2014 JHA Opt-out Decision
William Cash Excerpts(11 years, 5 months ago)
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Mr Cash
I am most grateful to my right hon. Friend for giving way. Her response to the hon. Member for Cambridge (Dr Huppert) seemed to suggest that the speed with which he advocates the sorting out of the opt-ins might truncate the amount of scrutiny that is needed. I thought, as a result of the amendment tabled by me and other Select Committee Chairmen to the original motion, we had established that progress had been made on that point. Will my right hon. Friend make the situation clear?
Mrs May
I am happy to make it clear and sorry if my remarks to my hon. Friend the Member for Cambridge led my hon. Friend the Member for Stone (Mr Cash) to interpret my response in that way, because that was certainly not my intention. I will specify more clearly the process as I see it in due course.
Yvette Cooper
There is a whole series of measures in respect of which it will make no difference whether we are in them or out of them. We have no objection to opting out of a series of redundant measures. However, there must be proper assurances and guarantees about the measures that we need to opt back into. Rather than a massive transfer of powers, this is, as the Prime Minister said, more like a massive transfer of hot air. There is not the substance in this to justify the Home Secretary’s parade of historic significance and celebration of sovereignty.
Although the Home Secretary has not set out any major benefits from opting out of these measures, we know that there are risks to the serious measures where even she now admits we need to opt back in. She has no guarantees in place and no assurances from the Commission or the Council that at least on the most important measures—the arrest warrant, data sharing, joint investigations—we will be able to opt back in. She will know that the House of Lords pointed out that when Denmark exercised its opt-out,
“the Commission had frequently refused permission for the Danes to conclude agreements in certain areas”.
Nor has she any guarantee on the timetable or, for example, whether we will simultaneously be able to opt back into the European arrest warrant, whether there will be a gap in its operation, or whether complex or risky transitional arrangements will need to be negotiated.
Given how important the Home Secretary herself has said the European arrest warrant and various other measures are, surely it is important to ensure that there is no gap in operation. She can provide no assurance for the police that there will no interruption, therefore, of their use of the arrest warrant. The House of Lords report also said that
“the Government have not provided us with even a summary of the reactions of the other Member States to the Government’s intention to exercise the opt-out”
which
“may be critical in assessing the potential success or otherwise”
of the UK’s negotiation to rejoin particular measures. Surely on these most important measures she should seek assurances from the Commission and the Council before she asks this House to opt out.
Mr Cash
I am grateful to the shadow Home Secretary for giving way; I was in contest with her in the days when I was shadow Attorney-General and she was in government. She will recall the 17th report of the European Scrutiny Committee in 2001 and she will also recall that there was very severe criticism by that Committee of the manner in which this was all done with respect to the European arrest warrant. If she does not remember, no doubt she can look it up. With respect to the proposal before the House and the official Opposition amendment, how does she reconcile the words in that amendment with article 10 of protocol 36? I am sure she will remember what that says.
Yvette Cooper
As always, I bow to the detail of the hon. Gentleman’s memory. I confess that it is true—I cannot remember the details on page 37 of the 17th report of the European Scrutiny Committee from 2001, though I am sure that if I gave way to him again, he could quote precisely to me, line by line, the detail of its conclusions.
Our position is simple. We think the European arrest warrant is so important that we should be getting assurances. We should be doing as the House of Lords suggested. We should be getting the summary of reactions of the other member states to the Government’s intention. We should be getting assurances from the Commission that it will look favourably on getting us back into the European arrest warrant simultaneously and that we do not have a gap in operation.
Yvette Cooper
I hesitate to give way to the hon. Gentleman because I suspect he will quote from page 37, but I will do so briefly, then I want to make final progress.
Mr Deputy Speaker (Mr Lindsay Hoyle)
I hope that the hon. Gentleman’s intervention will be brief.
Mr Cash
Basically, the European Scrutiny Committee, under the chairmanship of the Government at that time, said:
“The presentation of radically changed texts in the last days of a Presidency, with calls for their immediate adoption, does not appear to us to be an appropriate way of determining changes at EU level to the criminal law…The legislative process should be open and transparent and not one of secret bargaining.”
Yvette Cooper
The hon. Gentleman probably does need to recognise that things have moved on slightly since 2001, and there are some important issues for us to resolve today.
As I said, we have no objection to the opt-out in principle. We did negotiate the option in practice. Nor do we have any objection to opting out of a series of redundant or superseded measures, which the UK does not participate in anyway. But we do have serious objections to going ahead with an opt-out without the assurances about the serious measures that we need to opt into. We have serious objections, too, to being asked in the House of Commons to adopt and endorse a half-formed strategy, which may or may not change by October.
The Home Secretary is asking the House of Commons to endorse her opt-out, to endorse her opt-in, to accept that a possible future Conservative Government will opt-out again, and to recognise that Select Committees may still shake it all about anyway. This is a massive game of hokey cokey. She is asking us to vote for the hokey and for the cokey, the hocus and the pocus, the smoke and the mirrors, and it is not an honest debate with Parliament about the important issues of crime and justice. The Home Secretary is asking for a blank cheque from the House of Commons today: a blank cheque on which of the measures she will end up opting back into; a blank cheque for European negotiations with no guarantees in place for the police. To those who want bigger changes in the relationship with Europe, she says, “Vote to opt out, and don’t worry yourselves about the detail to opt back in.” To those who support crime fighting, she says, “Vote to opt out, then leave me to negotiate. It will be fine.” There is no real substance for those who want to opt out, and a lot of risk and uncertainty for those who want to opt back into the series of measures.
This is a parliamentary charade: a promise of a massive transfer of powers that is not real; a promise that European crime-fighting powers are safe with no guarantees; a call to endorse the Home Secretary’s strategy with no proper scrutiny; and a vote that could wait until October. That is why we will not support her strategy tonight.
Keith Vaz
The best course of action would have been to take note of what the Government have done without making a decision as that would have given the whole House an opportunity to come to a view that these matters need to be scrutinised.
Of course, we need to opt out of some of the measures, for the reasons given by the hon. Member for North East Somerset (Jacob Rees-Mogg), the shadow Home Secretary my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and others. Some of the measures are obsolete and, to be frank, I did not know that until I heard about it today. I have not had the chance to look through the measures and I am not sure that every other Member has, either.
I would have preferred a take-note motion and not a Division over something that I think the House as a whole supports: the need for us to look again at European legislation and to decide very carefully whether or not we want to opt into some of the measures again. The Home Secretary has missed that opportunity so, sadly, we will divide, which I think will send mixed messages to the European Union about what this House really intends.
I have a point of substance about the European arrest warrant. I have heard what my right hon. Friend the shadow Home Secretary has said, but I am concerned about the way in which the warrant operates. I am particularly concerned about those cases mentioned by right hon. and hon. Members that highlight the disproportionate way in which other countries deal with it compared with what we do. We have more surrenders than arrests and it is better for our European partners than it is for us, according to Home Office statistics.
I accept all the cases that have been mentioned by my right hon. Friend the shadow Home Secretary and the Home Secretary; I think the Front Benchers agree on them. On the very serious cases, we need co-operation with our European partners. It would not be practicable to negotiate with each one.
The problem, however, rests with the judiciary in some of these countries, including Poland. So many of the cases in this country relate to Poland and are very minor. I read of someone who had the European arrest warrant issued against him because he had stolen a wheelbarrow. Another person who gave false information when obtaining a loan of only £200 from a Polish bank has also been subject to the European arrest warrant. Our courts are being clogged up because of judicial decisions. I had hoped that our Committee could have gone to Poland to meet its chief justice to try to understand exactly why this is happening, but we will not have the time to do that now, because this House goes into recess in four days’ time and we will not be back until September.
Mr Cash
I am grateful to the right hon. Gentleman for the way in which he is making the very important case for our mutual amendment. Does he accept that one of the real problems is not just the question, as the Home Secretary has said, of whether our own laws would be involved and whether we would be able to make appropriate amendments in this House, but that the definition of judicial authority is absent from the European arrest warrant? I suspect that that is the reason why it is so difficult to deal with the examples the right hon. Gentleman has given. It is a question not of whether we can amend the laws in this House, but of whether the European arrest warrant itself does the job of creating proper judicial authorities.
Keith Vaz
The hon. Gentleman is absolutely right. I want to give the Home Secretary the benefit of the doubt. The proposals she has announced today may represent the right approach to deal with the issues raised by the hon. Member for Esher and Walton (Mr Raab) and others, and her amendments to domestic law may be sufficient, but we do not know whether that is the case, because we need time to consider her proposals. Unless there is engagement with the judiciary in other countries, anything we do in our domestic law will, to be frank, not make any difference.
Mr William Cash (Stone) (Con)
This has been a classic example of scrutiny going wrong, not from the point of view of the European Scrutiny Committee, the Home Affairs Committee or the Justice Committee, but from the point of view of the way in which the Government have handled it. We have been through these matters over the past week, and they are being given a great deal of consideration. I am glad to say that we have had the opportunity to meet the Home Secretary, as the right hon. Member for Leicester East (Keith Vaz) described. She has listened, and made changes to the original motion, which would have severely prejudiced the scrutiny by this House that takes place in line with the principles that my right hon. Friend the Member for Wokingham (Mr Redwood) set out. Those principles are fundamental to the running of our affairs in this House that relate to the European Union. There was a danger that the scrutiny process set up under the requirements of our Standing Orders was going to be completely bypassed, but the Home Secretary has listened and we have made some progress.
There is another amendment, to which the right hon. Member for Leicester East referred, and I urge the Government to accept it. If they do not do so, I strongly urge Members on both sides of the House to vote for it. It would be unfortunate if the Government were obdurate and said that they were not prepared to accept it, in opposition to the views not only of three Select Committee Chairmen but of many others who form part of the Liaison Committee, who I have reason to believe would want to support the amendment.
The Government’s motion states that they would
“seek to rejoin measures where it is in the national interest to do so”.
As it happens, at this juncture nobody is in a position to form a judgment about what is or is not in the national interest because the scrutiny process has not taken place. If we are to have a scrutiny process that means anything, combining the three views of the respective Select Committees, it is simply not possible or practical for a decision to be taken until those matters have been properly considered.
Mark Reckless
I am not sure whether my hon. Friend has noticed some consternation among Liberal Democrat Members who think it is always and everywhere in the national interest to opt into anything that the European Union is doing.
Dr Huppert
The hon. Member for Rochester and Strood (Mark Reckless), who serves on the Home Affairs Committee with me, is heavily wrong in this case, but that is not what I wished to say. Does the hon. Member for Stone (Mr Cash) believe that one cannot hold a position on something until it has been through a Select Committee? Select Committees do wonderful work but there are other ways to find things out. Not every single decision of this House goes through a Select Committee—that might be a bit slow.
Mr Cash
If that were the case for scrutiny, I would simply refer the hon. Gentleman to the Standing Orders of this House that make it crystal clear that the scrutiny process must be as good as it possibly can be. Indeed, there is an inquiry into the scrutiny process to improve it even further in line with concerns that have been expressed by the House on a number of occasions. The process is also being reviewed throughout Europe through the Conference of Community and European Affairs Committees of Parliaments of the European Union. Everybody is anxious to ensure that European scrutiny takes place properly, precisely because of the democratic basis on which such decisions must be taken.
Mr Clappison
My hon. Friend the Member for Rochester and Strood (Mark Reckless) does not look completely overwhelmed at being told that he is heavily wrong by the hon. Member for Cambridge (Dr Huppert), but never mind that. Before my hon. Friend the Member for Stone (Mr Cash) moves away from the issue of national interest, is it not part of our national interest for our law to be determined in this House of Commons and subject to the jurisdiction of our judges rather than European judges?
Mr Cash
Indeed, and I personally take that view, which lies at the heart of the matter that I raised with the right hon. Member for Leicester East. The expression “judicial authority” leaves a great deal to be desired and has given rise to a lot of problems not only in this country but elsewhere throughout Europe. It is not just a question of whether we adjust our domestic law in certain respects, but of whether the European arrest warrant can properly fulfil the judicial role allocated to it. As I said earlier, other matters such as dual criminality must also be considered. Many questions looked at in 2001 were, as the shadow Home Secretary knows, considered by the European Scrutiny Committee, although she was not over-anxious to go into the detail. No doubt she will when she has an opportunity to come back into the Chamber, and she is very welcome to do that later on.
As the right hon. Member for Leicester East said, the original motion was withdrawn but it did not mention the role in this process of the European Scrutiny, Home Affairs and Justice Committees, despite repeated promises that those Committees would be consulted. There were also undertakings that we would be given explanatory memorandums on measures covered by the opt-out by the middle of February. In my view, and that of my Committee as a whole, the Government’s failure to provide explanatory memorandums in line with their timetable has been the major factor impeding Select Committee consideration of the block opt-out.
The history of those various exchanges and undertakings is set out in our report, “The 2014 block opt-out—engaging with Parliament”—that has been seriously lacking—which is tagged in this debate along with the Government’s response.
In my view, the way the European Scrutiny Committee and the other Committees have jointly sought information from the Government is an excellent example of the various elements of the scrutiny process working together in a consistent and co-ordinated manner. In that context, the fact that the Government’s revised motion does not provide for a scrutiny stage to be concluded by the end of October is to be welcomed. The amendment to the revised motion, which we have tabled jointly, centres on the scrutiny process and aims to ensure that the Select Committees can undertake meaningful scrutiny of the Government’s proposals. I hope that the Government will listen to that.
As Chairs of these Committees, we are concerned that the inclusion of the words
“on the set of measures in Command Paper 8671”
is likely, implicitly or explicitly, to endorse the Government’s list of 35. The amendment would simply leave out these words, so as to avoid a prejudgment of the Committee’s conclusions. That was the substance of the point made by the right hon. Member for Leicester East.
Chris Bryant
Does that mean the Government would have to come back to the House with a proper debate on the precise list of opt-in measures, rather than the impenetrable document they have provided, and make a coherent argument?
Mr Cash
The Command Paper sets out, very late in the day, various lists, proposals, explanatory memorandums and the rest of it, effectively bouncing the Committees and shunting straight past the scrutiny process, in defiance of the promises and undertakings given months ago. The Chairs are deeply concerned about this attempt to push the scrutiny process to one side. The European Scrutiny Committee, which I Chair, has a specific job to do under Standing Orders that cannot be brushed aside by the Government or anybody else. Those are the Standing Orders of the House. The other two Committees will want to look at policy questions, but we consider proposals more on a document-by-document basis, and there are 130-odd of them, so the matter has to be dealt with within the framework of Standing Orders.
I look to the Justice Secretary, who is sitting on the Front Bench, knowing in my heart that he wants to ensure that the scrutiny process works effectively, and I invite him, in consultation with the Home Secretary, to accept our amendment and put in place that proper scrutiny process. There is no great hurry. What puzzles many Members is why an attempt has been made to bounce the House, as it were; we are puzzled about why this had to be rushed, and we have had no explanation. We simply do not understand the reasons. We do not see why there has to be a vote either. Many people think there should not be one.
