Legal Advice: Prorogation

Charlie Elphicke Excerpts

Wednesday 25th September 2019 Commons Chamber

[Mr Speaker]

I think, but I am not sure, that the Attorney General is seeking to help the hon. Gentleman.

[Charlie Elphicke (Dover) (Ind)]

In applying this new legal principle that has been created or invented by the Supreme Court, how many Prorogations in the last century would have passed muster to the test that has been created? How can this longest Session of this House since the civil war now be lawfully brought to an end, and a Queen’s Speech lawfully brought forward? Finally, is Royal Assent a proceeding in Parliament?

[The Attorney General]

As to my hon. Friend’s first question, I say that, plainly, if one re-examines the historical records, there is no doubt that there would have been some—possibly quite a few— Prorogations that, under this test, might have had difficulty in passing. For example, Ramsay MacDonald prorogued this Parliament in 1930 for some months, during the course of a minority Government, at a time when the great Wall Street Crash had happened in 1929 and when I have no doubt that some would have said that the House should sit to determine the onset of the great depression and debate those important matters, but the courts looked on—they looked on impassively—as that Labour Government decided to prorogue. It happened again in 1948 and right up into the 1990s when it was said that a Parliament had been prorogued in order to avoid an embarrassing Select Committee inquiry. From now on, when a Prime Minister has to prorogue Parliament, he will have to look at all the Select Committees, see what inquiries they are doing and which Chairmen of which Select Committees might say in a mortally wounded and offended manner, “Why, to prorogue and not to allow my Select Committee to report is a matter of public importance, for which I will go to court and stop the Prorogation.” I do think that this test set by the Supreme Court invites quite a number of significant questions.

European Union (Withdrawal) Act

Charlie Elphicke Excerpts

Tuesday 15th January 2019 Commons Chamber

[The Attorney General]

Herein lies the critical question that we all have to confront in connection to the backstop. Before I answer it, however, I will take my hon. Friend’s intervention.

[Charlie Elphicke (Dover) (Con)]

I thank the Attorney General for giving way. While he pauses for breath, may I too take him to the airlock? In travelling through an airlock, it helps to have a supply of air. In this particular case, I would urge conditionality—that we do not agree to write out a cheque for £39 billion of hard-earned taxpayers’ money unless or until a future relationship agreement is agreed that is legally binding. That would give us greater leverage in the negotiation and enable us to deliver serious value for the British taxpayer.

[The Attorney General]

You cannot say to somebody to whom you owe money, “I am not going to pay you my debt unless you give me something else.” It is not attractive, it is not consistent with the honour of this country and it is not consistent with the rule of law. The fact of the matter is that the withdrawal agreement settles those historic obligations.

May I come to the critical question and the challenge that was—

Withdrawal Agreement: Legal Position

Charlie Elphicke Excerpts

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

That is because this procedure has been reinvented recently. The truth of the matter is that the House has no power to command documents that are not public and official. That is the constitutional question that the House needs to grapple with.

[Charlie Elphicke (Dover) (Ind)]

May I congratulate my right hon. and learned Friend on the passion with which he has made his submissions to the House today? In the light of his advice, would it be reasonable for the House to invite the Prime Minister to go back to Brussels and ask for termination of the backstop either on a given date, or after the passage of a certain amount of time?

[The Attorney General]

As my hon. Friend knows, that is not a legal question. We have reached a deal. The House must make a judgment on this deal. If it had been possible to secure a unilateral right of termination, it would have been secured. It was not secured because the European Union asked for an absolute guarantee at the Northern Irish border, but has said that it is temporary; that is written into the agreement. It may well be that the word “temporary” is not enforceable, in the sense that this will subsist even in the event of negotiations breaking down, but that is a clear indication that the backstop cannot subsist forever; and, in my view, as a matter of European Union law, it cannot.

