Immigration Bill

Debate between Yasmin Qureshi and Jacob Rees-Mogg

Thursday 30th January 2014 Commons Chamber

[Jacob Rees-Mogg]

I am grateful to my hon. Friend for his helpful clarification. The problem is that deportation is part of the punishment. The logic of the argument of the Member for Brent Central is that if someone’s punishment had an effect on their children that led not to “manifest and overwhelming harm” but to either manifest harm or overwhelming harm, it would be fundamentally and in principle unfair on the children, so that part of the punishment should not be carried out. Surely, however, it might equally be said that someone’s imprisonment would have an effect of manifest but not “manifest and overwhelming” harm on the children. If such an argument was accepted, the whole criminal justice concept of punishing people who have committed offences would become extremely difficult. Deportation is therefore simply a reasonable part of the overall punishment for someone who commits a serious offence.

I listened with great interest to the debate about the status of new clause 15 in European and UK law. A principle that we should always state and restate in this House is that, by its very nature, Parliament cannot pass a law that is illegal. We can pass laws that contravene international obligations or that we may decide our diplomatic relations require us to remove or repeal, but Parliament cannot pass an illegal law.

That point is important to remember, because there is a tyranny of lawyers. They give people advice stating that they think x or y, but until it has been judged by a court, that is no more than advice, which may be right or wrong. If my right hon. Friend the Home Secretary has been advised by the Home Office lawyer that the new clause does not meet the requirements of the European convention on human rights, that does not question the right of this House to pass it into law: it is our right to do so, and then to consider the judgment that may or may not be made by the European Court of Human Rights. That of course leaves open the question of whether the Home Secretary can sign the declaration that the Bill is compatible with the European convention on human rights. I am delighted that she is returning to her place as I say that.

My right hon. Friend has the right to go to another lawyer. When given legal advice that they do not like, many people see whether they can find one who gives different advice. Amazingly enough, when they pay a better lawyer, they sometimes get better advice. I hope that even in an era of austerity Her Majesty’s Government may seek out some better lawyers who can give improved advice that is more in line with what my hon. Friend the Member for Esher and Walton said.

The question is therefore only one of incompatibility, not of legality. I hope that the Opposition Front Bench team will also think about that. Whether the new clause is accepted and passed into law is not fundamentally a legal decision, because the legal position is as yet unproved—it has not been tested in the courts—so it is a political decision or a political statement about what hon. Members on both sides of the House think is the right way to treat people from foreign countries who have committed serious crimes. I would take the political decision that it is right to expel them from this country, and that it would be wrong to do so only if extraordinary factors meant that they ought to have the right to stay.

[Yasmin Qureshi]

It is on exactly that point that some Opposition Members have concerns about new clause 15. As the hon. Gentleman says, there may be exceptional circumstances that mean a decision should be made not to deport somebody, but the new clause tabled by the hon. Member for Esher and Walton (Mr Raab) would take away exactly such discretion, because it says, “If you get one year’s imprisonment, you’re out.”

[Jacob Rees-Mogg]

As always, the hon. Lady makes an excellent point, but it is a question about which bit of discretion would be taken away. The courts would retain discretion if there was a threat of harm or a threat to life and limb, as my hon. Friend the Member for Esher and Walton pointed out. Discretion would be circumscribed only in very specific cases relating to article 8, and that would be done because the courts appear to have made some quite eccentric decisions. What has really brought this to the attention of the British public is the huge backlog of deportations—4,000 people are apparently waiting to be deported—and the fact that a very high number of challenges are brought purely on the basis of article 8 rights, which cannot therefore involve people in fear of torture or of harm to life and limb. I do not think that anybody in the House wants to deport people at risk to life and limb. As a nation, we believe in offering refugee status to people genuinely at threat, but we are not in favour of the exaggeration of spurious rights.

As I have said, the decision is a political decision, not a legal one. It is for this House to make a political choice about how our criminal justice system works, what rights belong to people who have committed very serious crimes and how far such rights should go. If it became a legal decision—if it were taken to the courts—we would find out at a later stage whether the European Court of Human Rights thought it was compatible with the convention. The House would then make a second choice, which would be whether to maintain today’s political decision or reverse it to be compatible with the convention. That is not the choice before us today. This is a routine exercise of parliamentary sovereignty in adding to a Bill a provision that may become law and be justiciable at a later stage.

I know that a lot of other Members want to speak, so I will be brief on new clause 18. I have some concerns about it. I am perhaps rather romantic in my view of what it means to be a British subject. I always thought that Palmerston got it right on the Don Pacifico affair—the “Civis Romanus sum” principle. Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. It is incredibly important that there is equality before the law for all Her Majesty’s subjects who are living in this country and have right of residence here.

I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen. There are Members of the House who were born abroad and have been naturalised and, on occasion, they may vote against the Government, which I hope the Whips will not consider serious enough reason to remove their passport. The fundamental underlying principle of equality of all Her Majesty’s subjects is important. I am always nervous about giving the Executive relatively arbitrary powers, because they are the ones that can be most misused. Once a passport is in somebody’s hands, they ought to be no different from anybody else in any legal respect.

Crucially, there may well already be laws that could deal with the problem in another way. If people have committed an offence so serious, important and threatening to the life of the nation that their passport should be confiscated, surely they have committed some other crime for which they could be charged, dragged through the courts, perhaps found guilty by a jury and then sentenced accordingly, with the penalty handed down in the right and proper way and their rights and liberties as subjects being maintained. They may have committed treason if they have done something so serious that they are to have their passport removed from them.

I will not oppose the new clause, but I wished to raise those concerns. I understand that the approach has been agreed because it will not affect many people. That is fine—I am glad it will not have widespread application—but what message does it send to the nation at large?