follow the right hon. Member for Haltemprice and Howden (Mr Davis). I am in the unusual position of agreeing with pretty much everything that has been said by all four speakers so far, which I do not get to say very often, particularly in relation to my hon. Friend the Member for Argyll and Bute (Brendan O’Hara).

We in the SNP believe that this is a bad Bill—bad for families and bad for businesses—that sells EU nationals short and extends the scope of the hostile environment. Meanwhile, we have seen the Home Office move from disinterest in specific solutions for devolved nations to disdain bordering sometimes on contempt. It has been made clear during the passage of the Bill that there is to be no remote areas pilot scheme, despite that being a recommendation of the Migration Advisory Committee and an earlier Home Office commitment. Our amendments give Parliament a last chance to remedy these defects, and we will support other amendments that seek to find a silver lining to this Bill, such as amendments on putting a time limit on immigration detention, protecting care leavers, and protecting family reunion rights.

Turning first to the issue of family, sadly, this Bill will destroy more families by extending the scope of some of the most anti-family migration rules on earth. The degree of complacency that there is in Parliament about the damage these rules do to families and children surprises me. Five years ago, just three years after the rules were introduced, England’s Children’s Commissioner estimated there were nearly 15,000 Skype families in the UK—kids separated from a parent overseas because of these ludicrous financial thresholds. These rules do not even take into account the prospective income of the persons applying to come into the country. The commissioner said at the time:

“Many of the children interviewed for this research suffer from stress and anxiety, affecting their well-being and development. It is also likely to have an impact on their educational attainment and outcomes because they have been separated from a parent, due to these inflexible rules which take little account of regional income levels or family support available.”

Amendment 33 puts a brake on extension of these rules and, as the commissioner recommended, starts putting the heart back into the policy.

A second group of families that are being put in an impossible position by this Bill are those formed by UK citizens living across the EEA who may in future want to come back here with their family. These are UK nationals who would have had no reason to doubt that if they had a family while abroad, they would have derived rights to return here with their family members to the UK without having to jump the impossible hurdles of the UK’s domestic family migration rules; they could not have predicted Brexit, and applying the UK family rules to them, denying many a right to return here with their family, would seem incredibly unfair.

To be fair to the Minister, he has acknowledged that there is an issue here and has provided a grace period until 2022, during which such families can return, but this is essentially just kicking the can a little bit further down the road. It still leaves many with horrible decisions to make: do they uproot their families now, just in case they do not qualify to return later on? None of these families could have predicted that they would be in this position, so why not remove the cut-off point altogether, as amendment 38 seeks to ensure?

Finally on the issue of family, we are 100% behind the cross-party amendment on family reunion. The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) will say much more about that shortly, and we fully support what the hon. Member for East Worthing and Shoreham (Tim Loughton) has already said, but it is plain to see that, despite talking a good game, the Government’s proposals mean they are backsliding on earlier commitments made to the House; they mean fewer safe legal routes for children to get to family here, and that means more children risking dangerous, unsafe routes. The Government’s stance is a boon for traffickers and people smugglers and a disaster for children and families, and that is why we must support new clause 29.

This Bill is not just anti-family; it is anti-business. I have spoken enough at previous stages about the huge problems that salary and skills thresholds will cause when the new system is brought into force, but today I want to focus briefly on the problems that the Bill will cause even if a job qualifies for a visa under the tier 2 system. Our system will make it unbelievably difficult and expensive to bring workers in, and will make this country an eye-wateringly unattractive place for people to come to. Figures from the international immigration law firm Fragomen show that under the future immigration system a tier 2 worker who enters the UK to work for five years with a partner and three kids could potentially involve a total payment to the Home Office of £27,000 upfront from October, once costs such as sponsorship licence fees and the immigration health surcharge are included. That is over 12 times as much as the equivalent for Canada and over 17 times as much as Germany, and it is similarly uncompetitive for other family arrangements.