European Union (Withdrawal) Bill

Charlie Elphicke Excerpts

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

One of the risks for Members taking interventions is that the very next point we are about to make is stolen, but my hon. Friend is absolutely right. I will just remind the House that the president of the CBI this morning said:

“If we do not have a customs union, there are sectors of manufacturing society in the UK which risk becoming extinct... Be in no doubt, that is the reality.”

This is at the heart of the debate. If we destroy the manufacturing model that I just described, we destroy a vital part of the economy and job losses will be considerable. That is why there are such high levels of concern across the business community about the Government’s current approach.

[Charlie Elphicke (Dover) (Ind)]

The right hon. and learned Gentleman is being very generous in taking interventions. Will he just tell the House whether he believes that Britain should remain in the EEA—yes or no?

[Keir Starmer]

For the benefit of the House, I am going to go through the customs union argument before moving on to discuss the EEA and the single market, and then I have other remarks to make. If the hon. Gentleman will forgive me, I will deal with his point when I deal with the EEA. I am currently dealing with the customs union.

--- Later in debate ---

[Tom Brake (Carshalton and Wallington) (LD)]

The right hon. Member for Leeds Central (Hilary Benn) used an analogy about the ship approaching the iceberg. He seemed to suggest that there are only two options: jumping off the side into the freezing cold water or taking to the life raft. There is indeed a third option, which is consulting the passengers about whether they would like to change the direction of the ship to avoid the iceberg in the first place. I hope that that is eventually what this country will do.

The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) criticised the Government for adopting the European Research Group-inspired red lines. We have heard from the Minister that, for instance, the EEA does not pass our test. Well, that is the Government’s test. I cannot remember it being a test on 23 June 2016. Those red lines have led the Government into huge difficulties with the customs partnership. “Max fac” will cost business £20 billion. The Government’s current proposal for the customs arrangements appears on the amendment paper alongside the names of Members including the hon. Member for North East Somerset (Mr Rees-Mogg) and the hon. Member for Wimbledon (Stephen Hammond). Clearly, that is a fudge. As the right hon. and learned Member for Rushcliffe (Mr Clarke) said, those two Members never agree on anything. The fact that an amendment stands in both their names suggests that it will not withstand the heat of the kitchen.

Neither do I think that Labour’s amendment—another huge dollop of fudge—will withstand the heat of the kitchen. I hope that at some point Labour will be able to explain how the UK can have full access to the internal market of the European Union with no new impediments to trade and common rights. Well, good luck with that. I think that is completely unachievable, and that it would be intellectually dishonest for anyone to support it today. Labour cannot have its cake and eat it, any more than the Government can, in relation to our departure from the EU.

The logical conclusion of many of the speeches we have heard today, by sensible Government Ministers and Labour Front Benchers, is that we should stay in the customs union and the EEA or, even better, stay in the customs union and the single market. Why not go the whole hog and simply stay in the European Union? Instead, we have this bizarre situation in which the Prime Minister, when I asked her earlier today whether there was any damage that Brexit could inflict that would cause her to change direction, is unable to say “No, there isn’t.” She said that she is committed to doing this, even though she, who was a remainer—many Government Members were remainers—knows that it will cause huge damage. That is something for which they will be held to account in future, as will Labour Front Benchers, who in many respects are equally complicit in delivering Brexit.

Unfortunately, I do not have time to go into any depth on the other amendments. We will be supporting Lords amendment 5, on the charter of fundamental rights; amendment (e) in lieu of Lords amendment 3, which is about environmental principles; and the family reunion proposal, which is amendment (i) to proposed amendment (a) to Lords amendment 24, because I am afraid the Minister gave no explanation at all why he would not support it.

In conclusion, the whole process for scrutinising these amendments brings shame on the House, and I hope that the much-maligned House of Lords will be able to do a much better job and that it will have much more time for scrutiny than we have been allowed in this Chamber.