In January, the European Scrutiny Committee requested that the relevant Committees should have sight of the Government’s impact assessments on the various measures under consideration. Will the Home Secretary and the Justice Secretary supply us with this information as soon as possible? It is all part of the scrutiny process. If the Government really want transparent and democratic systems that work in the interests of those whom we have the honour to represent, it is essential that we do this properly.
Sir Alan Beith
Did the three of us—the three Committee Chairs—not warn the Government repeatedly against allowing this situation to arise by asking them to produce the memorandums in the early part of the year?
Mr Cash
This is driven not by hostility, but by basic common sense: it helps the democratic process and the working between the Government and the Select Committee system, whose role has been enhanced recently, to work with the grain. That is the point: this has been working against the grain. I know that my right hon. Friends the Justice Secretary and the Home Secretary, not to mention the Prime Minister, are conscious of these questions. If mistakes were made in trying to rush and not give scrutiny the opportunities that are needed in the interests of those whom we serve, it is essential to get this right. I urge them strongly to accept the amendment in the name of the Chairmen of those Committees, and on which the Chairmen of other Committees have expressed an interest too.
The Opposition’s amendment is a rather curious state of affairs, something to which I referred when I intervened on the shadow Home Secretary. I simply put it on the record like this: the full sequence would be that the United Kingdom would have to notify its block opt-out decision six months before it could notify which measures it would seek to opt back into. The specific order is clearly set out—I was not trying to bounce the right hon. Lady—in article 10 of protocol 36, and has been confirmed by the Commission in response to a question from the European Parliament. We know what the sequence should be, so it would not be possible for the Government to notify the European institutions of their intention to exercise the block opt-out once, to use the wording of the amendment, those institutions
“have committed to the UK’s ongoing participation”
in the measures concerned. There is something wrong with the wording of the Opposition’s amendment, because it does not fit with article 10 of protocol 36. Anyone can make a pedantic point, but this goes to the heart of article 10 of protocol 36.
Chris Bryant
But article 10 of protocol 36 also says that the Commission will, wherever possible, seek to ensure that there is a maximum degree of participation by the United Kingdom in any measures it wants to opt into. The difficulty arises in that sometimes the precise package of measures may not be a package of measures that works as far as the Commission is concerned— the point Commissioner Reding has already made to the Justice Secretary in private conversation.
Mr Cash
I do not know about these private conversations, and I do not know whether Prism has been at work to enable the hon. Gentleman to know what they consisted of. [Interruption.] Oh, he told you. Well, be that as it may, the fact is that article 10 of protocol 36 is clear, and has been confirmed by the Commission as such in a response to a question in the European Parliament. I will leave it at that, but it would be strange for us—I am talking about the House as a whole—to end up voting for an amendment tabled by the official Opposition, with all the expertise at their disposal, that was inherently wrong.
George Eustice
My hon. Friend is making an important technical point, but is there not a more fundamental objection? The Opposition’s amendment is tantamount to saying that we must first ask the permission of the European Commission before we can exercise the treaty right that we have for this opt-out. It is basically saying that we should wait and see what the Commission thinks before we make a decision.
Mr Redwood
I am very attracted to amendment (b), standing in the name of my hon. Friend and the other two Committee Chairmen. I note that we have three senior Committee Chairmen, all of different parties, supporting it, and I think I heard those on the Labour Front Bench implying that they, too, supported it. Can my hon. Friend say whether this is now the view of the House?
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
indicated assent.
Chris Bryant
On a point of order, Madam Deputy Speaker. As I understand it, the Justice Secretary just nodded to the assertion made by the hon. Gentleman. I think he was assenting to the Government’s acceptance of the amendment tabled in the name of the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith). If so, I would have thought it would be in order for the Justice Secretary to make that view known for the whole House.
Madam Deputy Speaker
For a change, but perhaps we could return to Bill Cash.
Mr Cash
I really have no more to add, because this has been a highly satisfactory, if slightly informal, way of proceeding. I am extremely glad that the Justice Secretary has said that the Government will accept amendment (b), because it demonstrates that, even in the inquisitorial system that we have, accountability and good sense can run together.
Dr Huppert
I am delighted that the hon. Gentleman is happy, although on occasion he may not be entirely accurate.
We have discussed a number of measures that the Liberal Democrats, for example, would not opt into, and I shall say more about some of them later. However, I still believe that the European arrest warrant is absolutely right, and I was pleased to hear the Home Secretary extol its virtues. I hope that she will continue to do so, and that the Select Committee will continue to support a reformed arrest warrant.
What we just heard from the hon. Member for Rochester and Strood (Mark Reckless), and what we heard earlier from the right hon. Member for Wokingham (Mr Redwood) and the hon. Member for Stone (Mr Cash), illustrated the tendency of some Members to do exactly what we were urged not to do by the hon. Member for Caerphilly (Wayne David): the tendency to be so obsessed with Europe that crime, justice and all the other issues that we ought to care about—and about which our constituents actually care—fall by the wayside.
Mr Cash
I agree that this is not about Europe. It is about Britain; it is about the British citizens. I invite the hon. Gentleman to consider a case in Staffordshire. A constituent of one of my neighbouring Members of Parliament was convicted in Italy of murder and was sentenced to 15 years in absentia, but was not even in Italy when the murder was committed.
Dr Huppert
The hon. Gentleman is certainly making a point, but I am not sure that it is entirely the point. Justice systems all around the world make errors. The British justice system has convicted people, only for those convictions to be overturned on appeal. I do not claim that justice is perfect, but I do claim that an obsession with European issues weakens our focus on policing and crime, which are what we should be focusing on. I do not know the circumstances of the case the hon. Gentleman mentions, and it is entirely possible errors were made, but that does not mean we should not work with Europe or continue with the justice and home affairs co-operation we currently have.
Mr Buckland
I certainly was not charging by the word; it was a graduated fee system, but that is for another debate. I do not think my hon. Friend should be criticised for repeating the point.
Mr Buckland
I will give way in a moment, but I want to deal with the point raised by, among others, my very good hon. Friend the Member for North East Somerset (Jacob Rees-Mogg). In an interesting intervention earlier in the debate, he mentioned the legal personality of the EU, and the possibility of an extradition agreement between the United Kingdom and the EU. I think he is right about that—[Interruption.] Well, I think he is. Against that observation, however, the reality of the situation we face in which countries and organisations are making a multiplicity of arrangements with each other means that individual bilateral arrangements will take their place far down the order of priorities—too far down for the victims of crime we represent. With the greatest respect to my hon. Friend, that is not a price we can afford to pay when it comes to the swift administration of justice.
Mr Cash
I rose to say that I thought my hon. Friend was making a good job of what I think is a voluntary opt-in to this debate, and it is very instructive. He talked about repeating a point again and again and again, but I think it worth pointing out to him that there is a rule, I believe, about tedious repetition. I am sure he did not mean that he was in any way going to fall into that trap.
Mr Buckland
I was not referring to me but to the previous intervention. I certainly do not fall into that category. I hope I do not, and I do not intend to —[Interruption.] I am grateful for the Whip’s assistance on this occasion in putting that on the record. In reality, the structures within which the Government have to work are not of their creation. They are the product of a rather depressing series of negotiations—and I speak as a more pro-European Conservative than most—that ended up in the Lisbon treaty.
Collectively, the countries of the European Union took themselves down a massive constitutional cul-de-sac when they should have been thinking about the growing economic crisis that exploded on us all in 2007-08. That is history and we must deal with its consequences, but the framework within which we operate is something the Government could not control. Setting out a clear intention—as the Government are doing—indicating which proposals they wish to opt back into, and allowing this place to debate each measure piece by piece, is the right way to proceed. That sends a clear message to our colleagues in the European Union, and allows practical measures to be taken that will enhance the administration of justice, while at the same time avoiding some of the pitfalls that I and others have outlined today.
Mark Reckless
No, I would not accept that for a minute. I was prepared for a repetitious intervention later, but my hon. Friend got in early. I must make some progress, and I will deal with his point.
The situation is the complete opposite of what my hon. Friend says. Under Maastricht—that great success hailed from the rooftops by an ex-Prime Minister who called it game, set and match to Britain—we had intergovernmental procedures and pillared structures, meaning that the Commission and the European Court of Justice would not be involved in foreign and justice and home affairs matters; they would be dealt with solely on an intergovernmental basis. Unfortunately, those pillars have been chipped away at, and with the Lisbon treaty, they were knocked over, hence today’s motion. The previous Labour Government could not say that the constitution was exactly the same as the Lisbon treaty—I am informed by my hon. Friend the Member for Hertsmere (Mr Clappison) that making out the two were different was one of the few face-saving fig leaves they picked on—and now these areas are being folded into the treaty structure originally envisaged under the Maastricht treaty. Rather than an opt-out from 130-odd measures, as the idea is styled, the proposal was—until the acceptance earlier of amendment (b), which was very significant—to opt into Commission enforcement of ECJ jurisdiction in 35 measures, including almost all of the most important.
Mr Cash
I would like to pay tribute to my hon. Friend. I can well remember how some years ago at Oxford, at the time of the Maastricht treaty, he was able to participate in debates and discussions on these very issues. We were in complete agreement then, and have remained so ever since.
Mark Reckless
Yes, but that was partly because I and others benefited greatly from the instruction of my hon. Friend, and I now very much enjoy working with him on these issues.
There has been a sea change in how these issues are seen in this country. We talk about a zone of
“freedom, security and justice without internal borders”,
but many of the problems that the European arrest warrant and other provisions are meant to tackle are problems only because of the free movement within the EU that has led to many people from particular EU countries coming to these shores. I welcome enormously our apparent bilateral co-operation with the Romanian police. Apparently, there is an encampment of Romanians around Hyde Park corner and Marble Arch, and we are getting assistance from the Romanian police to deal with that, but were it not for the treaty rights and freedom of movement, we could deport these people.
The Immigration Minister said earlier that he did not want to criminalise being an illegal immigrant, because the objective was to get them back to their home countries. Similarly here, rather than give up our system of justice and have it administered at a supranational level, we ought to be able to deal with these extradition requests—my hon. Friend the Member for Croydon South (Richard Ottaway) informs us that 95% of them are for nationals of other countries—simply by deporting them to their countries. We do not need an extradition arrangement. If a national of a third country is creating problems in this country or if we have evidence from another state that they would like them back to deal with one of these issues, we should be able to deport them. We do not need something administered and overseen by the ECJ with enforcement powers, via the Commission, to deal with these issues.
We have heard about the protections under the EAW. My hon. Friend the Member for Northampton North (Michael Ellis) is no longer here, so I guess I will not be taking an intervention from him on this issue. We have read, however, about what these protections are. On pre-trial detention, the Home Secretary told us:
“Other hon. Members have expressed concerns about lengthy and avoidable pre-trial detention. I will amend our Extradition Act 2003 to ensure that people in the UK can be extradited under the European arrest warrant only when the requesting state has already made a decision to charge and a decision to try”.
That sounds good, but she then continued:
“unless that person’s presence is required in that jurisdiction for those decisions to be made.”—[Official Report, 9 July 2013; Vol. 566, c. 178.]
Even that protection, therefore, is inoperable in some member states—and, I fear, some of the member states that might give rise to some of the greatest problems in this regard. Even if we have that protection, however, the whole thing is susceptible to the ECJ. The ECJ will decide what it means, not us.
Ever since, under the Single European Act, we have had majority voting on health and safety matters, and we saw employment law suddenly become a matter of health and safety, meaning that European institutions, rather than Parliament, can determine what happens in this country, I have been sceptical about the ECJ. My hon. Friend the Member for Esher and Walton (Mr Raab), who is probably more knowledgeable about these issues than any other Member, rightly drew our attention to the Metock judgment and what that meant for Ireland and, by implication, other member states in terms of our powers—or now our absence of powers—over matters of immigration. Were we to opt back in and were we not to vote to leave the EU, we would be putting these 35 areas irrevocably under the control of the Commission and the ECJ. I simply cannot believe that that is right.
My right hon. Friend the Prime Minister said:
“we will negotiate for a return of powers in criminal justice. We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges.”
The point, though, is that we cannot do that when something is susceptible to the final judgment of the ECJ. The Prime Minister also said:
“our legal system is here to protect our citizens, and that protection should be given up only if we can really trust the legal systems of other states.”—[Official Report, 25 March 2003; Vol. 402, c. 196.]
My hon. Friend the Member for Croydon South said that the arrest warrants built such trust, but I think the opposite is often the case. There are several member states in whose criminal justice systems I and many colleagues do not have that trust, and without it we should not be putting the rights and liberties of British citizens in their hands.
In his first full year in the House, the Prime Minister, talking about the EAW, said that
“the Home Secretary would have to say, ‘I am sorry. You may spend time rotting in a Greek or Spanish jail. Weeks may pass before you are even charged with an offence that is not a crime in this country. But there is nothing I can do about it.’”—[Official Report, 9 December 2002; Vol. 396, c. 109.]
Thankfully, there is now something he can do about it. I was reading a comment by the noble Lord Hannay, who serves on the House of Lords EU Select Committee, which people quote with great authority. He said that the planned opt-outs were
“defunct, dross or things that have no impact”,
whereas staying in the arrest warrant was a “huge prize”. That was why I was initially so concerned about the motion: it referenced both Command Paper 8671 and those 35 measures, including the EAW, and would have given the imprimatur of this House to opting back into the EAW. I am delighted that that is no longer the case. I pay great tribute to my right hon. Friend the Justice Secretary, who is in his place, and the Government as a whole for accepting the amendment tabled by the three aforementioned Select Committee Chairs. In particular, I pay tribute to my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), because he has placed principle before party.
The sequencing is important. Tonight, we have a clean motion to exercise the block opt-out. Anything further will be for the future; there might be a second blip and consideration of what we want to opt back into. The Government have set out, in a document, a preliminary view, but it is no more than that. The House has not taken note of it, let alone approved it.
A week ago, my hon. Friend the Member for Cambridge (Dr Huppert) came into the Home Affairs Select Committee beaming after the Home Secretary’s statement to the House, but earlier he referred merely to his “hope” that we might opt back into the EAW.
Mr Cash
Does my hon. Friend accept that the driving force that lay behind the necessity for the Chairmen of the three Select Committees, including the European Scrutiny Committee, to ensure that this took place, was driven by the very thing he and my right hon. Friend the Member for Wokingham (Mr Redwood) were talking about earlier? Those of us who believe in the parliamentary sovereignty of this place know that this is more about the United Kingdom than it is about Europe. We have to stick to the fourth Bloomberg principle, which is that national Parliaments are the root of our democracy.
Mark Reckless
My hon. Friend is absolutely right. The constitutional principles to which he draws attention are far more important than any temporary coalition deal that may or may not have been stitched up. If it was stitched up, it has become unstitched. Instead of a motion to have a block opt-out tied to a motion on what we would opt back into, including the European arrest warrant, we now have one decision followed by another. I trust that the decision we have now on the block opt-out will be the same as the decision on an alternative vote referendum. I hope we will have learnt our lessons and that any decision on what, if anything, is in the national interest to opt back into is delayed, rather as our Liberal Democrat colleagues reconsidered what had been stated with respect to boundary changes.