Of course, skilled workers from the EEA are able to work in any other EEA country without paying a penny and with no need for the stress and uncertainty of a visa application. So if there is a skilled and sought-after French worker, that person can go to Dublin without paying a penny, no questions asked, but to get to Belfast they will need to pay many thousands of pounds and endure a Home Office visa process. It is a perfect incentive for skilled workers to go elsewhere, and it is a perfect incentive for key employers to move their businesses elsewhere. That is why we have tabled new clause 17, so that the Government have to be upfront and open with Parliament about the costs they are imposing on businesses and unskilled workers.

It is also why we have introduced new clause 16, a first step to removing the ridiculous immigration health surcharge, which makes up most of these humungous fees—a nonsensical double poll tax on workers, which is set to increase to £624 per person per year, all of which needs to be paid upfront.

So this Bill risks making it very hard to attract European workers to come to the UK in future, but what of the EU workers who are already here and other EU nationals? Amendment 32 would ensure that all EU citizens who are already here have automatic rights to remain and physical proof of their status. We support new clause 2, which would put in place that same right for looked-after children. Assuming, with regret, that the Government are not about to do that, they need to tell us much more about how they will respond when we wake up on 1 July next year to find an extra few hundred thousand undocumented EU migrants, without rights and potentially subject to removal. What will the Home Office do when a 70-year-old French woman writes to say: “I had permanent residence under the old scheme. I didn’t think I needed to apply, but now the DVLA have refused my driving licence and they say I’m here illegally.” What is the Home Office going to do in such circumstances?

The Government say that they will be “reasonable”, but what exactly does that mean? In Committee, the Minister helpfully explained that he will publish guidance for caseworkers with a non-exhaustive list of examples in which late applications will be allowed. That would be welcome and useful, but the key point is that I want to see it—and I want to see it before we close the EU settlement scheme to applications. Parliament should know precisely how late applications are to be treated before it allows the scheme to close. That is what new clause 34 would ensure.

Two other new clauses seek to push the Government towards fairer treatment of EEA nationals. New clause 36 flags up a new problem relating to EEA nationals who seek to become UK citizens. In fairness to previous Home Office Ministers, when the settlement scheme was established, the Home Office did not insist, as it could have done, on proof of comprehensive sickness insurance in deciding who had been legitimately exercising free movement rights. For some reason known only to itself, the Home Office has now decided to insist on that when it comes to applications for citizenship. That seems an awful miserly approach to take, and I urge the Minister to revisit it.

New clause 21 flags up the issue of those EEA nationals who have a right in law to register as British citizens, and I am grateful for the cross-party support for the clause. We are talking not about adults who have made a proactive choice to come here but about children and young people who were born here or who have been here since they were young, whose parents have subsequently settled or who have lived the first 10 years of their life here. In short, they are children and young people who had no choice over the fact that this is their home country. In law they have just as much right to British citizenship as you, Madam Deputy Speaker, or me; the only difference is that they have to register. When Parliament passed the relevant careful laws, the fee for the process was set simply at the cost of processing, but it has now rocketed to over £1,000—just to access British citizenship. That is profiteering on the backs of children and it has to stop.

Finally, I turn to the issue of the devolved nations. The end of free movement will have drastic implications for Scotland, and if anything the challenges for Northern Ireland will be even more extreme. Home Office disinterest in any notion of a differentiated system has transformed into hostility. New clause 33, which has cross-party support, simply makes the modest proposal that, instead of its usual dismissive attitude, the Home Office looks seriously at the options for addressing issues in Scotland, Wales and Northern Ireland. With the Government refusing to look at any regional variation, some in Scotland had at least taken comfort from the MAC recommendation of a remote areas pilot scheme to encourage migration to areas that have a very small labour market. Originally, the Home Office accepted that recommendation, yet in Committee the Government said it had been abandoned. New clause 24 would restore that provision, and I certainly hope that MPs from all parties who represent constituencies with remote areas will insist that the Home Office thinks again.

It is clearer than ever that the only way we will have an immigration system that remotely reflects our needs and circumstances and fixes the injustices that it contains is if we design one ourselves but, given the Home Office intransigence, I have no problem making the case that control over migration will be a key advantage of independence.