[Charlie Elphicke (Dover) (Ind)]

One thing that my constituents in Dover and Deal were absolutely clear about when they decided to vote by a large majority to leave the European Union was the need to take back control of our borders and to end uncontrolled EU immigration—to end free movement. It is not just in my constituency; it is regions across the country, including Labour leave areas, which I know feel the same way. It should therefore be a red line for this House to ensure that, whatever happens, free movement comes to an end, because our constituents up and down the land have been very clear about that.

We must also ensure that we take the full opportunities that leaving the European Union will afford this country. That is why we need to leave the customs union and why we cannot stay in the EEA. The truth is that 90% of future economic growth in this world of ours will come from outside the European Union. In recent decades, the share of global GDP represented by Europe has halved, from about a third to just about 15%. Europe is in relative decline. We do not have to go that way ourselves. We can jump forward to explore, trade and participate in the fast-growing areas of the planet. I am not saying that it will be easy, but it is an instruction that has been given to us by our constituents and by this nation. What is more, when it comes to trade in goods, it is important to remember that the European Union sells us £100 billion more goods than we sell to it. It is therefore in its interests to ensure that there is frictionless trade, more so than it is in our interests.

We need to ensure that we are fully prepared for every eventuality and every single kind of deal that we might do. That is why I am making the case that we need to modernise our systems. We have needed to modernise them for years, so it is no-regrets spending. We should modernise them because the border is no longer as it was in the 1950s, where we checked every lorry; the border is a tax point. With the systems in place that technology now enables, trusted traders could be required to account for their loads and we could ensure that there was no need for any checks at the border whatsoever. That includes Northern Ireland.

Those who are opposed to us leaving the European Union like to cite Northern Ireland, but the truth is that we do not need any infrastructure or any checks at the border. We can have frictionless trade through the border, with audits in workplaces and computer systems that ensure there are proper audits. Singapore has such a single-window system in place, and countries around the world have such systems. We need to take advantage of that, because that is the kind of future we can make, and that is why I have been making the case for that investment to be made.

[Anna Soubry]

I am grateful to my hon. Friend for giving way. Has he read the report by the Northern Ireland Affairs Committee? Members of that Committee went all around the world and could not find anywhere where there was the frictionless trade of which he speaks. They include a number of leavers, but they came to that conclusion. He has to face up to that reality and tell us how he will to deliver the borders of which he speaks.

[Charlie Elphicke]

That is exactly why I have been setting out the case for how we can use technology and these sorts of system, with a trusted traders scheme, and how we can build on the WTO’s trade facilitation agreement, to which the European Union has signed up. We should be making this investment—we should have been making this investment many years ago.

[Mr Alister Jack (Dumfries and Galloway) (Con)]

On either side of the Irish border, excise duties are different, VAT is different and the currency is different, and we have had a common travel area since 1923. Does my hon. Friend agree that there is no need to have friction with trade if we have a free trade agreement?

[Charlie Elphicke]

My hon. Friend makes the perfect case, and it is the case I have made in a report in which I set out how we can achieve that and manage it positively. We need to use technology and to engage with European member states across the water. After all, customs arrangements and the accounting of customs are not done by Brussels; they are bilateral. We can have bilateral discussions with the French and with the Belgians at the port of Zeebrugge. We must realise that there is no need to have a search point at the border and that the border is a tax point. That is the essential point, and it is the same in Northern Ireland.

That is why I am personally confident that we can and should invest in this. That means investing properly in the road infrastructure on the way to the channel ports and investing properly in computer systems. It means investing in systems to ensure that checks can be carried out away from the border. It is no-regrets spending, and that is why the Government should be making that investment now, not waiting for whatever the deal is to do it.