I look forward to the debates in this House, the reports of the Select Committees, the legal issues, or the potential for judicial review that we discussed, and, I hope, consideration by the Prime Minister of where we have come to. Today we have an opinion poll that shows my party level with the Labour party. We have a party that is strongly united behind the Prime Minister’s agenda, as set out in his Bloomberg speech. With this block opt-out, we can keep that as long as we do not opt in to what I consider to be the most damaging to and undermining of the traditional liberties of the people of this country. I took great heart from what my hon. Friend the Member for Esher and Walton said: he said that he was going to consider carefully the merits of an opt-in to the European arrest warrant, and that he has strict and high hurdles for what assurances would be required even to consider that that could be in the national interest. I know that his views will be persuasive to many colleagues. Instead of making the decision today, we should decide just to opt out on a block basis and leave for some time after tomorrow—perhaps many months from now—the decision on what, if anything, to opt back into. I congratulate the Government on their revised approach.
Jacob Rees-Mogg (North East Somerset) (Con)
It is good news that the Government, in their wisdom, have acceded to amendment (b), tabled by the Liaison Committee Chairman, to water down the initial proposal. It is none the less worth reviewing the process of parliamentary scrutiny that this has gone through, because what we had thrown at us last Tuesday was deeply unsatisfactory. I would like to record that dissatisfaction, even though the movements that have been made since are admirable.
It is worth bearing in mind that on 14 December 2012, the Home Secretary and the Lord High Chancellor wrote to the Chairman of the European Scrutiny Committee to say:
“We would hope to be in a position to provide you with the first of the Explanatory Memoranda by early January and to have provided all necessary Explanatory Memoranda by the middle of February. We hope that this will be acceptable to you.”
There were delays, time goes by, and the Whitehall machine did not work with that efficient Rolls-Royce nature that it has been noted for historically. On 11 February 2013, the Home Secretary and the Lord High Chancellor wrote once again—these were becoming regular billets-doux between the Lord High Chancellor, the Home Secretary and my hon. Friend the Member for Stone (Mr Cash)—and on this occasion they said:
“Each of these Explanatory Memoranda will be made available to Parliament shortly, to help inform consideration.”
Now, I do not know what view right hon. and hon. Members would take of the word “shortly”. Time is an elastic concept, but it seems to me that “shortly” does not stretch from 11 February 2013 through to last Tuesday. At that point, the elastic had long since snapped. It was broken, and there was a feeling that the urgency that had once been promised had dissipated.
Jacob Rees-Mogg
The education at Stonyhurst of my hon. Friend is exquisitely fine. His quotations are better than mine, and I pay tribute to his ability to quote such fine words.
The elastic last Tuesday was firmly broken. Instead of having proper time for parliamentary scrutiny, and instead of having time when the Select Committees could do their work thoroughly and consider this matter of the greatest importance, we were told that what was going to happen was a vote today to agree to the Government’s position, with very little opportunity for any scrutiny at all. It is therefore hugely to be welcomed that the Government decided that that was not the right way to proceed, and that the views of Parliament, representing our constituents, were important in this matter to be able to see what was happening, to deliberate, to report, to take evidence and to decide what, if anything, it might be in the national interest to opt back into. While I am grateful that the opportunity for parliamentary scrutiny has improved, it was really quite extraordinary that last Tuesday we were in such a situation as to have been denied parliamentary scrutiny almost altogether. There is some praise now, but it came from a position of dispraise before.
We have heard the most wonderful, glorious line repeated by a number of speakers that this is a most noble repatriation of powers: that never before in the history of the European Union have powers been repatriated to a nation state and that previously it has been a one-way street. The power has gone out: it has left the United Kingdom and gone to our friends in Brussels, but on this occasion there was a noble fight. Horatius was on the bridge standing there fending off the massed hoards coming from Europe to impose their will on brave little Blighty, and happily 98 powers have been restored to this great country. And the ones that are being given back? Well, they have them anyway, so why are we worrying about that at all? [Interruption.] My hon. Friend the Member for Stone is saying that I am leading up to a quotation. No, I am not; I am leading up to the detail.
This may be rather boring, and one might think speeches in this House unaccustomed to delving into such matters as detail. I hope that under, I think, Standing Order No. 42, this will be neither repetitious nor tedious—well, it may be tedious, but it will not be repetitious, because nobody else has mentioned the detail—but I should like to go through some of the items that we are opting out off, the repatriation of powers that we are getting.
Jacob Rees-Mogg
I am very sympathetic to the view that my hon. Friend is expressing. The view of the Government is otherwise, but when the 2011 Act was being debated it was made clear that these matters can be settled by judicial review. If there is a continuing uncertainty, that is a sensible route to go down once we know what issues will be opted into.
Mr Cash
The very thought of a judicial review in the name of Rees-Mogg invokes memories of the greatest of all the cases on the Maastricht treaty, in which my hon. Friend’s own dear late father was the plaintiff. Perhaps my hon. Friend would be good enough to take up the cudgels in his own right.
Jacob Rees-Mogg
I am grateful to my hon. Friend for reminding me of the activities of my late noble kinsman, who did indeed bring an action on the Maastricht treaty, supported by the late kinsman of my hon. Friend the Member for Richmond Park (Zac Goldsmith), who was the backer of that great venture. It may be that we can fight on where our fathers once fought, with the continuing help of my hon. Friend, the seemingly immortal hon. Member for Stone.
Jacob Rees-Mogg
I thought the hon. Gentleman was going to refer to the geese that saved Rome and divert us with a bit of cackling of geese, but it was not that in the end.
Let me return to the exciting detail of where we are restoring powers. The first example that I shall regale you with, Madam Deputy Speaker, is the Council act of 3 December 1998, laying down the staff regulations applicable to Europol employees. I think that staff regulations are very important and noble, but I hardly see that as a fine repatriation of powers. There are lots of other examples—I will not go through them all, because time is short and there are far too many.
However, there are eight decisions relating to classified information. If hon. Members are willing to return to the analysis by the Government, they will see that of those eight, all of which are being opted out of, the Government say:
“To our knowledge only small quantities of classified information are currently shared with third countries under these agreements. If the UK decided not to participate in the agreement, we would continue to be able to exchange UK classified data directly with any third country.”
Therefore, eight of the 98 powers that we are repatriating are so trivial that we have not used them and, crucially, the point has been made that we could do that by agreement with the third countries individually and get exactly the same benefits. Indeed, one of the classified information-sharing deals refers to Croatia before it was a member of the European Union, so that one falls automatically, even if it were useful. I am therefore agreeing, to my horror—and probably equally to her horror—with the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), the shadow Home Secretary, who made the point about the triviality of some of these matters. They are really not very important.
The Schengen measures that we are pulling out of relate to the accession of member states to Schengen, which is hardly still relevant. Those measures include—oh, this is glorious—a council decision made on 18 September 2008 on the test of the second-generation Schengen information system, to which we are no longer committed. That is a serious repatriation of power!
I was thinking of the ancient types, making a comparison to Horatius on the bridge, but it is not Horatius; it is more like Sisyphus, perhaps in both senses of the man. The rock was pushed up to the top of the hill, and he tried to get it over the top, but straight it rolled back down again. To use a cricketing metaphor—which is appropriate in the middle of an Ashes test series—the degree of spin required to say that we are seeing the repatriation of power reminds me only of that famous ball bowled by Shane Warne, when he was first visiting England, when he removed Mike Gatting. It spun so much, so far that it went down in history as one of the great balls in cricket. Even Tich Freeman at his peak, when he got 305 wickets in a season, did not bowl so much spin as this Government are bowling. Even Jim Laker in 1956 was not spinning away so much when he got 19 wickets in Manchester against the Australians, for there is no real repatriation of powers.
Unfortunately, there are two sides of most ledgers. When we look at the powers that it is intended to opt back into, we see rather the reverse. To go into more of this tedious detail, which I know hon. Members find somewhat soporific, the first area—the biggest and most important—is the arrest warrant. We have heard from the Home Secretary about how the arrest warrant will be placed under strict controls. She even mentioned that there will be some limits on the joint recognition of offences, but that will not be decided by our courts or our Parliament. Instead, it will be decided by a foreign court, by foreign judges, and it will be subject to the agreement that has already been made in Brussels.
Mr Cash
My hon. Friend, who is almost always right on matters of substance, might reflect on the fact that, as I mentioned earlier, the words “judicial authority” in this context were severely criticised by the European Scrutiny Committee, and there is no guarantee that a court or a judge would be involved.
Jacob Rees-Mogg
That is an important point, and we should all learn off by heart the 2001 report by the European Scrutiny Committee, I seem to remember it was—
Jacob Rees-Mogg
Where I part company with the Government is in believing that it would not be better to make these adjustments in the current structure, rather than under the new structure, and to negotiate to maintain the current structure with our European partners, because as it currently stands, if we change the law, that is the law of the land. Once we have opted in, it is not: the law of the land is subject to the European Court of Justice.
Then there is the issue of double criminality. The European Commission’s website, in explaining how the arrest warrant works, says quite clearly:
“If they are punishable in the issuing Member State by a custodial sentence of at least three years, the following offences”—
which are then listed—
“may give rise to surrender without verification of the double criminality of the act”.
Therefore, although we may pass a law saying that double criminality is a requirement before we extradite somebody, the rule of Brussels is not so. Now, in the situation we are currently in, our law is superior, but then their law will be superior.
Jacob Rees-Mogg
This is always a complex area. I have never thought that any Briton could ever suffer from xenophobia, because no Briton has ever been frightened of any foreigner.
I should like to continue a little on the detail and look at item No. 48, which is the Council framework decision on the European Union orders freezing property or evidence. Therefore, we are potentially going to give to the European Court and the European Commission rights to freeze the property of British subjects. Item No. 59 deals with the mutual recognition of financial penalties. “Mutual recognition” is the most dangerous part of the agreement on justice and home affairs.
Jacob Rees-Mogg
I do not think that is quite it, because I think the process is subject to a Title V opt-out. Therefore, if any of those issues are recast, we then have to decide whether to opt into the recast decision, but the decision we have opted into will be a permanent part of the acquis communautaire and we will therefore be bound by it, even if it is recast.
There are a couple of other measures that are being maintained that it is important to mention, because the surrender of powers is so significant. They include the mutual recognition of confiscation orders, which is similar to the property issue. Then there are measures dealing with the enhancing of procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. Therefore, we are going to give mutual recognition to trials that are held without the person accused being present, which I have always thought a potentially highly unjust way of proceeding.
We should be deeply concerned about the proposals to opt back in, because of the lack of sovereignty we will then have over those essential measures. In these important areas—mutual recognition, the arrest warrant, trials without the person present and many others—we are handing over to the European Court the ability to decide whether our procedures are good enough or whether they have to be changed to meet European requirements.
Mr Cash
I know my hon. Friend has heard this before, but does he accept that, for all the examples that could be given to demonstrate that the European arrest warrant is sometimes convenient and suits the case of those in favour of it, there are many examples that demonstrate absolutely massive deprivations of justice for those people caught up in the EAW who are most unfairly treated by it?
Jacob Rees-Mogg
That is certainly the case, but I have sympathy with the Government wanting to have an arrest warrant that works. I think that is a rational and sensible view for the Government to take, but I think that they should go about it in a different way.
The European Union took legal personality at Lisbon. The EU makes deals as the EU with the United States, Korea and Singapore in the free trade area, but it has not yet been tested whether the EU can use its legal personality to make deals with member states of the EU—but that does not mean that it cannot be tried. It would be a sensible thing to do by treaty obligation not within the European treaties, but by separate treaty obligation.
It seems to me that the Government are taking the path of least resistance, which requires a surrender of sovereignty. That surrender of sovereignty is clearly in contradiction of the coalition agreement, which says that there will be no further surrender of powers to the EU. It seems to me, too, that the status quo is the opt-out and not the opt back in. Why? Because the status quo is that these issues are not justiciable in the European Court of Justice, and justice—and the fount of justice—is the essence of sovereignty. Why is Her Majesty sovereign? She is sovereign because she is the fount of justice in this country. When we hand justice over, so we hand sovereignty over—and so the move in sovereignty by making things justiciable in front of the European Court is a major change and different in kind from the opting out, which retains the powers in the United Kingdom.
I am hugely encouraged that the Government have listened so much and have been willing to move so much in a correct way to have proper parliamentary oversight. I am confident that at least the Conservatives in this Government have the wisdom and the ability to negotiate what is in the best interests of the United Kingdom and not to go down the path of least resistance. We need to maintain sovereignty here. We need to have agreements that represent our interests but are not subject to the power of a foreign court that is unaccountable to our electorate.
Chris Bryant
The great thing about the hon. Gentleman is that he sometimes achieves that to which he does not even aspire—and on this occasion he did precisely that.
Let me start with what we all agree about. International criminals co-operate; they commit crimes in many different countries; they travel and they can commit crimes in one country from another country; and they try to get away with it. Crime does not stop at the channel, which is why co-operation on justice and home affairs across the European Union is a vital part of ensuring national security in the modern era. It is why I think Members of all parties have long supported the position of leadership that the British Government have taken in trying to improve these standards across the whole EU.
We also agree, I hope, that it makes sense to review that co-operation. That is precisely why Labour secured an opt-out—the one we are talking about using at the moment—in the first place. It is a Labour opt-out available to a coalition Government. I therefore suggest that the question before us now is really fairly simple. Is this motion right—the original Government motion, notwithstanding the intervention that the Justice Secretary was forced to make earlier when he suggested that he might accept an amendment that has not even been moved—is it necessary, and is it necessary now? Let me start with the “necessary now” question.
I suggest to hon. Members that we have heard no argument to say why the Government want this vote today. They signalled months ago that they were provisionally minded to opt out—fair enough—but their decision to seek to opt in to any measures, let alone the measures listed in the Command Paper, was announced less than a week ago. The Select Committees have been clamouring for more information for months, as has already been said by three of the Select Committee Chairs, begging for a list of potential opt-ins so that they could look at the matters in hand. They asked for explanatory memorandums and never received them. True, there were briefings to the media, particularly to The Daily Telegraph, but not to the Committees about how the Government saw each of these measures. The Government expected the House to endorse opting out and opting in, including the precise list of measures, without a single word of evidence from any outside body being taken by any Committee of this or the other House.
Chris Bryant
Far be it for me to suggest that the hon. Gentleman is a mendicant in these matters, but he certainly sought this many times. If that is not the definition of begging, I am not sure what is.
Then, of course, we had the bizarre event last Thursday afternoon, which was the classic kick-bollock scramble school of parliamentary drafting that this coalition has made standard practice when the Home Secretary first tabled a motion, then the Chairs of the Select Committees kicked up and tabled an amendment, but then at the very last minute the Home Secretary withdrew her motion and tabled another one, whereupon the Select Committee Chairs tabled another amendment. Now the Home Secretary has backed down on the amendment, which is her third position in a week—no Thatcher she, I would suggest, as we are certainly not going to get a “This Lady is not for turning” speech at the Tory party conference.