--- Later in debate ---

[Mr Steve Baker]

I rise to speak to new clauses 7 through 10, tabled in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). I am proud, as I said earlier, to have put my name on those amendments with him, and I pay tribute to the superb speech he made earlier. I have heard him make many compelling speeches, but I would say to the Front Bench that his speech earlier was probably his most compelling yet and I agreed with all of it.

I signed the amendments because I want a humane and just immigration system, and of course one of the principles of justice is that we treat people equally. I am very happy to say that as we leave the EU my right hon. and hon. Friends are working towards an immigration system that treats people much more equally, and I am delighted because of course it is the sort of pledge I have been making to my very diverse community in Wycombe. I am delighted and wish Ministers well as they deliver it.

I want to turn to a particular point though. In talking about foreign national offenders, my hon. Friends the Members for Bishop Auckland (Dehenna Davison) and for Rother Valley (Alexander Stafford) said that constituents would not want these people loose in the UK. I am quite certain that the constituents of Wycombe do not want these people in the UK, but I say to my right hon. and hon. Friends and the whole House that we do not in the United Kingdom imprison people indefinitely on suspicion that they might reoffend.

Indeed, in 2003, Labour introduced a system of imprisonment for public protection, very much along those lines, and a Conservative Government repealed that system of IPP. I hope that my hon. Friends will not mind my saying that I feel a bit long in the tooth for remembering that we repealed that system. We did that because it was right to do so. I want to treat persons from outside the United Kingdom as morally, legally and politically equally as we properly treat people in the United Kingdom, and that means it is not right to detain people indefinitely on suspicion.

Of course, I do not think it is right either that we should be keeping serious offenders in the UK and paying for their upkeep. We should certainly be reforming the system so that such people are promptly deported, which the Home Office insists requires indefinite detention. I agree again with my right hon. Friend the Member for Haltemprice and Howden that were the new clauses to pass it would put pressure on the Department to ensure that people are promptly removed.

I want to put on the record exactly what the Home Affairs Select Committee said about indefinite detention:

“lengthy detention is unnecessary, inhumane and causes harm”.

It also recommended bringing

“an end to indefinite immigration detention and implementing a maximum 28-day time limit.”

I am absolutely in favour of doing that in combination with seeing to it that we can remove foreign national offenders.

I possibly have not got time, but I want to cover a couple of other points.

[Mr David Davis]

My hon. Friend and I have fought together on other battles, not least Brexit, with one thing being that we viewed Britain as rather distinctive. Does he, as I do, see it as shameful that the one thing we are distinctive on in this case is that we are the only country in Europe that allows the indefinite detention of people in our country?

Immigration and Social Security Co-ordination (EU Withdrawal) Bill

David Davis Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons & Ways and Means resolution & Ways and Means resolution: House of Commons
Monday 18th May 2020 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con) [V]]

It is always a privilege to follow the Chair of the Home Affairs Committee, and I will pick up on one or two of the things she said.

The core purpose of the Bill is to deliver on the 2016 mandate of taking back control of our borders, so it is no surprise that I wholeheartedly approve of that policy, although I say to those on both Front Benches that I have always presumed that control of our own borders allows us to create policies that protect the interests of sectors such as care homes and their dedicated workers, and I trust we will do that.

The House should also use this opportunity to put right some deep and long-standing injustices at the heart of our immigration system. As it stands, illegal migrants can be held and detained indefinitely in psychologically inhumane conditions. Detention is meant to facilitate deportation, but we routinely detain people for extraordinary lengths of time without deporting them. By the end of 2019, the individual detained for the longest period had been in a holding centre for 1,002 days —nearly three years. These people are detained without trial or due process, without oversight and without basic freedom, and they are carrying the destabilising psychological burden of having no idea when they will be released. This flies in the face of centuries of British civil liberties and the rule of law.