[Caroline Flint]

Since the referendum, the debate has often been polarised in this place and outside it between hard-line Brexiteers who feel that we can walk away without a deal and walk off a cliff edge, and hard-line remainers who do not accept the result of the referendum and want to find whatever way possible to stay in the EU. That is why I am not supporting Lords amendment 51. The essential choice for Parliament is whether we accept the outcome of the referendum and the article 50 process and agree that the UK leaves the European Union in March 2019, or whether we seek to subvert that process. Perhaps the Norway option—the European economic area—suits that purpose.

The EEA agreement helped three small countries that could not persuade their people to adopt EU membership and that accepted having no say in return for single market membership. They accepted the role of rule takers, not rule makers, with second-class membership of the European Union. Much has been said about Michel Barnier saying this morning that he will give us membership of the EEA plus the customs union. Of course he would—he would bite off the Prime Minister’s hand for that deal, because apart from leaving without any deal, it is the worst deal for the United Kingdom.

--- Later in debate ---

[Peter Kyle]

The single market is a law-based structure with a court acting as referee. That is from where its strength derives, and it is a strength that the EU will not weaken by giving full access to countries with divergent regulatory systems or standards. That is why I stand to support Lords amendment 51 and to associate myself with the earlier comments of my hon. Friend the Member for Wirral South (Alison McGovern) about the Labour Front-Bench team and how they have responded to the challenges they face in bringing us together.

The EEA offers us access to the single market with the greatest flexibility that we are ever going to achieve, and, best of all, it already exists. In two years’ time, we will never be able to set up all the regulatory systems, checks and standards that we need to satisfy the EU that we are a reliable partner in our own right. It is only in this place that we seem to get away with bending the laws of nature or, in this case, common sense to ensure that we can make the argument that that is the case. We will not get the exact same benefits outside of the single market.

The truth is that the Government are not negotiating with the EU; they are negotiating with themselves and pretending that that has the same consequences. The people on the frontline of the economy are watching, and they are increasingly horrified by what they see. After two years of negotiations, the Government have returned with only one bankable promise: we will get another two years of negotiations. This time, however, we will be outside the EU, trying to negotiate exactly the same benefits that we have just given up. Negotiation is the new normal. There will be an ever-ending set of negotiations that are never going to end. People seem to believe that a set of negotiations will end in March or in two years’ time, but we will have a new set of negotiations every time the single market evolves, and that will open up every single one of the wounds that have been on display here today, not just once, not just for the next two years, but indefinitely.

[Charlie Elphicke]

Will the hon. Gentleman give way?

[Peter Kyle]

I am not going to give way, because the hon. Gentleman has already spoken, but I look forward to debating with him when his constituency fills up with lorries after we leave the single market.

There is a lot I would like to say about the honest challenges raised by my right hon. Friend the Member for Don Valley. She spoke to us in a respectful way, and I hope that she will see that I and others have been respectful to her and always will be.

European Union (Withdrawal) Bill

Charlie Elphicke Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Leslie]

These issues are very much to do with legal clarity. They are to do with ensuring that the body of our law can operate smoothly and with stability, and that the courts can properly interpret the way in which various rights will apply in the circumstances that our individual constituents may encounter.

You were not in the Chair during the Committee stage, Mr Speaker, but you may recall that we had some discussion about aspects of the charter of fundamental rights. Amendment 4, and amendment 7 tabled by members of the Scottish National party, makes the important point that, as we heard earlier from my hon. Friend the Member for Sheffield Central (Paul Blomfield), this is not a simple “copy and paste” piece of legislation. I agree with my right hon. Friend the Member for Leeds Central (Hilary Benn): it seems very peculiar that the charter has been explicitly excluded from the carrying forward of rights. Ministers say, “Do not worry: all those matters are already covered”, or “Common law can deal with them adequately”, but I do not think that such verbal assurances are good enough, and evidence given to the Exiting the European Union Committee bears that out.

[Charlie Elphicke (Dover) (Ind)]

I read what the report said about the issue of the charter of fundamental rights, and I must say that I thought it very inconclusive. I do not think that the Committee took a strong position on either side of the debate.