The end result of all that is a list cobbled together in a deal within the Government; the House given three days and no more to decide; and a motion tabled just one sitting day before the debate. Yet the Justice Secretary himself—he has been opting in and opting out of this debate; more opting out than opting in, I note—said on 19 March this year to the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith):
“I can give my right hon. Friend, and indeed the House, a clear assurance that this Government will go further than any Government in ensuring that the House is involved in the decisions that are taken, and that as we reach agreement within the coalition on the way forward, we will need fully to engage Parliament, his Committee and, indeed, all the Committees with a vested interest in the matter”.—[Official Report, 19 March 2013; Vol. 560, c. 782.]
[Interruption.] I hear some rumblings over there, but the honest truth is that none of the Select Committees has been impressed by the way in which the Government have conducted themselves. Indeed, to be precise, the hon. Member for Stone (Mr Cash) said that this was a classic case of “scrutiny gone wrong”.
Let us be clear: these are complex matters that need to be addressed. The Command Paper is one of the most impenetrable set of explanatory memorandums that I have ever encountered—[Interruption.] I have read it and understood it, but I am not sure that the Justice Secretary has either read it or understood it. Some of what he says in his own explanatory memorandum is self-contradictory.
Chris Bryant
Yes, but the Lords Select Committee makes exactly the same condemnation of the Government’s process as all the House of Commons Committees and it reached the same conclusion, which I will come on to. I would argue that scrutiny is important and is not quite as simple as some Members have suggested. The process of opting back in is complex in itself, but as Commissioner Reding said earlier this year, one measure sometimes impacts on another. Whether or not the Government choose eventually to seek to opt into the precise set of measures that they listed in the Command Paper, their choice will not necessarily be deliverable.
As I have said, the Command Paper is pretty impenetrable, but it makes some pretty bold assertions. On child pornography, it states:
“If the UK were to exercise the opt-out and decide not to rejoin this measure, there would be little practical impact”.
Is that true? Can we not at least test it in Committee—or, for that matter, test the Government’s assertions on the investigation and prosecution of genocide, crimes against humanity and war crimes? [Interruption.] I can hear what the Home Secretary is saying. She must bear in mind that what we are discussing now is not the amendment that has been accepted, but her motion. That is all that is on the table at the moment.
Should we not also be able to test the Command Paper’s assertion on the European arrest warrant? I should have thought that the hon. Member for Esher and Walton (Mr Raab) and many others would want to do that. According to the paper,
“If the UK were to decide not to participate in this measure, we believe the UK would revert to the ECE”
—that is, the European convention on extradition. It continues that
“work would need to be taken bilaterally, but there is no guarantee this would be possible where Constitutional barriers exist.”
As the hon. Member for Belfast East (Naomi Long) pointed out, an important process of negotiation must be undertaken with the devolved Administrations in Northern Ireland in particular—because of the relationship with the Republic of Ireland—and in Scotland to ensure that there are no unintended consequences.
Let me now turn to whether the motion is necessary. It is absolutely clear that it is not necessary for discussions to take place with the Commission and with other member states. Indeed, the Government told the Commission in no uncertain terms that even if a motion in this House or in another place were voted down, they would reserve to themselves the right to proceed with the process of opting out. It is true that protocol 36 —which was mentioned by the hon. Member for Stone —sets out a formal process, but we all know that the process that will actually be engaged in will be complex and political, and that there will be plenty of “behind doors” conversations.
What concerns me is that without indications about the opt-ins and without knowing whether we will be able to secure them at the same time as the opt-outs, we cannot genuinely weigh the risk of opting out against what we stand to gain. That is why we tabled our amendment, on which we still intend to divide the House. The amendment does something very simple: it insists that we should have guarantees of what we can opt into before choosing formally to opt out.
The hon. Member for Stone said earlier that our idea was nonsensical, but where did we get it? It comes directly from the Command Paper, page 5 of which states that
“there is nothing preventing the Commission giving an immediate response, nor to agreement being reached informally ahead of the UK’s formal application.“
In other words, the motion is completely unnecessary, and potentially dangerous.
Chris Bryant
It always pains me to disagree with a man whom I love so much, but as the hon. Gentleman refused to return my phone calls at the end of last week, I must disagree with him on this one occasion. I think that there are genuine risks. This is what was said by the House of Lords Committee to which the hon. Member for Cheltenham (Martin Horwood) referred:
“On the basis of the evidence we have received we do not consider that the Government have made a convincing case for exercising the opt-out…Opting out of the police and criminal justice measures would have significant adverse negative repercussions for the internal security of the United Kingdom and the administration of criminal justice in the United Kingdom.”
That is a high hurdle for us to overcome if we are to move forward.
The Lord Chancellor and Secretary of State for Justice (Chris Grayling)
The hon. Member for Rhondda (Chris Bryant) talks a good talk, but this evening, as usual, it was mostly nonsense. I have not changed my views in the slightest. Indeed, today’s debate is about not handing powers to the European Court of Justice in particular, and about acting in the United Kingdom’s national interest.
Let us consider the background to the debate. Five years ago, the Labour party let this country down. It let us down in the debates about the Lisbon treaty, a treaty that I personally think was thoroughly bad for this country. It promised us a referendum, and then whipped its members through the Lobbies to vote against one. It promised us that the charter of fundamental rights would have no legal force, and then voted to give it legal force. Members will recall the unedifying episode in which the former Prime Minister was so committed to the Lisbon treaty that he had signed that he would not even turn up for the official event to mark its signing, and was smuggled in a few hours later under cover of darkness to sign when no one was looking. That is the truth of the Labour party’s approach to this whole issue.
I am clear about the fact that the Lisbon treaty paves the way for the creation of a European justice system. That system is now taking shape. A raft of new measures is emerging from Brussels, and the recent addition of a new justice scorecard creates a platform that will enable more to follow soon.
My right hon. Friend the Member for Wokingham (Mr Redwood) and many others were right to say that the jurisdiction of the European Court of Justice was a key element. The treaty extends the Court’s jurisdiction to justice and home affairs measures. In December 2014, the Court will take over the supervision of more than 130 measures agreed before the Lisbon treaty, which affect the administration of justice and the fight against crime in this country. Labour Members knew that, which is why they kicked the can down the road. It is why they put off the decision, and why they negotiated the opt-out from those 130-odd measures at some point in the future. I suppose that we should give them some credit at least for creating circumstances in which this Government have the option to decide what to do on behalf of the country, and this Parliament has the option to decide. That decision now resides on this side of the House, and we do not lack the determination or the will to do the right thing for the British people.
I have still not worked out what Labour Members think. They seemed both to oppose and support the opt-out. [Interruption.] Members say that I was not here, but where is the shadow Justice Secretary? The Opposition have had to put up a junior shadow Minister.
Tonight, we are seeking Parliament’s backing for the exercise of the get-out clause that the last Government put in place. The Lisbon treaty allows the UK two freedoms. The first is to opt in or out of any new measures the Commission brings forward, so we now only participate in new measures that are in the national interest. The second is to opt out of the policing and criminal justice measures in existence before the Lisbon treaty. Tonight’s vote is about whether this country takes up that second opt-out—nothing more, nothing less. If we do nothing, in December 2014 the ECJ will take over the ultimate supervision of every one of those more than 130 measures which affect the administration of justice and the fight against crime in this country.
My hon. Friend the Member for Rochester and Strood (Mark Reckless) set out some of the issues that transition would bring. I do not think that transfer should happen and that we should see all those 130-plus measures simply pass to the ECJ. Again, Labour could not decide at the time what it wanted to do, and it cannot decide again tonight. The lesson is that the Labour party was defeated at the last election because it was no longer fit for government, and it is now so indecisive and so uncertain that, frankly, it is barely fit to be in opposition.
So let me restate clearly to it what tonight’s vote is all about. This vote starts a process. The Government have reached a settled view that we do not want to participate in all the 130-plus measures. We do not want to be part of a European justice system, but we do want to be part of the fight against international crime. We do not want courts across Europe to be told by Brussels the minimum standards that should apply to the sentences they impose. We do not want matters that should be resolved by member states to be legislated for at a European level. We want to bring powers in those areas back to the UK.
We are clear that we must exercise this opt-out or face being subject to all those measures anyway. We have decided we do not want to follow a path that leads to a European justice system. Tonight’s vote, and the vote due to take place in the House of Lords next week, will, I hope, back our judgment and exercise that opt-out.
What happens then? The Government have taken a decision in principle that it will be in the interests of the UK to join a number of measures that involve international co-operation in fighting serious and organised crime. These measures set in place the mechanisms for intelligence- sharing between enforcement agencies in fighting that battle.
Mr Cash
On whether the Government will continue to seek to rejoin, would the Secretary of State take the view that it was not appropriate to do so if the evidence taken in the scrutiny process by the three Committees led to the conclusion that that was not in the interests of the United Kingdom?
Chris Grayling
What I can say to my hon. Friend is that, as he and the other Select Committee Chairmen would expect, we will look very carefully at the conclusions they draw and we will bring these matters back to the House for a further vote. He would expect nothing less than that.
There are measures, such as the prisoner transfer agreement, that are very much in the interests of this country. I personally want to see Hungarian prisoners back in Hungarian jails as quickly as possible, but as my hon. Friend the Member for Cambridge (Dr Huppert) rightly said, we should have mechanisms to ensure our police forces can work together and share information when they need to.
Treaty on the Functioning of the EU
William Cash Excerpts(11 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mrs May
The right hon. Lady referred to a motion tabled by the Opposition in an Opposition day debate, and identified seven measures that she said it was necessary to rejoin. What about measures such as the European supervision order or those to do with removing criminals’ assets? Are those powers not important as well? They are on our list, but they were not on that of the right hon. Lady.
Finally, I failed to hear in the right hon. Lady’s comments whether those on the Labour party Front Bench support the decision to opt out—a decision available only because her Government negotiated it in the first place. We believe it is absolutely right to exercise that opt-out, and to negotiate and rejoin those measures that are important for cross-border operations and co-operation between our police forces. Labour Members may come to the House and the right hon. Lady may stand up, foam at the mouth and rant at the Government about these measures, but it is high time she put her position on the line and made clear what her party will do in the debate next week.
Mr William Cash (Stone) (Con)
My right hon. Friend’s statement simply aggravates concerns that the European Scrutiny Committee has expressed since her October statement. Why has the Committee been consistently denied the information and consultation that it, the Justice Committee and the Home Affairs Committee were promised? We have been given neither proper time nor opportunity to consider these matters. We shall be meeting tomorrow and considering those questions in line with Standing Orders, and we shall then decide what action to take.
Mrs May
We brought the proposals forward now because it is right that we have time to negotiate with the European Commission. As I indicated in my statement, there will be further opportunity for the House to consider the list of measures that we negotiate with the European Commission. I say to my hon. Friend and to other right hon. and hon. Members who chair the Committees to which he referred that the total list of measures has been available for those Committees to consider for some considerable time. The Government are indicating today which measures we wish to seek to rejoin. There will be a debate next week in the House and an opportunity to vote on that. As I have indicated, there will be further consideration and a vote at a later stage.
EU Police, Justice and Home Affairs
William Cash Excerpts(11 years, 6 months ago)
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Yvette Cooper
It is indeed possible for there to be a huge number of extradition agreements that take long periods to negotiate. Let me give the hon. Lady one example. Before we had the European arrest warrant—when we simply had separately negotiated extradition arrangements—it took 10 years to extradite a suspected terrorist from Britain to France. That is the consequence of the kind of haphazard framework that the hon. Lady wants us to adopt. Meanwhile, we have a European arrest warrant that allows decisions to be made swiftly, and to be made in the interests of the victims of crime.
Yvette Cooper
I certainly cannot resist the temptation to give way to the hon. Gentleman.
Mr Cash
The right hon. Lady may recall several cases in which British citizens have been caught up in arrest warrants, including one in Staffordshire, where someone was found guilty in absentia and given a monumentally long prison sentence although he was not remotely connected with the murder concerned. There are serious questions to be asked about whether the judiciary, as it is described, is actually run by politicians in certain cases.
Yvette Cooper
The hon. Gentleman has made an important point. When the European Union Committee in the House of Lords was considering precisely these issues, and discussing cases in which there had been allegations of injustice, it commented:
“these arose from the consequences of extradition, including long periods of pre-trial detention in poor prison conditions, which could occur under any alternative system of extradition. Relying upon alternative extradition arrangements is highly unlikely to address the criticisms directed at the EAW and would inevitably render the extradition process more protracted and cumbersome, potentially undermining public safety.”
Abu Qatada
William Cash Excerpts(12 years, 1 month ago)
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Mrs May
The shadow Home Secretary made a number of points, some of which, I have to say, were either wrong or irrelevant to what we have heard today. She seems to be trying to argue that the Government have not been doing enough to deport Abu Qatada. I can assure her and the whole House that, if it was the case that this was one of those situations where it was just a question of a decision by the Home Secretary, Abu Qatada would have been on the plane on 12 May 2010. However, it is not that simple and we have to work in accordance with the ruling of the courts.
The work that we have undertaken with the Jordanians, which she referred to and seemed to brush to one side as if it was nothing, is unprecedented. The security Minister visited Jordan; I visited Jordan; and the Prime Minister has raised the issue with the King of Jordan. We have secured information and assurances that I still maintain should enable us to deport Qatada. Although the right hon. Lady was dismissive of those assurances, I will remind her, as I said in my statement, of what Mr Justice Mitting said about them. He said that the Jordanian Government
“will do everything within their power to ensure a retrial is fair.”
He continued:
“The Jordanian judiciary, like their executive counterparts, are determined to ensure that the appellant will receive, and be seen to receive, a fair retrial.”
SIAC stated that
“if the only question which we had to answer was whether or not, in a general sense, the appellant would be subjected to a flagrantly unfair retrial in Jordan, our unhesitating answer would be that he would not.”
The right hon. Lady asked whether we will continue our negotiations with the Jordanians. We are very grateful for the significant assurances the Jordanian Government have already provided. Of course, our work with the Jordanians will continue in the light of today’s judgment. The Jordanian Government put out a statement earlier today, which said:
“We understand there will be an appeal and accordingly we will work with them”—
that is, the UK Government—
“to be able to bring him back to justice here in Jordan. Concerning the fear of a fair trial for him—there were guarantees for the British government on that, but also our constitution and our judicial system guarantees him that.”
I am grateful to the Jordanian Government for that support.
The right hon. Lady raised the issue of bail conditions. Abu Qatada will be subject to a 16-hour curfew. Other conditions will be determined by the court and announced tomorrow. I believe that a 16-hour curfew is as strict as the strictest of control orders, so I am afraid that what she says is not the case, and she needs to look at that issue again.
The right hon. Lady referred to the new test and to the relative merits of the article 3 and article 6 issues. Those are different matters: Governments have for a long time been able to seek assurances about article 3 —that process is mature and has existed for many years—whereas the need for assurances about article 6 emerged only because of the European Court’s unprecedented judgment early this year.
The right hon. Lady asked whether it would have been better had we referred the case to the Grand Chamber of the European Court. On that, she is wrong. Her argument seems to be that the European Court—the very court that has caused this difficulty by setting up a new barrier to deportation—is the solution to the problem. Not only is that palpably ridiculous, but an appeal to the Grand Chamber would have risked our wider deportation policies—[Interruption.] I suggest that she listens to this point. An appeal would also have made it harder to deport further terrorists, had we lost the appeal. It would have been unwise, as well as fruitless.