For the most part, these detainees are not hardened criminals—they are frequently the victims of human trafficking, sexual assault and torture—yet we treat them as criminals, with little compassion at all. Let me tell one story, that of Anna, a Chinese woman who speaks no English. She had fled her home in China after her husband was sentenced to death for drug offences. She was told that she was being taken elsewhere in China. After days of travel, when the doors of her vehicle finally opened, she was not in China, but in rural Britain, where she was forced into prostitution and several years of unpaid work—slavery by another name—under threat of being reported to the immigration authorities. She was then arrested during a raid, taken to Yarl’s Wood and held indefinitely. Anna’s story is not an isolated case; as a country, we detain about 25,000 individuals each year for immigration purposes. Any situation in which the state strips people of their liberty requires the highest possible level of scrutiny and accountability. The purpose of any incarceration should be clear. Conditions and a time for release should be set. That is why I intend to table amendments limiting migrant detention to 28 days and providing robust judicial oversight. This was backed before, at the last turn of this Bill, by a cross-party group of MPs, as well as by the Select Committee on Home Affairs and the Joint Committee on Human Rights. I will finish by saying this simple thing: the UK has a proud tradition of civil liberties and the rule of law, and it is time to honour that by bringing an end to this damaging and unjust policy.

Oral Answers to Questions

David Davis Excerpts

Monday 23rd March 2020 Commons Chamber

[Kit Malthouse]

The hon. Lady raises an extremely important point. While we might see other forms of crime fall because of the lack of activity in the street, we are well aware and sensitive to the fact that fraud might emerge. I have seen over the weekend some reports in the media of unscrupulous individuals exploiting elderly and vulnerable citizens in particular, and certainly when we have been discussing these matters with police leaders on our regular calls, they are aware of that issue and are thinking more about how they could redirect resources towards it, if it becomes systemic.

[Mr David Davis (Haltemprice and Howden) (Con)]

We probably have more than half a million undocumented migrants in this country—people who, if they fall ill with coronavirus, might be afraid to declare themselves to the health authorities for fear of deportation. The Irish Government, who have the same issue in Ireland, have firewalled their national health service data from other parts of Government. I do not know whether that is the right answer, but will the Secretary of State look at the issue and find a similar resolution?

[The Parliamentary Under-Secretary of State for the Home Department (Kevin Foster)]

The point is well made and we will certainly look at it. No one should fear accessing medical advice from our superb NHS for an immigration reason.

Points-based Immigration System

David Davis Excerpts

Monday 24th February 2020 Commons Chamber

[Priti Patel]

The right hon. Lady is right about the deadlines and the timeframe for the EU settlement scheme, and also in saying that by January 2021 we will have established the outline—the first phase—of the points-based system. We are in the process of working with employers. Going back to the comment made just now by my right hon. Friend the Member for Wokingham (John Redwood), we are engaging with employers on the system, the sponsorship route and the way in which employers in the UK work with those who will be coming over from the EU next year so that they have that period to confirm their status and carry on working. We are engaging with employers, and that is my answer.

[Mr David Davis (Haltemprice and Howden) (Con)]

Our excellent Home Secretary had two fundamental questions to answer today: was she going to reflect the democratic will of 70% to 80% of the British public, not to do away with immigration, but to control and manage it properly, and was she going to do it in a way that worked in the national interest, for all of us and all the immigrants who come here to work and give our country the skills that they carry? Is she as surprised as me that the primary thrust of both Opposition spokesmen seems to be to allow British profit-making companies to maximise their access to cheap labour?

[Priti Patel]

In short, I am not surprised by the position that the Opposition have taken, and it shows once again the contempt they have been showing to the British public.

UK-US Extradition Agreement

David Davis Excerpts

Thursday 23rd January 2020 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

Mr Deputy Speaker, while Members make their way out of the Chamber, I will take this opportunity to congratulate you on being the man who effectively announced our departure from the European Union. Your place in history is assured.