[Mr Leslie]

The Select Committee consists of Members in all parts of the House. Far be it from me to interfere with the way in which my right hon. Friend the Member for Leeds Central manages—heaven knows how—to steer through a report compiled by a Committee that is not only august but enormous. Evidence was submitted, however, and I do not think that it can be swept away.

Let me remind the Committee what we are talking about when we refer to the Charter of Fundamental Rights. We are talking about rights that relate to

“dignity, the right to life, to freedom from torture, slavery, the death penalty, eugenic practices and human cloning”.

We are talking about

“freedoms, the right to liberty, personal integrity, privacy, protection of personal data”—

which will be a massive issue when it arises later in our proceedings—

“marriage, thought, religion, expression, assembly, education, work, property and asylum”.

We are talking about

“equality, the right to equality before the law, prohibition of all discrimination including on the basis of disability, age and sexual orientation, cultural, religious and linguistic diversity, the rights of children and the elderly”.

Again, some of those rights are not necessarily enshrined in primary legislation, but have accrued because of our membership of the European Union over several decades. We are talking about

“solidarity, the right to fair working conditions, protection against unjustified dismissal, and access to health care, social and housing assistance…citizens’ rights, the rights of citizens such as the right to vote in elections and to move freely, the right to good administration, to access documents and to petition Parliament”.

We are also talking about justiciable rights:

“the right to an effective remedy, a fair trial, to the presumption of innocence, the principle of legality, non-retrospectivity and double jeopardy.”

We can all point to parts of existing UK law where many of those rights may be covered adequately, but other rights—particularly those relating to children and families and to social policy—are connected very much with EU law.

--- Later in debate ---

[Mr Leslie]

I am worried. The right hon. Member for Broxtowe (Anna Soubry) was saying to her hon. Friends, “Be careful because our constituents do care about rights.” She said in particular that younger people care about rights. They really do matter. They may not matter to them in their daily lives today, but they may matter to them or their family or relatives or the environment tomorrow. Those are all things our constituents care about.

[Charlie Elphicke]

The hon. Gentleman has been incredibly generous in taking interventions throughout his speech. When this matter was debated at the previous stage, we had a long discussion on the charter of fundamental rights and it was clear that it divides into three sections. One section is already covered by the Human Rights Act, another section will be meaningless when we leave Europe—it includes rights such as the right to petition the European Parliament—and there is a middle section where there are rights that we should look at carefully. The right way to deal with that is through a constitutional Bill in due course to reset our own rights settlement in this country for all citizens, not just for European law.

[Mr Leslie]

If that were the right way, the Government would have introduced a Bill to provide such certainty, instead of saying, “Mañana. Maybe at some point in the future we will try to close this loophole.” We have the Trade Bill now, as well as the Nuclear Safeguards Bill and a customs Bill. We are supposed to have an immigration Bill at some point, although I suspect that the Government are having a few difficulties figuring out how to bring it forward. These Bills are supposed to be the fundamental underpinnings of the copy-and-paste process that the Government are pursuing. They are supposed to be taking aspects of European Union rules and regulations and ensuring that they will still be here after March 2019, but no Bill relating to the charter of fundamental rights has been brought forward.

[Mr Leslie]

Personally, I believe that Parliament does and should value the provisions of the charter of fundamental human rights. I trust our legal system to be able to reconcile textual difficulties between different Acts. I would rather operate on the precautionary principle and have those rights covered within our law than see the protections that are offered to our constituents expunged at this point, only to unwittingly discover later that the rights we used to have under the charter are no longer provided for because the Government of the day did not want to transpose them.

While talking about rights, but in a completely different context, I want to talk about new clause 7, which has been tabled by the hon. Member for Brighton, Pavilion (Caroline Lucas). It relates to animal sentience and the welfare of animals—not human rights but animal rights. If there is one issue that can be guaranteed to fill all our inboxes, it is the protection of animal rights. Our constituents really do care about this issue. The Government have already got into a tremendous pickle over this, and it would have been funny if it were not so tragic to see the Secretary of State for the Environment scrabbling around trying to pretend that, all of a sudden, the Government really cared about these matters.