In April, and again today, the shadow Home Secretary told the House:
“We all want Abu Qatada deported as soon as possible, under the rule of law”.—[Official Report, 19 April 2012; Vol. 543, c. 508.]
Unless she is prepared to break the rule of law, she has no solutions other than what the Government have already done. I suggest that, instead of trying to score a political hit, she supports the Government, is straight with the public and supports us in what we are doing to deport Abu Qatada.
Mr William Cash (Stone) (Con)
The Home Secretary will recall that she has herself urged the repeal of the Human Rights Act 1998. In the light of these events, is it not now time to get on with this urgently? In that way, we will be able to protect not only the public from the likes of Abu Qatada but those alleged terrorists who deserve a fair trial. Let us give them a fair trial, legislate in this country and work out our own answers to these questions, rather than leaving it to the Strasbourg Court.
Mrs May
I am tempted to refer my hon. Friend to the answer I gave on this issue in my last statement on human rights, because I am afraid that I am not going to depart from the answers I have given him in the past. I have made clear my position on the Human Rights Act. Work is being done on it, including by the commission looking at the possibility of a British Bill of Rights in line with our human rights requirements. That commission will report in due course. On the operation of the European Court, as he knows, we have already taken steps to ensure that the Court focuses on the complex points of law that it was originally set up to address, instead of becoming just a court of appeal in so many cases.
European Convention on Human Rights
William Cash Excerpts(12 years, 6 months ago)
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Mrs May
The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.
Mrs May
The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House
“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
Mr Cash
I am much encouraged by the line the Home Secretary is taking on all this. Over and over again, as she knows, I have raised the question of the interpretation by the courts of matters relating not only to the European convention but to European Union law. Is she taking the opportunity, by one means or another, to have discussions with those in the superior hierarchy of the judiciary? To bolster the assumptions that lie behind what she is saying in defence of the sovereignty of this Parliament, does she want to put the words “notwithstanding the Human Rights Act 1998” in front of the legislation so that the courts are under no misapprehension about what they are to do?
Mrs May
I think my answer to my hon. Friend will be shorter than his question. The motion makes it absolutely clear what we are asking people to do today and I am certain that the judiciary will take into account the view of Parliament. Indeed, as I have said, members of the judiciary have suggested that it would be helpful to have the view of Parliament.
Since the Human Rights Act was implemented in 2000, it has become clear that the existing immigration rules do not properly set out how article 8 should be qualified in real cases. As a result, foreign criminals and those who failed to meet the requirements of the immigration rules and who should not be allowed to come to or stay in the UK have increasingly been able to challenge their decisions in the courts on the grounds of a breach of article 8. So, for those who do not meet the requirements of the rules, grants of discretionary leave outside the rules on article 8 grounds have risen steadily to the point that in 2010 the UK Border Agency granted discretionary leave on the basis of article 8 in around 9,500 immigration cases. That means that in 9,500 cases, applicants could not meet the requirements of the immigration rules but were allowed to stay in the UK none the less. In addition, reflecting established policy on dealing with such cases, they were automatically granted full and immediate access to the benefits system. Perversely, that placed them in a better position than applicants who had met the immigration rules and were denied such access while they served a two-year probationary period.
Yvette Cooper
My hon. Friend makes an important point, because the Joint Committee on Human Rights does important work. The status of the motion is unclear, because we do not know exactly how the Home Secretary expects it to operate. For example, we know that the new immigration rules affecting foreign criminals, which were set out last week, explicitly refer to how article 8 should be addressed. We believe that is legitimate, but other immigration rules do not make such reference. The rules on foreign criminals also allow the courts to consider exceptional cases, but the process remains deeply unsatisfactory and confused. The Home Secretary has said that she wants to send clear signals to the courts, but she is not sending clear signals to the House.
Mr Cash
Is the Home Secretary aware of the series of speeches made by the Lord Chief Justice to the Judicial Studies Board and others? He has made it abundantly clear that in his opinion the judiciary, including the senior judiciary, have given far too much attention to the Strasbourg precedents and not enough to what he describes as the “golden thread” of the English common law. He says that it is therefore essential that we get this right and do not engage in generalised waffle about the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. The hon. Gentleman has had two interventions that have taken up speaking time. I am sure he would not want to do that, in case he wants to catch my eye later.
Mr Jack Straw (Blackburn) (Lab)
The hon. Member for Canterbury (Mr Brazier) has just said that he wants the House to discuss the wider issues of immigration, and I entirely agree with him. The immigration rule changes, to which the motion refers in a coda, go much wider than simply the interpretation of article 8 in respect of the deportation of foreign criminals. I would say, parenthetically, to the Home Secretary that while I support many of the other changes, I remain concerned about some of them, not least the removal of the right of appeal in family visit cases, which I introduced in the late 1990s. That measure has worked well and fairly, and in my experience it has led to abuse in very few cases. I therefore support the motion before the House in the context in which it has been brought forward—namely, to deal with the problem of the deportation of foreign national criminals.
The particular case that got me heavily involved in this matter as a constituency MP was the death in a motor accident of young Amy Houston. She was walking with her brother in Newfield drive in my constituency when a vehicle driven by an asylum seeker, Mr Mohammed Ibrahim, knocked her down and killed her, although she was alive for six hours after the event. He drove off without stopping or giving up any details. Amy’s bereaved father, Paul Houston, lives in the constituency of my hon. Friend the Member for Hyndburn (Graham Jones), who will give the House many more details of the case.
That asylum seeker, an Iraqi Kurd, was convicted of a series of offences arising from the accident. He had no driving qualifications, he was driving while disqualified and uninsured, and driving without a valid test certificate. Subsequently, he was cautioned by the police for the possession of cannabis and for burglary and theft. He was again convicted of driving while disqualified and uninsured, and, six years after the accident, convicted of the offences of harassment, damage to property and theft, for which he was fined. In 2008, he was also arrested and fined £200 for offences arising from a dispute with the woman he subsequently claimed to have married. I shall call her Mrs Smith, as there are children involved and I have no wish to involve them.
That man’s rights of appeal were completely exhausted, and he was due to be sent back. When the matter went to appeal—at Mr Houston’s behest and mine—to an immigration judge, one of the points that the judge regarded as acting in the man’s favour was the fact that the Home Office had made no effort to deport him between 2002, when his right to remain here was exhausted, and 2006. That was because it would not have been safe to deport Mr Ibrahim to Iraq at that time, for reasons of which everybody was aware. Notwithstanding that, it was decided that the relationship he had formed with Mrs Smith, by whom he had had two children, was sufficient to justify a family life entitlement under article 8.
I have to say—I and my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) looked at this—that the evidence of a successful family life was very flimsy indeed. There was total confusion in the court about whether the two had been married and where the marriage had taken place—in Blackburn or Birmingham. Those two places are different and separated by well over 100 miles. There was dispute about the date. On her own admission, Mrs Smith visited this man only once during the nine months in which he was detained as an immigration detainee.
At the behest of my right hon. Friend, the former Home Secretary, there was a further appeal. We had hoped that the courts would use this as a test case to change the law in the direction that the current Home Secretary now rightly seeks. I regret to say that, sadly, that did not happen. As a result, I strongly believe that the only alternative, however imperfect, is to bring forward this motion and try to get a change in the approach of the courts.
I want to apologise to you, Mr Deputy Speaker, to the Home Secretary and to the House, because I have to leave shortly before 6 o’clock. I also apologise to the Minister for Immigration, as I shall not be in my place to hear his winding-up speech—unusually, in my case.
In saying all this, I make no criticism of the judiciary who dealt with these cases. One thing I learned from much contact with the senior judiciary is that precisely because the system rightly sees itself as subordinate to Parliament but does its best to interpret Parliament’s will, the courts sometimes get caught by precedent. As senior members of the judiciary sometimes told me in respect of other cases, unless there is an appeal that really hits the spot, which they can then sort out, the only remaining course is sometimes for Parliament to seek to clarify the law.
Mr Cash
I am most grateful. In dealing with the critical question of proportionality, which is what arises in these cases when a balance needs to be struck by the courts either way, does the right hon. Gentleman agree that, in the absence of very express provision, it will be impossible to fetter the court’s discretion—even with a steer from the wording—in the determination? The evidence is that individual judges will tend to continue to make their own judgment, whatever Parliament seeks to say.
Mr Straw
I am afraid that I do not accept that. A feature of our courts is that they are, quite properly, very conscious of the need to apply the law as they believe Parliament has laid it down. I am confident—I cannot be certain—that, had this proposed approach been passed by Parliament and if necessary enshrined in legislation, the courts would have been able to exercise their judgment on proportionality in a way that showed proper respect to the Houston family and to that poor child rather than to Mr Ibrahim and the woman with whom, in my judgment, he formed a relationship solely in order to evade immigration control and deportation.
John McDonnell
Let me finish the point I was making, which is that this is an object lesson in how not to go about influencing others, and certainly not the courts. The immigration rules’ legislative proposals were published only a week ago, and there are 45 pages of amendments to what is an even more detailed document. I ask Members who have read all that material to put up their hand. For the benefit of Hansard, I note that one Member has raised their arm—or perhaps two.
Mr Cash
As an assiduous reader of these documents, may I mention that the Journal Office has advised that the use of an approval motion for such rules is normally subject to negative procedure, although that is not taking place in this instance, and the contention that Parliament’s view is subject to review by the courts is also surprising in the context of article 9 of the Bill of Rights? The Clerks have clearly therefore taken on board some serious points regarding the procedure that is being followed.
John McDonnell
I heard those points when they were made previously, and the House of Commons Library note provided to us describes this as an unusual process—I put it no stronger than that. We are having this debate only a matter of days after having received the detailed and complex documents to which I referred, and I simply do not understand the reason for this haste.
Moreover, the first section of the motion is a statement of the obvious; article 8 is, indeed, a qualified right. It then tries to inveigle us into a commitment to support the immigration rules that we received only a few days ago, and which have not been debated. That is an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.
We would welcome a wider debate. I know this might sound unusual, but, frankly, I want to consult my constituents on the matter. I want to understand their concerns about these new rules. My anxiety is that we are now entering a political phase. During some Members’ speeches, certain other Members were suggesting, “Well, vote against the motion.” I want nothing to do with this motion, but they were shouting and bearding people about voting against the motion—[Interruption.] I do not think the hon. Member for Crewe and Nantwich (Mr Timpson) has been in the Chamber since the beginning of the debate, has he?
John McDonnell
I apologise and withdraw that comment, therefore, but there were definitely shouts of, “Well, vote against it.” Such behaviour draws us into the realm of political knockabout, when we should be having a considered debate about the legislative proposals, and what that results in is clear to anybody who has seen the Daily Telegraph campaign currently being waged, in which it is naming judges and publishing their performance in individual trials. It is saying how many people those judges have deported over the last period. This is taking the form of a witch hunt, therefore, and it is an unacceptable attempt to influence the judiciary. I agree with the hon. Member for Keighley (Kris Hopkins) that there needs to be an honest debate about immigration, but to drag things down into a political knockabout on how to vote on a motion that is irrelevant in respect of any legislation is unacceptable and clouds the atmosphere in this House, and thereby undermines its ability to influence any law court or judge.
The procedure the Government have introduced today completely undermines the credibility of the House on this matter. We need to get back to the normal processes of legislation. We need to ensure Members have the necessary information well in advance of any debate, rather than having it in the curtailed time scale that we have experienced on this occasion—and that is particularly important in this instance, as the matter under discussion is very complex, and very sensitive as well. The full procedures of the House should be followed, including referring the matter for consideration by the relevant Committees of the House which will then report back, and giving Members the time to consult their constituents and then to come to a considered view and arrive at a decision on a vote. That vote may well prove to be unanimous, because people will feel they have been fully involved. No court can interpret this current process as expressing the definitive will of the House, however, because many Members will have not a clue what we are voting on as the information has been provided so late.
Mr Cash
I just wonder whether the hon. Gentleman noticed that the Home Secretary referred to the fact that as yet nobody has placed a prayer of annulment to the immigration rules. I understand the rules were introduced into the House only on 13 June. I therefore suspect that, in the event of such a prayer being put, he has the option—and the right—to call for a vote on the substance of the rules.
John McDonnell
That is exactly the point I was about to make. It is important that Members take their responsibilities seriously and that the motion is prayed against. That will enable us to go through the due process of this House, so we can arrive at a decision that Members will feel party to, and that then will have some substance and significance in influencing future judgments in the courts—taking into account, of course, the separation of powers.
Today’s debate is almost a waste of time. It will be looked on as an embarrassment to the House. If we want to improve the standing of MPs and the Houses of Parliament within our community, this is not the route we should be pursuing. I therefore want nothing to do with this motion. I want my position recorded very clearly. I oppose the motion and I wish to get back to a process of legislating whereby every Member feels fully involved—and involved in a process that is serious and significant, not trite as in this instance.
Mr Raab
The right hon. Gentleman makes a very important point. He crystallises things cogently, but in this case there were no dependants, so what he says does not apply. This is an interesting case. There are many examples where someone has committed a vicious, violent crime—it might be murder or, as in some cases, a sexual offence—has had a child in the meantime and has coerced members of the family, putting them under duress, so that they give evidence, which this person has then relied on to stay in this country. I challenge the view that it is always in the best interests of a child to be with a father of such character and background, but it is very difficult for a court to make that determination when they have evidence in front of them.
I shall discuss one case, which is the most skewed and perverse that I have come across. There are reporting restrictions on it, so I shall be careful about talking about some of the details. It involves an individual raping his partner and then claiming that relationship as part of the family life that he relied on to stay in this country. Many people would regard that as both legally unsustainable and morally perverse.
This is not just about the deportation of foreign criminals; it is about the shifting goalposts of article 8. It is very important to understand that the state of the law now—that static snapshot—is not the sole issue; it reflects years of development. My worry is about the direction in which things are headed. I worry that it will be increasingly impossible to apply border controls, be they in relation to the deportation of foreign national criminals or to other aspects of coalition policy, including cracking down on things such as forced marriage, increasing language requirements or dealing with sham student visas and bogus colleges. All those things will come later because the goalposts will keep shifting. That is a real danger for this Government and for future Governments.
Mr Cash
In his excellent, extremely well researched and powerful speech, my hon. Friend has not yet referred to the manner in which section 6 of the Human Rights Act 1998 impinges on this question. When I was shadow Attorney-General and I invoked our party to repeal the Human Rights Act as part of our policy, it became the policy up to and including the general election. Does he agree that nothing will stop the courts striking down immigration rules as a disproportionate violation of article 8 if they decide to do so?
Mr Raab
I thank my hon. Friend for his intervention. If he is patient, he will find that I will come on to deal with exactly that point, but I wish to avoid duplication at this moment.
I shall now deal with the points made by the shadow Home Secretary. She clearly knows little of the history of this problem or has conveniently forgotten it, so let me remind the House that this problem has been created by the Human Rights Act that her Government introduced. In fairness, there is an additional element to this, because the previous Prime Minister at least recognised that there was a problem. The House may recall his barnstorming 2007 conference speech in Bournemouth. His biggest cheer came when he vowed, all misty eyed, that
“any newcomer to Britain who is caught selling drugs or using guns will be thrown out. No-one who sells drugs to our children or uses guns has the right to stay in our country.”