Since we agreed the UK-US extradition treaty in 2003, it has been abundantly clear that the British Government of the day struck a truly dreadful deal—asymmetric, sometimes ineffective and often unfair on British citizens. Countless examples down the years have shown that, from the NatWest three to Christopher Tappin, from Gary McKinnon to Anne Sacoolas, the person charged with causing the death by dangerous driving of Harry Dunn. We now risk yet another serious miscarriage of justice with the US extradition request for Dr Mike Lynch, a successful and entrepreneurial British businessmen. Dr Lynch founded an innovative data processing company called Autonomy, which by 2010 was Britain’s largest leading software company. In 2011 it was sold to Hewlett-Packard for £9 billion.

Several years later, Hewlett-Packard claimed that Autonomy was overvalued. Hewlett-Packard sued Dr Lynch for fraud in the United Kingdom. After a lengthy and costly civil trial, Dr Lynch is now awaiting judgment, and I am of course prevented from commenting further on that case due to the sub judice rules, although this is a trial by judge alone, not by jury, so the possibility of undue influence is near zero.

Dr Lynch is now facing almost identical criminal charges in the United States, in yet another aggressive attempt by American authorities to exercise extraterritorial jurisdiction. Despite the Serious Fraud Office deciding that there is no basis for a prosecution in the United Kingdom, the United States authorities are doggedly pursuing his extradition.

Civil cases in this country and the States are decided on the balance of probabilities, a much lower hurdle than for criminal cases, which have to be decided on a “beyond reasonable doubt” basis. If Hewlett-Packard fails to win its civil case against Dr Lynch here in the UK based on that much lower standard of proof than the criminal test, it is inconceivable that the authorities will win a near identical criminal case if it is tried fairly. Accordingly, the case for extradition would evaporate, so the only sensible course of action available to the UK authorities—in this case, the Home Secretary—is to delay the extradition until the United Kingdom judge has made his decision.

This case is important because it is characteristic of the way the American judicial system operates to favour American business. The United States has a tradition of using its broad extradition treaties to cast a wide legal net around the world. As with Mike Lynch, many of these cases are only tenuously linked to the United States. Cases such as those of Ian Norris, the former head of Morgan Crucible, or the NatWest Three all have common themes: they are all British citizens, the alleged crimes all took place on British soil, the United Kingdom system failed to protect them, and the US authorities ultimately got their way.

This does not, by the way, just apply to Britain. In March the US extradited three Credit Suisse bankers for alleged bribes passing between companies in London and Mozambique. The United States tenuously claimed jurisdiction because one transaction was operated through New York. Most of these United States cases are not in pursuit of terrorists or paedophiles or murderers, which is what the extradition treaty was originally designed for.

[Greg Hands (Chelsea and Fulham) (Con)]

I should state that Dr Lynch is my constituent, so I take a keen interest here.

Does my right hon. Friend agree that back in 2003 when the treaty first came in—I was not in the House then, but he was—we were sold it very much on the basis that it was to stop terrorists and committers of serious violence, rather than to deal with these kinds of commercial cases where somebody is effectively looking to repeat a trial, but under US jurisdiction?

[Mr Davis]

My right hon. Friend is exactly right. I was the shadow Home Secretary at the time and I opposed this treaty, but eventually our party gave in on the grounds that it was about paedophilia and terrorism and violent crime. That was the sole basis upon which we accepted what we thought at the time was a treaty that made it too easy for the US to extradite. And of course what we are seeing now is that that is not what is happening: the United States is going after white-collar businessmen and seeking to be the judge, jury and executioner for global commercial deals. Since 2003, some 80% of the extraditions were for non-violent crimes. This seems like very strange behaviour when we consider that this is a country that did not convict any American chief executives in the 2008 crisis, which clearly had some frauds behind it.

Dr Lynch is being charged with several counts of wire fraud, an offence originally designed to make a state crime into a federal crime so that prosecutions could be made by federal authorities. Its application quickly expanded, prompting one federal judge to say it has

“been invoked to impose criminal penalties upon a staggeringly broad swath of behaviour”.