Brexit will affect this area quite considerably. On the International Trade Committee, we heard evidence from various animal rights organisations and others involved in the agricultural trade sector, including the National Farmers Union and those involved with what are known as the sanitary and phytosanitary regulations relating to the import and export of animal products. There is a reason that the Americans dip their chickens in chlorine, Mr Speaker. I do not know whether you have had chlorinated chicken recently. I am not that fussy myself, but perhaps we will be invited to a tasting session at the new American embassy at some point. The reason they dip their chickens in chlorine is that the welfare standards that cover their abattoirs and the way in which their animals are looked after before slaughter are far worse than ours. Before the animals reach the consumer, they need to be cleaned up in a way that is not necessary here in the UK because we have higher welfare standards, not least by virtue of our membership of the European Union. Across all the European Union, we take a precautionary principle when it comes to this kind of regulation. We do not have to dip our chickens in chlorine, because they are already subject to certain health and safety standards.

Animal welfare issues matter in relation to trade as well. I find it perplexing when Conservative Members say that our salvation will be a trade deal with President Trump and the United States. We all know that the primary goal of the United States will be to have a treaty in respect of agriculture. If we do such a deal, the Americans will want to sell us animal products that have been produced under lower welfare and regulatory standards. That will be the deal they will seek. However, if the Secretary of State for the Environment says that we are going to have exactly the same regulatory standards as we have now, he will effectively be telling the Americans that there can be no trade deal. That would be the outcome—[Interruption.] It would certainly be a very big sticking point.

[Charlie Elphicke]

In Dover and Ramsgate in east Kent, we have to put up with the evil and wicked trade of live animal exports, and we have to do that because of European law. We now see an opportunity to stop that evil trade, for the sake of our communities and for animal welfare, by leaving the European Union and taking back control. Does the hon. Gentleman not welcome that?

[Mr Leslie]

There are ways of mending, improving and reforming animal safety standards within the European Union. We should be making the case to do that. We do not want to throw away the benefits that the hon. Gentleman’s constituents enjoy, such as being free from traffic jams—not all the time but on many occasions. If Dover has to institute all the necessary sanitary and phytosanitary checking and inspections, with all the warehousing arrangements and other obstacles and regulations that will be needed at the border because we have left the European Union, his constituents will be mightily annoyed by the bureaucracy that they will encounter.

--- Later in debate ---

[John Redwood]

Absolutely not. Scottish voters’ views matter very much. They have a privileged constitutional position, which we are all happy with, such that in many areas Scotland makes her own decisions through her own Parliament. However, when it comes to a Union matter, I thought we all agreed that where we had a Union-wide referendum, the Union made the decision and the Union’s Parliament needs to implement the wishes expressed in the referendum. That is why Members from every party in the House of Commons, apart from her party and a few Liberal Democrats, decided, against their own judgments in many cases, that we needed to get on with it, send the article 50 letter and give this Bill a good passage. We are bound by the wishes of the British people as expressed in the referendum.

[Charlie Elphicke]

Does my right hon. Friend detect, as I do, a tendency in SNP Members, which reaches its pinnacle in the hon. and learned Member for Edinburgh South West (Joanna Cherry), not to accept the results of any referendum held in this country? They reject the alternative vote referendum result, they will not accept and respect the Scottish referendum result, and now they are trying to countermand the European referendum result. I really think it is high time that they accepted the decisions made in referendums in this country.