As a result, we got changes, including the UK Borders Act 2007, to which the shadow Home Secretary referred. Section 32 of that Act deals with the deportation of foreign national criminals—so far, so good. However, by including an express reference to the Human Rights Act in section 33—something that was totally unnecessary and a matter of political choice—the previous Prime Minister, far from strengthening our capacity to deport, fatally weakened our capacity to deport. Ultimately—this is the point that my hon. Friend the Member for Stone (Mr Cash) is making—primary legislation trumps the Human Rights Act, but not if that Act is expressly written into the relevant statute. That may sound like a technical point, but it is crucial to understanding what went wrong with the 2007 Act. The former Prime Minister emasculated his own deportation law, and that speaks volumes about the expediency with which Labour has approached this debate. I believe that the shadow Home Secretary will be a bit less pious about this issue and will perhaps eat a little more humble pie before the House—I am sure that the shadow Immigration Minister will do so. [Interruption.] We live in hope.
I welcome the changes and the motion, but there are questions about whether the changes to the guidance and a mere resolution of this House can deliver the reform we need. I put that precise question to the Lord Chief Justice in November, when he appeared before the Joint Committee on Human Rights. He made it clear that without primary legislation the courts would probably not rein in the expansion and application of article 8 in deportation cases. So I would be grateful if the Minister said what the Government will do if these changes are not fully effective, as at least Government Members hope they will be. Does he agree that if we cannot stop the rot, we will need a new UK borders Act to deal with this issue clearly, categorically, once and for all? It is vital that we can measure the success of the proposed changes we are debating today. Will he ensure that the Home Office now records the number of deportation cases frustrated on human rights grounds, with a breakdown in respect of articles 3, 6 and 8—the main offenders—so that we can measure, see and scrutinise whether this problem gets better or worse as a result of the changes being introduced? The Home Office has not routinely recorded those data. The Immigration Minister went out of his way to ensure that it produced a single quarterly snapshot in 2011—I welcome that and commend him for it—but can he reassure us that that information will be routinely recorded from now on?
Human rights reform is contentious and it needs to take place on three levels: reform of the Strasbourg court; replacement of the Human Rights Act with a British Bill of Rights; and UK legislation to strengthen our border controls.
For my part—others might feel differently—I recognise that our coalition partners are sensitive about the Human Rights Act. I accept that we are unlikely to see the reform that I would like to see in this Parliament and I have already made clear my commitment to the absolute prohibition on torture. I cannot understand, however, why anyone except the lawyers, non-governmental organisations and academics who have made an industry out of human rights would die in a ditch to stop the deportation of serious criminals because it might disrupt their family, social or private ties. To me, as I have said, that suggests a skewed moral compass, not just legal chaos for our border controls.
The changes we need require primary legislation, but we do not have to touch the Human Rights Act to solve this specific problem. It can be done by statutory amendment. I hope that the proposals before us today will tackle the problem—they have my full support—but, if they do not, I hope that all parties will agree to consider very seriously the case for amending the UK Borders Act. We need to draw a line in the sand, to restore democratic control over the criteria for deportation, to stop the ever-expanding list of legal excuses used by some of the worst criminals to stay in this country, to protect the public and, above all, to restore their confidence in British justice. We will do that only by injecting a healthy dose of common sense back into the increasingly perverse application of our human rights law.
Pete Wishart (Perth and North Perthshire) (SNP)
Sometimes, I do not know why we bother. We all turn up for these debates. All those who take an interest in home affairs and issues such as human rights are here, and you are here in your finery, Mr Deputy Speaker. We have heard a very confused speech from the Conservative Secretary of State and we have heard from Labour Members, ever compliant on human rights and home affairs. We have not heard from the Liberals; I do not know whether we will, but I would be interested to hear what they have to say. We are all here, but we are all more or less wasting our time. Why not just get on with it and get The Daily Telegraph, along with the Daily Mail, to conduct our immigration policy? That is what we are getting, with immigration rules that are practically out of The Daily Telegraph’s leader column.
What an absolute farce this afternoon has been. What on earth are we debating? I do not have a clue. We have had three different explanations from the Government about what we are being asked to consider. We are asked to consider that article 8 is a qualified right. Yes, that is a restatement of the bleeding obvious, as I said earlier, and we all know that. We are then asked to support the Government’s immigration rules. Does that mean the immigration rules in their totality, as the Home Secretary said when I intervened, or part of them? Or are we just giving a direction to the judges? I have absolutely no clue whatsoever what we are being asked to consider this evening. It is a total waste of time and a farce. As the hon. Member for Hayes and Harlington (John McDonnell) says, we need a proper process to consider this very important subject—and it is important.
Pete Wishart
I do not know whether the hon. Gentleman is being helpful, but that seems to be another interpretation. When he sums up, the Minister for Immigration must tell us exactly what we are voting on this evening, because I do not know. I cannot support the immigration rules in their totality, so if the Government are saying that we have to accept them tonight, I unfortunately cannot support them and will press the matter to a Division. We cannot accept the rules as they stand. This is a very important debate condensed to four hours and a lot of nonsense.
Jeremy Corbyn
I am sorry to disappoint the hon. Gentleman, but I cannot help him by describing what the Liberal Democrats are doing today, because I am not responsible for them. However, having been involved in a lot of human rights, anti-terrorism and immigration debates over the many years I have been in Parliament, I know that there are different allies in different Parliaments. Sometimes there are Conservatives one agrees with, sometimes there are Liberals one agrees with, and sometimes there is nobody one agrees with, but that’s life, and we plough on.
Mr Cash
The hon. Gentleman makes a good point, because he and I have agreed on several matters, including the Chagos islanders. May I offer him the thought that absence of the Liberal Democrats may have something to do with the lack of clarity in the motion? If it was as clearly expressed as I would like, notwithstanding the Human Rights Act and all that goes with it, I rather suspect that there might be some difficulty for those on the Liberal Democrat Benches, because they would want it to be less clear than I would.
Jeremy Corbyn
I thank the hon. Gentleman for his intervention. I respect him for standing up for his principles and acknowledge that he and I have agreed on quite a lot of occasions, particularly on the disgraceful treatment of the Chagos islands by all Governments over very many years. We hope that the European Court of Human Rights, which is now hearing that case, will come to a good judgment, which we expect imminently.
When I intervened on the hon. Member for Esher and Walton (Mr Raab) about the torture and ill-treatment of people in other jurisdictions, he did not agree with me, and that is fair enough; he does not have to. However, he should understand that the European convention was a very important step in improving human rights standards around the world. The principle of a continent-wide human rights court has been copied to some extent on other continents—for example, central America has such a court. The idea of an international convention such as the United Nations convention against torture is a very powerful one. That is why I disagreed so very strongly with Tony Blair, when he was Prime Minister, on his agreeing to the deportation of people to jurisdictions that had not signed the international convention on torture. That undermined the convention, damaged the human rights of the individual, and damaged us as a country that is supposed to stand up for human rights and justice.
I cannot really describe what we are debating today, and I do not think that the Home Secretary can either. I look forward to a full debate on her proposed immigration rules, because some of them will have a devastating effect on the family life of very poor people in this country who have migrated here, work hard, clean our floors, look after our children, drive our trains, and help our industries to get along. We should also remember that immigration in this country has helped to create our relatively high standards of living. It does the House no credit when people condemn all immigration as an economic problem. Immigration is an economic benefit to our society, and it is about time we publicly recognised that.
Mr William Cash (Stone) (Con)
I agree with what the hon. Member for Islington North (Jeremy Corbyn) said about some of the benefits of economic immigration, but there is something else that I would like to put on the record. As many of us know, the best way to keep a secret is to make a speech in the House of Commons. I sincerely hope that that does not apply to the speeches that I have heard today—particularly, if I may say so without any disrespect to Opposition Members, those by my hon. Friends the Members for Esher and Walton (Mr Raab), who made a superbly forensic speech, and for Witham (Priti Patel), and my hon. and learned Friend the Member for Torridge and West Devon (Mr Cox).
Although my remarks will not necessarily be entirely consonant with wholehearted support for these proposals, for reasons that I will explain, I still genuinely support the idea that it is important to give an indication of the Government’s views. A great deal of hard work has been put into this. The more I look at it, the more I realise that the Government’s advisers have really applied themselves to it. As we now know, the immigration rules were tabled on 13 June but have not yet been decided on by the House and will, I suspect, be subject to an annulment prayer because Labour Front Benchers will decide that that is what they want to do.
Irrespective of that general sense of support for these proposals, there is also a rather unfortunate element that was indicated in the excellent speech by my hon. and learned Friend. He said, using very carefully chosen words, that the proposals will create an impression or perception whereby, in some of the national tabloid press and elsewhere, they will be construed, as we have already read, as being simply about slamming criminals and unacceptable persons who should not be allowed in this country in the first place and should be deported. I think that that general perception has been conveyed and that, given that the best way to keep a secret is to make a speech in the House of Commons, the spin that is put on this will carry the day.
However, that will not affect the courts, which will make their own decisions. Moreover, the proposals are geared in the direction of indicating to the courts that the general will of Parliament is to move away from the free-for-all of applying Strasbourg precedents, and that Parliament is making a statement that must be had regard to. Indeed, in line with what I said in an intervention, that has been a matter of concern in the generality of judicial interpretation, which has been criticised by the Lord Chief Justice in a series of very measured speeches. On one occasion about two years ago, he strongly advised his brothers and sisters in the judicial profession in the High Court that the most important matter for a judge is to uphold the common law. I think that he said it in those terms. He went on to say that they had to be much more careful about not simply adopting Strasbourg precedents in the application of their judgments in English courts and, by implication, that they should have more regard to what Parliament has said.
This exercise is being conducted with great complexity. One only has to look at the new immigration rules, which I have in my hand, to notice that they contain strong gearing elements. Whether they will have any effect on certain members of the judiciary remains to be seen. Individual cases, some of which have been mentioned, raise difficult questions of family law and relationships. As has been said, we hear about such cases in our constituencies. I do not think that what we heard earlier was a rant. There is an important point here. I have been confronted by some difficult family issues in the field of immigration. We ought not to be dismissive of the importance of forming a proper and proportionate judgment about these questions.
Important questions have been raised in the debates in which I have taken part over the past few years on the interpretation of statute law. An example is the Jackson case, which was not to do with human rights in the same context as this matter, but was to do with interpretation by the judiciary. Tom Bingham, the late, lamented Lord Chief Justice, took to task two Law Lords in the Jackson case. He said not only in the judgment but in his speech that they were exceeding their role by asserting judicial supremacy over Parliament.
It is therefore essential that we pay tribute to the intentions that lie behind this exercise, while at the same time being clear that the proposals lack clarity. The intentions that lie behind this extremely careful operation will not necessarily produce the results that many people expect. Given the latitude that will still be conferred on judges and the rules of proportionality that have to be applied, I anticipate that there will be ructions down the line when the rules are applied by individual judges.
I suspect that the lack of clarity has something to do with the attitudes of some in government, some in the civil service and some in the higher reaches of the judiciary and in certain chambers, who have no doubt been consulted. It might also have some connection to the attitude that would have been adopted by the Liberal Democrats if they had been confronted with the kind of clarity that could be provided, but that certainly is not. I can do no more than speculate on that. When I pressed an amendment in the Lisbon treaty debates that stated, “notwithstanding the European Communities Act 1972”, on which 55 of my hon. Friends followed me into the Lobby with enthusiasm, despite the suggestions from the Whips that they should do no such thing, the Liberal Democrats said that if I had pressed the other amendment that I had tabled, which stated “notwithstanding the Human Rights Act 1998”, they would have supported it. I therefore ask whether we are always entirely clear as to what the Liberal Democrats are up to at any given point in time.
There is a further point regarding the motion, although I do not want to be too pedantic or legalistic. It states that article 8 is a “qualified right” and that
“the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
I hope that you will forgive me, Mr Deputy Speaker, for pointing out that as we are debating this matter today, on Tuesday 19 June, I construe those words to mean the immigration rules as they now are, not as they are anticipated to be under the proposals printed on 13 June.
On page 1 of the statement of changes, which I suspect will be debated, there is a provision titled “Implementation”, which states that, with the exception of an awful lot of paragraphs,
“the changes set out in this Statement shall take effect on 9 July 2012.”
The other paragraphs
“shall take effect on 1 October 2012.”
It goes on to say:
“However, if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.”
Therefore, the new immigration rules will not, I am glad to say, have retrospective effect. The implication of the wording in the motion might not be as clear as it should be. That leaves us with the reasonable position that the motion relates only to the immigration rules that are in force at this time. That is a technical point.
I regard the proposals as a steer. The Government are hoping that they will succeed and I wish them well if it is possible for them to do so. However, I think that there will be difficulties of interpretation. The harder the case, the more likely it is that an individual judge will say, “I am not bound by this motion. I am bound by what the law says.” The law that they are construing, from 9 July and 1 October 2012, will be the new rules.
The explanatory memorandum states:
“The new Immigration Rules provide a clear basis for considering family and private life cases in compliance with Article 8. To accompany the new rules, a statement of ECHR compatibility is being published on the Home Office website”.
It goes on to say, although I doubt whether this can be taken for granted:
“The new Immigration Rules will reform the approach taken as a matter of public policy towards ECHR Article 8…in immigration cases.”
It goes on to say—the distinguished Immigration Minister is sitting on the Front Bench and knows this backwards:
“The Immigration Rules will fully reflect the factors which can weigh for or against an Article 8 claim. The rules will set proportionate requirements that reflect the Government’s and Parliament’s view of how individuals’ Article 8 rights should be qualified in the public interest to safeguard the economic well-being of the UK by controlling immigration and to protect the public from foreign criminals. This will mean that failure to meet the requirements of the rules will normally mean failure to establish an Article 8 claim to enter or remain in the UK, and no grant of leave on that basis. Outside exceptional cases, it will be proportionate under Article 8 for an applicant who fails to meet the requirements of the rules to be removed from the UK.”
Why have I bothered to read all that out? So far, none of it has been mentioned in the debate, but it is what we are actually debating. It is about whether the courts will be steered by Parliament and apply its decisions—hopefully the right decisions—as a matter of proportionality.
As a number of Members have said, article 8 already provides a qualified right. As ever, I am afraid that the qualification simply has not been explained. Article 8 states:
“There shall be no interference by a public authority with the exercise of this right”—
and then the crucial words, which the shadow Home Secretary conveniently left out—
“except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The words
“except such as is in accordance with the law and is necessary in a democratic society”
prompt the very question that we have to debate. Until I hear the Minister’s reply, I have to say that we are doing so without any confidence that “the law” means the law of this Parliament.
In the democratic society in which we in this country live, those words must mean the law passed in this Parliament. In certain instances, that will exclude decisions taken by the judges in Strasbourg and/or principles adumbrated in Strasbourg but applied in our courts that are contrary to the views expressed by, for example, the Lord Chief Justice. In the context of article 8, it would be nonsense if “the law” meant anything other than the law of the United Kingdom.