That staggeringly broad swath is now being applied across national borders. In essence, a legal playbook designed to catch and convict mobsters and racketeers has first been repurposed to catch white-collar offenders, and now that repurposing has been extended outside American borders into what should be other countries’ jurisdictions.

The Home Affairs Committee concluded, in a 2012 report on the UK-US extradition treaty, that the US

“has the power to reach out around the world and—provided there is a very, very tenuous connection with the US—it generally has the power to prosecute.”

In a 2011 report on our extradition arrangements, Lord Justice Scott Baker concluded that we do not need to change the rules to ensure that London-based offences are dealt with here in the UK. He was wrong. He failed to give enough weight to the US ambition to extend its extraterritorial jurisdiction on commercial crimes. He also made no allowance for the incredibly one-sided nature of the prosecution and trial of foreign suspects in the US justice system. This is the core problem of our asymmetric and unbalanced treaty with the US.

An American citizen facing extradition to the UK can challenge it in a US court on the basis that there is no “probable cause”, but a UK citizen facing extradition to the US has no right to a “reasonable grounds” hearing. This is what the Joint Committee on Human Rights called in 2011 a

“lack of reciprocity in the Treaty.”

It went on to recommend:

“The Government should increase the proof required for the extradition of British citizens to the US so as to require sufficient evidence to establish probable cause, as is required for the extradition of a US citizen to the UK.”

What is more, the US Secretary of State has far greater discretion to refuse an extradition than our Home Secretary. Just look at the rejected extradition request for Anne Sacoolas.

The British Extradition Act 2003 states:

“The Secretary of State must order the person’s discharge.”

The equivalent US code, however, states:

“The Secretary of State may order the person....to be tried”.

That sounds like a minor difference in language, but it has had a very, very big impact.

Since 2007, the UK has surrendered 135 UK nationals to the US, 99 of them for non-violent alleged offences. During the same period, the US has surrendered only 11 people to the UK. That is why countries such as France and Israel refuse to allow their citizens to be extradited. It seems inconceivable, then, that the UK has ceded so much of its discretion, particularly given the extraordinary way in which extradited suspects are treated in the US. Many people think the US justice system is broadly similar to ours. The reality is that it is much more slanted.

If Dr Lynch is unfortunate enough to be extradited and denied bail, as most foreign suspects are—they are taken to be an intrinsic flight risk—he will face appalling conditions that are much worse than anything found in the UK. He will likely find himself in a high-security prison in a cramped cell with gang members, drug dealers and murderers. Take the example of the NatWest Three. They were investigated by the UK authorities in 2001 for financial crimes. The alleged offences took place in London, while the three were employed by a London-based company. After the Financial Services Authority and the Serious Fraud Office decided that there was no basis for a prosecution in the UK, the three were extradited to the US because the Justice Department believed their crimes contributed to the collapse of Enron.

The NatWest three have since written vivid accounts of their experience. As soon as they stepped off the plane in the US, before a trial had even begun, they were treated like convicted criminals. Handcuffed and frogmarched to the jail, they were treated with contempt by marshals and subjected to a comprehensive and intrusive full-body search. It highlighted the classic approach that US authorities take. They were told that if they pleaded not guilty, they would be denied bail and get 35 years in a high-security US prison, but if they pleaded guilty, they would get only three years, possibly serving some of it in a British jail. In the end, they were sentenced to 37 months in a Texas prison because they gave way to the pressure.

That is standard practice in the American system, which has a corrosive over-reliance on plea bargains. Ninety-seven per cent. of cases are settled by a plea bargain in the United States. In the US, mandatory sentencing means that it is the prosecutor who determines the sentence, not the judge, which allows the prosecutor to operate a sort of judicial blackmail. The US imprisons a higher proportion of its citizens than any other country in the world. There are many reasons for that, but no doubt the ferocious use of plea bargains is a major factor.

Once charges have been brought, and after Dr Lynch—if he is unfortunate to suffer this—has spent months in appalling conditions, prosecutors will almost certainly try to convince him to admit guilt to a lesser charge. They will promise a shorter sentence, some of which might be served in the UK, and they will remind him of the huge financial cost of a protracted and complex trial. If he refuses, he will face the prospect of a deliberately intimidating lengthy sentence, and the costs of the trial could run into millions. The rules are set up for him to fail. He will be told that he must run his defence from his own prison cell, where he can only have one ream of paper at a time.

To put that in perspective, Dr Lynch’s trial so far has cost £40 million and has involved over 11 million documents. The opening arguments alone were 1,067 pages and the closing arguments were 4,494 pages. One can easily see how someone in Dr Lynch’s position would be coerced into giving in and admitting guilt, irrespective of the facts. I would not call that a plea bargain; I would call that blackmail. This is nothing like normal British justice. It effectively turns the presumption of innocence into the presumption of guilt.

Mike Lynch could be arrested any day now and sent to the United States to go through this appalling ordeal, but I hope not. I hope that the Home Secretary will use every legal mechanism available to delay this extradition until the judge has made his decision in the civil trial. UK and European law guarantee a right to a fair trial. An extradition before a UK trial has concluded is incompatible with that right, as it pre-empts the judgment of the court. The Home Secretary should therefore delay the extradition on grounds of basic justice, just as my right hon. Friend the Member for Maidenhead (Mrs May) refused the extradition of Gary McKinnon on human rights grounds when she was Home Secretary in 2012. If the Home Secretary certifies the extradition request, it is out of her hands. If she holds off certification, we can let British justice take its course.

In the longer term, we need to take a fresh look at our extradition arrangements with the United States, particularly as we embark on a new trading relationship with them. In the next decade, Britain and the US will develop even closer commercial relationships. Businesses developed by brilliant British inventors will look to merge, co-operate, or sell to big US companies. If the current extradition treaty stands, every one of them could face American extraterritorial legal action and a legal system stacked against them. In the interests of both countries, this has to change. We need to find a way to rein in the US’s extraterritorial tendencies and ensure that our arrangements are fair, balanced and based on reciprocity.

The simplest way to do that is to change the British law to exactly mirror the American law—the Americans cannot possibly complain about that—and say that the Secretary of State “may” extradite, rather than “must”. If the American system insists on trying to exercise extraterritorial jurisdiction in the American interest, perhaps we should mimic Israel and refuse to extradite British citizens for anything other than serious crimes of violence and terrorism. We need to give British citizens, businessmen and entrepreneurs the protection, certainty and justice that they deserve.

Prevent Programme

David Davis Excerpts

Wednesday 22nd January 2020 Commons Chamber

[Brandon Lewis]

The right hon. Lady outlined the importance of protest groups and their ability to raise the profile of the issue they are protesting about. We absolutely agree with that. As I said, we are very clear that the right to peaceful protest is a cornerstone of our just society, and an indispensable channel of political and social expression. The police have recalled the guidance and are reviewing it, and both we and the police have said that protest groups are not extremist groups, and that membership of a protest organisation is not—nor should it ever be—an indicator that an individual is vulnerable to being drawn into terrorism. It is important that protest groups have that space. We believe in, defend and fight for freedom of speech, and will continue to do so.

The statutory deadline for the review to be completed and its findings shared remains 12 August 2020. The next steps are being considered right now and will be announced in due course.

[Mr David Davis (Haltemprice and Howden) (Con)]

There is no doubt that this is a difficult area, but the Home Office always used to see its job as the protection both of life and of our way of life. Unfortunately, in the almost impossible task of preventing every act of violence and of terrorism, the Home Office has sometimes slipped somewhat into thought police mode. Will the Minister remind all the agencies that we all subscribe to the French saying, “I may detest what you believe, but I will defend to the death your right to say it”?

[Brandon Lewis]

As ever, my right hon. Friend makes a very important point, and he has confirmed my point. I hope that everyone across the House believes in freedom of speech, and in people’s right to that freedom; we need to defend that right. I assure him that the Home Secretary and I meet counter-terrorism police and our agencies weekly, and we will raise this issue with them in our very next meeting.