We have to resolve that question in the interests of Parliament, which will decide how this country is to be governed. We must decide whether it is to be governed under the European convention on human rights. I believe that we should withdraw from the convention altogether, because we have been continuously besieged by interpretations of it that are contrary to the views expressed by the people of this country as a whole. We can perfectly well legislate to protect human rights, which I would be the first to defend, by passing appropriate laws in our own land according to our own wishes. Many of those laws may well be parallel, if not identical, to those passed under the convention and the Human Rights Act.
The reason I called for the repeal of the Act 10 years ago, when I was shadow Attorney-General, was precisely because of the mess that we are now in. I hesitate to say so, but I anticipated that we would be in this position, as I did over the Maastricht treaty. By keeping ahead of the curve, whether on the convention or the issue of Europe as a whole, we would have saved ourselves a great deal of trouble. We would have defended Parliament’s right to legislate on behalf of the people of this country, who in a democratic society have a right to govern themselves. That is the central principle at the heart of our Parliament. The debate raises questions about that matter but does not entirely resolve them.
I do not say that the courts should in any way be inhibited from making a decision based on their interpretation of the law. However, the law is made here. We have to decide what the law is, and it behoves us to make that law clear. In this case it could have been made clearer by our simply saying, “Notwithstanding the European convention on human rights and the Human Rights Act 1998, we legislate for these immigration rules accordingly.” There would have been absolutely no argument about that in the courts, because the courts would have had to say, “We have no option but to administer the law as laid down by Parliament.” That is the crucial issue at the heart of this debate.
Although I will support the general steer that we are providing, I am afraid that there may yet be difficulties and ructions further down the line, with the courts taking disconsonant decisions that are contrary to the intentions behind the rules, which are supposed to represent a clear basis but do not.
Chris Bryant
I see; otherwise, I would have thought that it was a rather tautological name for a constituency.
My hon. Friend is absolutely right: many of our constituents, in many different parts of this country—in Wales, just as in Scotland and England—have significant concerns about matters relating to the deportation of foreign criminals, and they want them addressed better in the criminal justice system.
I always enjoy listening to the hon. and learned Member for Torridge and West Devon (Mr Cox), not least because I see him as a very successful barrister, and I am aware that there is a convention in this House that if an hon. Member were to ask another Member who practises at the Bar to represent them in court, that Member would be required to provide their services, free, gratis and for nothing. I therefore look forward to him representing me one day in some action, free, gratis and for nothing. [Interruption.] I think he is mouthing something at me, but I am not quite sure what it is. I know that he was seeking to be helpful to the Government and to support the direction of travel in which they are moving, but I noted that he said, “I do not hold out an enormous amount of hope.” I think he was referring to whether this proposal is going to be a successful manoeuvre, which is partly our concern as well. It is not a concern about the direction of travel, but a concern about whether this measure is precisely the right way in which to steer ourselves in that direction of travel.
The hon. Member for Stone (Mr Cash) is one of my favourite Members, because I have debated with him so many times—and he also told me once that he loved me, so I cannot dislike him. He referred to the application of the rules of the European Court’s decisions in relation to the courts in the United Kingdom. He, too, said that whether the decisions we make today will have any effect remains to be seen. I say that—and I think he said it, too—not out of a desire to undermine where we want to go, but to ensure that we securely get change in the direction to which many hon. Members have referred.
My hon. Friend the Member for Wigan (Lisa Nandy) made a moving speech about some of the experiences that she has had personally and in dealing with her constituents. In particular, she mentioned the situation facing many women and children. We would do ourselves a disservice if we were to pretend that the European convention on human rights had done nothing to protect the sorely abused rights of women around the world. In many cases, it has acted as a beacon for what a decent society should look like and how a decent society should go about its business.
The hon. Member for Strangford (Jim Shannon) said that he thought that there would be no Division on the motion. I thought that he might have been having a dig at the hon. and learned Member for Torridge and West Devon when he said that everything goes wrong when lawyers get involved. He was also critical of some of the judges in the European Court of Human Rights because they sometimes did not have the level of qualifications or the amount of experience that we would expect of a British judge. I am certain of the need for reform of the way in which the judges are appointed and the way in which the Court does its business and comes to its decisions, but that is not a reason for us to leave the European Court or to abandon the convention, not least—I might not be able to carry the hon. Gentleman with me on this—because it is a requirement of membership of the European Union that we should be a signatory and adhere to the Court.
The hon. Member for Ipswich (Ben Gummer), who has just fled the Chamber, made a tiny intervention on the hon. Member for Strangford, in which he pointed out the difference between the European Union, the European Court and the European convention on human rights. He was absolutely right to say that that difference was often not recognised.
The Home Secretary made several issues crystal clear in her speech. First, she made it clear that Pepper v. Hart was right, and that it is absolutely right for the courts to bear in mind what is said by a Minister or in a debate in the House of Commons—or, for that matter, the House of Lords—when legislation is ambiguous and the court is uncertain of how to proceed, without breaching article IX of the Bill of Rights, which states that a court is not able to question or impeach a proceeding in Parliament.
Mr Cash
In regard to interpretation, certainly in the field of European law—whether in the European Court of Justice or the European Court of Human Rights—the travaux préparatoires, as they are called, include all sorts of explanatory memorandums and so on. So when we talk about a clear basis, the question is whether it will stand up in due course. I hope that it will, but I am not sure.
Chris Bryant
I am not entirely sure whether I agree with that, so I am afraid that I am going to gloss over it. Perhaps the hon. Gentleman will give me a better lecture on the matter later.
We agreed with the Home Secretary’s point on Pepper v. Hart. We also agreed when she effectively said that she accepted the judgment in the Pankina case of 2010 that the mere tabling of new immigration rules is often not enough to provide legal or political clarity to the courts. We agree with that, which is why we would wholeheartedly welcome a debate in Parliament on these matters. There are those who would say that the process that the hon. and learned Member for Torridge and West Devon referred to earlier has been inadequate in the past.
The Home Secretary also referred to changes in the operation of article 8 in relation to the deportation of prisoners. Again, we completely agree with the direction of travel that she is taking and with what she is trying to do. In a sense, that is what we tried to do in 2007 with the changes in the law, but we accept that further work needs to be done. She said specifically that foreign criminals had used flimsy human rights arguments to remain in this country, and we agree. She said that the broader issue of the other changes, tabled last Wednesday, was a separate issue. We wholeheartedly agree with that, too.
We have some concerns about the process, but I do not want to overstate them. The motion expressly refers to “the Immigration Rules”. It therefore stands to reason that we are debating the rules that are in force today, rather than any that have been tabled but will not come into force until 9 July and could, in theory, be annulled in the future. So I am not sure that this motion provides quite the level of legal clarity that the Home Secretary would like.
Furthermore, there is the question of exactly how much influence a motion of the House has. We have already heard from the shadow Home Secretary about the ruling from the Clerks on that point. A few weeks ago, a motion of the House, which was agreed unanimously, stated that nobody wanting to come to this country from Russia should be allowed a visa if they had had anything to do with the death of Sergei Magnitsky. That motion has no force in law, however; it is just an interesting statement from the House of Commons. It has not been agreed by the House of Lords, and it has not gone through any kind of primary or secondary legislative process.
It might have been better if the measures had been taken in a different order, with the full set of rule changes being followed by the motion that we are considering today. Indeed, many hon. Members have said that there might well be a need for primary legislation to provide the courts with the absolute clarity that they need.
I want to make it absolutely clear that we are supporting the motion today on the understanding that it applies solely to the operation of article 8 in relation to the deportation of foreign criminals. In the words of the Home Secretary, the rest is a “separate issue”.
Abu Qatada
William Cash Excerpts(12 years, 8 months ago)
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Mrs May
I repeat to the right hon. Gentleman what I said in response to an earlier question. The arbiters of whether a request for a referral put in by Abu Qatada should be accepted—whether in response to a deadline or, as we believe, outside the deadline—or whether discretion should be applied to accept it outside the deadline are not a north London firm of lawyers but the five judges who will be sitting on the panel of the Grand Chamber of the European Court.
Mr William Cash (Stone) (Con)
The Home Secretary is trying her best—there is no question about that—but unfortunately it is not working. The root causes of this problem are the questions of what the rule of law is, whose rule of law is applicable and who interprets it. Those questions should be decided in this House. We should withdraw from the European convention, repeal the Human Rights Act 1998 and get the matter straight because the people of this country demand it.
Mrs May
I thank my hon. Friend for his question, which I think is fairly similar to previous questions that he has asked me on this issue. Let me assure him that I take this issue extremely seriously and I am absolutely clear that we want to deport Abu Qatada. However, I also made it absolutely clear in the House earlier this week that the Government must operate within the rule of law, and that a number of legal avenues would be available to Abu Qatada. It is no surprise that he is using delaying tactics to try to delay his deportation from this country. It is right to say that we need to reform the European Court of Human Rights, and that is exactly the work that is being undertaken by my right hon. and learned Friends the Justice Secretary—I think I inadvertently referred to him earlier as the shadow Justice Secretary; I beg his pardon—and the Attorney-General.
Abu Qatada
William Cash Excerpts(12 years, 8 months ago)
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Mrs May
May I first say that I welcome the support the shadow Home Secretary has given to the resumption of deportation and to the work that has been done to receive assurances from the Jordanian Government? A number of the points she made in response to my statement were made in her press release yesterday, but I recognise that she received my statement late. Although I covered a number of her questions in my statement, I will respond to the points she has made.
The right hon. Lady asked whether the SIAC proceedings this afternoon were properly applied for. Of course they were, but I am sure she will understand that when we are moving to arrest an individual whom we intend to deport, there is a limit to the number of people we tell before we move.
The right hon. Lady seemed to suggest that the Government had done nothing about the Strasbourg ruling until the bail hearing a few weeks later, and quoted Mr Justice Mitting, the judge at the bail hearing. The quote she gave made clear that negotiations with the Jordanians had already begun at the time of the bail hearing. I know she is always keen to attack, but her arguments might have a little more strength if they did not contradict each other.
The right hon. Lady asked about my estimated timetable for Abu Qatada’s deportation. As I said in my statement, we have resumed deportation against him and he was arrested earlier today. He has the right to appeal to SIAC, and I understand that he or his lawyers have made it clear that he intends to appeal and to ask for revocation of the deportation, possibly beyond SIAC—there are rights of appeal beyond SIAC. Because any appeal will be based on narrow grounds and because of the quality of the assurances we have, I am confident of our eventual success, but the process could take a number of months. I have been clear about that and said it in my statement.
The right hon. Lady appears to misunderstand the process. She says that we are going back to the beginning. In fact, we are resuming the deportation, which was set to one side during the appeals that went through to the European Court. She asked why we were not referring the case to the Grand Chamber. Again, I covered that in my statement. I said absolutely clearly that referring to the Grand Chamber would open up the whole of the judgment set down by the court on 17 January, part of which was positive for us. We have looked at the issues involved and taken the decision that the appropriate and right course of action that will ensure we can deport Abu Qatada is to follow the action we have taken of gaining assurances from the Jordanian Government and resuming the deportation.
The right hon. Lady asked about the length of time it is taking to deport Abu Qatada. May I remind her that deportation proceedings began in 2001, nine years before the end of the Government of whom she was a member? The time it is taking to deport Abu Qatada is not down to political will, but down to the nature of our legal system. As I said in my statement, I am willing and keen to look at how other European countries deport dangerous foreign nationals quickly, which is something that the last Government never did. We are following what I believe to be the right course of action to ensure that we can deport Abu Qatada. I have been clear in my statement—and I am willing to repeat it—that I believe that Abu Qatada should be in custody. That is why we arrested him this morning, have taken him to SIAC and are asking for his detention. The work that we have done has resulted in assurances from the Jordanian Government that I believe will enable us to deport Abu Qatada. That is what the whole of this House should want: Abu Qatada deported from this country, back to Jordan.
Mr William Cash (Stone) (Con)
Having made a powerful statement in favour of the deportation of Abu Qatada, will the Home Secretary confirm that at the Brighton conference, which begins tomorrow, it will be made clear that, as far as the United Kingdom is concerned, a British Bill of Rights will be determined by legislation passed in this House, and not based on the European convention on—but increasingly against—human rights?
Mrs May
My hon. Friend is right to refer to the Brighton conference, which starts tomorrow. It will be chaired by my right hon. and learned Friend the Justice Secretary, who has been working with the other 46 members of the Council of Europe to do what I believe we all want, which is to ensure that the European Court operates appropriately and in a way that reflects its original intentions. The Prime Minister made a speech earlier this year in which he made it clear that there were a number of issues that we wanted to look at, such as subsidiarity and the efficiency of the European Court. It is those matters which the Brighton conference will be discussing.
Abu Qatada
William Cash Excerpts(12 years, 10 months ago)
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Mrs May
The right hon. Gentleman has raised several issues in his supplementary questions, some of which relate to the approach that Justice Mitting might take in certain circumstances, but obviously it is not for me to indicate what approach the judge would take. However, were assurances received from the Jordanian Government—we are working hard on that—obviously that would change the scenario and, by introducing a new factor, would enable the Government to take action that would, I think, change SIAC’s approach. If any case were to go before it again, though, it would be for it to determine.
The right hon. Gentleman referred to the work being done on the ECHR. As he will be aware, because of our chairmanship of the Council of Europe, we are in a position for six months to take action on this matter, and we are working actively with other countries with a similar interest in ensuring that the European Court acts as originally intended, which is as a Court considering the most serious issues and key points of human rights law, rather than as a body to which people automatically appeal once they have gone through national courts. That work is being actively led by my right hon. and learned Friend the Secretary of State for Justice. Furthermore, as I mentioned, the Prime Minister has been to Strasbourg, spoken on these matters and explained our position.
The right hon. Gentleman mentioned TPIMs and bail, but of course they are two separate matters—one should not conflate the two. The Home Office made vigorous representations to SIAC arguing that Abu Qatada should not be released on bail, but that were it to happen, the most stringent conditions should be applied. As I said, these are among the most stringent conditions applied to anybody we are currently unable to deport from the UK.
As the right hon. Gentleman said at the end, it is absolutely right that in this country we do not have indefinite detention without trial. However, everyone on both sides of the House wants to ensure that we can deport those who represent a danger to the United Kingdom and whom we believe should be deported. That is why we are considering our options within the legal process, and why we are negotiating with Jordanians on further assurances in order to deport Abu Qatada. However, it is also why we are working to make the changes in the European Court to which the right hon. Gentleman referred, and looking at the whole issue of assurances with other countries, to ensure that we strengthen our ability to deport people who are a danger to us.
Mr William Cash (Stone) (Con)
The Home Secretary has made a robust statement; the Prime Minister has made robust statements. Unfortunately, the declaration that she made some months ago—that we would repeal the Human Rights Act—is the remedy. I would like to know, and I would be grateful if the Home Secretary would say, whether she intends to carry through our commitment—her own statement that she would repeal the Human Rights Act—return the remedy to this House and pass the legislation necessary to get this right; otherwise it will be all talk and no action.
Mrs May
I have been used, over time in my political life, to words that I have said being taken slightly out of context. I said that it was my personal view that the Human Rights Act should be repealed, not that I was about to repeal it—which my hon. Friend sort of implied in his question. I would simply remind him that even if we were to repeal the Human Rights Act, we would of course still be subject to the European convention and the European Court.
Protection of Freedoms Bill
William Cash Excerpts(13 years, 2 months ago)
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James Brokenshire
I think that is right. In many ways it is why the Government have taken the approach that we have. Ultimately, it would be for the House to decide whether the circumstances justified the introduction of the emergency legislation. That is an important protection, and represents the underlying distinction in the Government’s approach.
Hon. and right hon. Members who sat on the Public Bill Committee will recall that we had extensive debates in Committee on what the maximum period should be, in what circumstances the Government might seek to extend that period, and what kind of contingency mechanism they might employ to extend the maximum period. As I said then, the Government have prepared draft fast-track legislation, which at the time was subject to pre-legislative scrutiny. The Joint Committee undertaking that scrutiny reported in June, and I am grateful to Lord Armstrong of Illminster and the other members of the Committee for their careful consideration.
Mr William Cash (Stone) (Con)
Does the Minister believe that habeas corpus itself is in any way affected by the proposals before the House in the new clause, and does habeas corpus not, as Lord Steyn has said repeatedly, supervene against any other jurisdiction, provided that its operation is not excluded by statute?
James Brokenshire
I know that that is a particular concern for my hon. Friend, but we do not think that it is engaged in that way. I know that he has introduced a Bill previously on this subject, but the clear advice I have received is that the answer is no.
Although the Government still believe that fast-track legislation is the most appropriate contingency mechanism for increasing the maximum period of pre-charge detention, we recognise that, as the Committee pointed out, that approach would not be feasible during any period when Parliament was dissolved. No contingency mechanism will be perfect or able to meet all operational needs while at the same time satisfying every concern that Parliament and the public might have, but we recognised the point raised by the Committee about what would happen if Parliament were dissolved. New clause 13 has been introduced to address that specific concern.
I am aware that the Committee concluded that the Government’s intention to rely on fast-track legislation for other periods was not appropriate, citing potential problems with parliamentary debates and possible difficulties with recalling Parliament during a long recess. New clause 14, tabled by the right hon. Member for Wythenshawe and Sale East (Paul Goggins), attempts to deal with that issue by introducing an order-making power to increase the maximum period of pre-charge detention, which would be available when the Attorney-General certified that exceptional circumstances applied. The new clause also includes a number of proposed safeguards relating to that power, including retrospective parliamentary approval and a number of conditions that would have to be satisfied before a High Court judge could approve any individual applications for extended detention up to 28 days.
I very much welcome the continuation of the debates that the right hon. Gentleman and I have had over terrorism legislation, and many of the themes that come through in this debate were apparent in our debates on the Terrorism Prevention and Investigation Measures Bill, the enhanced regime and the provisions that it introduced. I think that it is right and proper that we have the debate on the issue in this Bill, particularly as the Joint Committee’s investigation related to the emergency draft legislation to which the Bill is in essence connected with regard to an increase from 14 to 28 days. However, we believe that the exceptional nature of these powers to extend the maximum period beyond 14 days means that, where feasible, the principle of 28- day detention should be debated and approved by Parliament.
In response to the Joint Committee’s report, the Home Secretary said:
“An order-making power of the type described in the Committee’s report”—
and in many ways reflected in the new clause that the right hon. Member for Wythenshawe and Sale East has tabled—
“would…not be a clear expression that the ‘normal’ maximum period of pre-charge detention should be no longer than 14 days.”
She went on to say:
“28 day detention is so exceptional that I continue to believe that Parliament should have the opportunity to debate the issue first, and that the most appropriate and effective way to do this is by using emergency primary legislation.”
Mr Cash
I am sure the Minister appreciates that he is treading a rather wobbly line, because clause 57 talks about a permanent reduction in the maximum detention period to 14 days, yet, during the rather special circumstances when Parliament is not sitting or has been dissolved, he is prepared to countenance the idea of an emergency arrangement that would produce 28 days. I happen to be in favour of more than 14 days, but is it not the case that, ultimately, the test should be what is in the interests of the security of the nation, and that, if it is good enough to extend 14 days to 28 in such circumstances, it should apply or could apply generally?
James Brokenshire
We come back to what I spoke about—the exceptional nature of the powers sought and the point that 14 days should be the norm. Through the new clause, we seek to address the very limited circumstances in which Parliament is not functioning, and we recognise and take on board the Joint Committee’s comments on that. In those circumstances, the Home Secretary and the Government need to be able to act in the national interest to ensure security. For that reason, the emergency order-making power in new clause 13 is limited to periods when the introduction of primary legislation would not be possible—that is, when Parliament is dissolved or before the first Queen’s Speech of the new Parliament.
As we set out in the Government’s response, published last week, to the Joint Committee’s report, we welcome two of the Committee’s further recommendations for increased safeguards, and we have included them in new clause 13. First, applications for any warrant of further detention that would see an individual detained for longer than 14 days may be made only with the personal consent of the Director of Public Prosecutions or the equivalent post holder in Scotland or Northern Ireland. Secondly, whenever an individual is detained for longer than 14 days, their case will be reviewed by the independent reviewer of terrorism legislation, or someone on their behalf, and a report of that review will be sent to the Secretary of State as soon as possible.
Both those changes will also be incorporated in the draft fast-track legislation to increase the maximum length of pre-charge detention to 28 days. New clause 13 and consequential amendments 79 and 80 ensure that there is an effective contingency mechanism for increasing the maximum period of pre-charge detention in the limited period during which Parliament is dissolved. It is right that we should continue to rely on fast-track primary legislation in all other circumstances. On that basis, I commend new clause 13 to the House.
Chris Bryant
New clause 14 makes clear some of the specifics involved. If the Government have things they think should be additional, that debate needs to be had. I suspect that this will not be the end of the matter in this House and that their lordships will want to look very closely at whether there is a better route to achieve the same end.
Nobody is trying to end up in a different place in this regard, but the process of emergency legislation that the Government are using is a mistake. In essence, they have already accepted the principle that there should, in exceptional circumstances, be an additional power. They have accepted that in relation to Dissolution and effectively said that it should be present at other times. The issue is simply about how we make sure that the Secretary of State, if he or she were to have that power, would then be circumscribed by Parliament and by other bodies. Undoubtedly, High Court judges and the Director of Public Prosecutions make decisions that do not allow the Secretary of State to act gratuitously. However, we prefer the route that new clause 14 lays out, and I hope that the Government will think again. I do not expect that we will want to divide the House on this matter, but I hope that their lordships will look at it again.
Mr Cash
I will speak briefly because I have already gone through this issue on a number of occasions.
I believe very strongly that if there is a case for extending the period from 14 to 28 days, the Government, by referring to the period in question as merely 14 days and describing it as a permanent reduction in clause 57, and then talking about certain circumstances of an emergency nature that extend it to 28 days, effectively sell the argument down the river. I am trying to look at the principle. In my opinion, 28 days is justified. We have been through the arguments, as the hon. Member for Walsall North (Mr Winnick) said, about whether it should be 42 days or 90 days. Fourteen days can be a very short period, so if there is a case for it being 28 days in certain circumstances, for heaven’s sake let us just accept that 28 days will be used very rarely and only in special circumstances.
Furthermore, to go back to a point that the Minister made, there is the distinct, continuing right of habeas corpus. If a judge thought that somebody was being ill-treated during a period of detention, which is really what this is all about, and he was satisfied by evidence from other sources and an application for habeas corpus, he would go straight down—in Belmarsh, for example, there is a tunnel—and ask to have the person who was being detained produced for him. He would rapidly work out whether that person was being subjected to unfair or unreasonable treatment—we are talking here about the realities of life—and whether he should be given the full benefit of habeas corpus. Habeas corpus means, “You shall have the body,” or, “You shall produce the person.” That, in my judgment, is ultimately what this is all about.
Paul Goggins
I have enough confidence in the current holder of that position to know that he would set aside his personal opinion and deal with the legislation as he saw fit. It is interesting. I am asked about the Attorney-General and I am often asked about the Home Secretary. It sometimes appears that Opposition Members have more confidence in the Attorney-General and the Home Secretary than some of their own colleagues, because we want them to have these powers to use when they are absolutely necessary. It is important to have that confidence.
The Secretary of State for the Home Department (Mrs Theresa May)
I beg to move, That the Bill be now read the Third time.
The first responsibility of any Government is to keep the British public safe and free. That means protecting them from crime, terrorism and other threats, but it also means defending our democratic institutions, our liberties and our way of life. This Government are determined to cut crime and reduce the risk of terrorism, at the same time as we restore the freedoms and liberties that define British society.
Mr Cash
I am grateful to the Home Secretary—and may I congratulate her on her staunch statement at the party conference on the repeal of the Human Rights Act? As she has not yet an opportunity to do so, would she like to reaffirm on the Floor of the House that she would like to see it repealed?
Mrs May
I am happy to confirm that to my hon. Friend. At the general election, Conservative Members, of course, stood on a manifesto that promised to do just that. As I have said, we will also bring forward some changes to the immigration rules to ensure what we consider to be the correct balance in the operation of article 8 of the human rights convention.
My hon. Friend the Member for Stone (Mr Cash) was trying to tempt me to go down a road that I know I should not go down any further on Third Reading of this Bill. Let me return to the point I was making about the balance between keeping the public safe and defending our liberties.
For 13 years the previous Administration chipped away at those freedoms and liberties, and in doing so, they did not protect the public. They chipped away at the notion that a person is innocent until proven guilty. Not only did they fail to take the DNA profiles of all of those guilty of a crime; they also provided for the indefinite retention of the DNA profiles of more than 1 million innocent people. They treated more than a quarter of the whole work force—some 11 million people—as potential abusers of children and vulnerable adults, by requiring them to be monitored as part of an overbearing vetting and barring system.
The previous Government chipped away at the right to liberty by seeking to extend the maximum period of pre-charge detention to 42 and even 90 days—until forced by the will of this Parliament to settle for 28 days. They then made 28 days the norm rather than the exception. They chipped away at the historic right of trial by jury; they chipped away at the notion that people should be able to live in safety and security in their own homes by creating hundreds of new powers of entry; and they chipped away at our right to privacy by creating a number of enormous Government databases—the national identity register and ContactPoint being but the worst examples.
The Bill continues the work of this Government in repairing the damage done to our traditional freedoms and historic civil liberties, while at the same time taking a careful and proportionate approach to protecting the public. In adopting the protections of the Scottish model for the national DNA database, it strikes the right balance between protecting our communities and protecting the rights of the innocent. When people are convicted or cautioned for a recordable offence, their DNA and fingerprints will be retained indefinitely, exactly as happens now. In all cases in which DNA and fingerprints are taken on arrest, they will be subject to a speculative search so that past offenders cannot evade justice, exactly as happens now. Under this Government, criminals who leave their DNA at a crime scene will not be able to escape justice if they are arrested again.
Moreover, we are now taking the DNA of all convicted prisoners, including hundreds who were convicted for the most serious offences such as murder and rape. That is something that the last Government failed to do. In June last year, we started a programme to identify individuals in the community who have previously been convicted of either a sexual offence or homicide, and whom the last Government failed to place on the DNA database. That process has so far identified more than 13,000 people whose identities have been passed to local police forces, and we are now working with the police to find the individuals and obtain samples. When someone is not convicted of an offence, however, there will be strict limits on the period during which that person’s DNA and fingerprints can be retained. That is exactly as it should be: justice is not served, and our communities are not made safer, by the stockpiling of the DNA and fingerprints of hundreds of thousands of innocent people for year after year.
The Bill includes sensible measures to help to maintain public confidence in the use of CCTV and automatic number plate recognition systems. CCTV is a valuable crime-fighting tool, which also helps to reduce the fear of crime—we saw that most recently after the summer’s riots—but it will not be able to continue to deliver such benefits if cameras are perceived to be spying on communities, or if they simply do not work as they should. We saw that most recently in the west midlands, where the installation of CCTV systems without the support of the local community meant that public confidence was lost and the cause of community safety was set back. By providing for a code of practice overseen by a new surveillance camera commissioner, the Bill will help to ensure that CCTV retains public support and therefore continues to be an effective tool in fighting crime.
The Bill also applies much-needed common sense to the criminal records regime and the vetting and barring scheme. Let me make one thing absolutely clear: the protection of children and vulnerable adults is of paramount importance to this Government, and robust systems for employment vetting play a vital part in ensuring that it is provided, but tying up employers and voluntary organisations in red tape and bureaucracy does no one any good. I do not think it is sensible to force some 11 million people to register with a Government agency, and I do not really think—and I doubt that the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) really thinks—that 11 million people should be continually monitored.
There was a real danger that the very scale of the vetting and barring scheme designed by the previous Administration would create a culture of irresponsibility in which employers felt that it was not up to them to protect children or vulnerable adults in their care. Employers must take their responsibilities seriously, and when innocent people are treated like suspects, it is society that suffers.
The Bill has been much improved by the process of scrutiny undertaken by this House. I thank all the members of the Public Bill Committee for their detailed and forensic examination of it, and I thank all Members who contributed to the debates on Report.
Public Disorder
William Cash Excerpts(13 years, 4 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mrs May
I pay tribute to the way in which the right hon. Lady has entered into the debate generally. Her constituency was particularly badly affected and is a particular example of criminal gangs operating on the streets in order to test and press the police. I will give the same answer to her in relation to police budgets as I gave earlier and as my right hon. Friend the Prime Minister gave to a number of Members who raised the issue. At the end of the spending review period, the police will have the numbers to enable them to deploy in the way they have during the last few days. It is possible to make cuts in police budgets by taking money out of matters such as better procurement to ensure that we can achieve the cuts that we need to make while still leaving police able to do the job that we want them to do and that they want to do.
In January 2011, the chief constable of Greater Manchester police, Peter Fahy, told the Home Affairs Committee:
“we have large numbers of officers still in roles that do not require the skills, the powers and expertise of a police officer. It is through that route over the next four years where we will achieve quite a bit of savings.”
Mr William Cash (Stone) (Con)
I congratulate my right hon. Friend on the emphasis that she is putting on the gang culture, which the Prime Minister himself referred to when he said that it was a culture that glorifies violence and says everything about rights but nothing about responsibilities. Does she agree that the legal restraints that are placed upon, for example, the police, social services, teachers and parents, in imposing discipline in the home, in school or elsewhere, directly derive from a number of legal constraints that come from, for example, the Human Rights Act 1998, which needs to be repealed? We cannot deal with the culture and with the question of rights and responsibilities unless we deal with one of the root causes, which is this idea that people can do anything and get away with it.
Mrs May
We are taking steps to deal with the culture, and one example is that my right hon. Friend the Secretary of State for Education is taking steps to ensure that we restore discipline in our schools. My hon. Friend refers to the Human Rights Act, which was referred to during questions to the Prime Minister, and my hon. Friend is well aware that we are looking at the issue both through the Bill of Rights commission that has been set up by the Ministry of Justice and my right hon. and learned Friend the Justice Secretary and work that we are doing with the ECHR.