[John Redwood]

That is extremely good advice. I find myself in a rather different position from the hon. and learned Lady. She finds herself in a position where every time there is a referendum in Scotland or the UK, she is on the losing side, whereas I have found that I am usually on the winning side. I seem to be much more in tune with the people. I agreed with the people’s judgment on grammar schools when we had a referendum on that, I agreed with their view on the voting system, I agreed with the Scottish people’s judgment on staying in the Union, and I very much agree with the United Kingdom electors’ judgment that we should leave the European Union. The people are often much more sensible than their Parliament wishes them to be, and it is great when Parliament then has to listen to the people and get on with doing the job.

The main point that I wish to make is in response to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who tried to tackle the scholarship-level question that underlies our debates on this group of amendments—whether we can transfer all EU law into good British law, or, in practice, end up having to accept some European law because of the complexities involved. In my brief exchange with him by way of intervention, I pointed out that the rights of the British people have their best defence in the common sense and voting strength of the British people, that that will be reflected in their elected Parliament, and that if their elected Parliament gets out of line with the will of the United Kingdom voters, then the voters will, at the first opportunity, change the composition of the Parliament until it reflects the wishes of the United Kingdom voters on the matter of rights.

My right hon. and learned Friend countered by saying that taking my view would mean that we only ever had common law and Parliament would never need to legislate. That is a silly caricature of the true position. We all know, I think, that it is very difficult to define eternal, immortal rights. Some rights last for longer and are more important than others, but people find it very difficult to define that. Looking back over past statements of rights over the centuries, one sees that some of them now grate or are clearly very much against our view of what a right should be, whereas others may last for rather longer. Quite a lot of statements of rights have a big component related to what is topical or socially acceptable at the time. We are largely pleased that what is socially acceptable evolves, so there are many bad practices of the past that we have come to see were bad practices, and that has been reflected in new legislation. We always need to legislate to reflect changing perceptions about what is a right and which rights we should give most cognisance to.

Immigration Bill (Fourteenth sitting)

Charlie Elphicke Excerpts

Tuesday 10th November 2015 Public Bill Committees

[Paul Blomfield]

I am mindful there might be a vote in the Chamber in a few minutes, so I will try to be brief. I accept the Minister’s point that this is a complex and difficult area of policy, but evidence from other countries demonstrates that statutory limits on administrative intervention can and do work effectively. There is a case to be made for the limit suggested in new clause 3 and the specific exclusions suggested in new clause 1.

I underline the breadth of support across the House on this issue. That was evident in the inquiry and in our debate on 10 September, when 25 Members from all parties represented on this Committee—and more besides—spoke. The House, as a result of that debate, endorsed the recommendations.

On the Minister’s point about foreign national offenders and the wider caveats in new clause 3, not all foreign national offenders are necessarily a risk to public safety, and issues around that need to be addressed. I accept his point that there may be a lack of precision in how the new clause is drafted. For that reason, I agree not to press new clauses 1 and 3 on the understanding that he will, as he indicated, actively come back to us with the results of his consideration of the Shaw review. We will then have an opportunity to come back to the issue while the Bill proceeds in a way that achieves the objectives of the new clause, but perhaps in a better crafted way. I beg to ask leave to withdraw the clause.

Clause, by leave, withdrawn.

[The Lord Commissioner of Her Majesty's Treasury (Charlie Elphicke)]

rose—

[The Chair]

Before we adjourn, I add that I may not be with you again if business finishes on Tuesday morning next week. I thank the Clerks, Members on both sides of the Committee, including those on the Front and Back Benches, and everyone for their co-operation during proceedings.

Phone Hacking

Charlie Elphicke Excerpts

Wednesday 6th July 2011 Commons Chamber

[Catherine McKinnell (Newcastle upon Tyne North) (Lab)]

I extend my congratulations to my hon. Friend the Member for Rhondda (Chris Bryant) on securing this emergency debate, and on his longstanding and tireless campaign to bring these issues to light, alongside my hon. Friend the Member for West Bromwich East (Mr Watson).

There have been many thoughtful, powerful, comprehensive and brave contributions from Members in all parts of the House today, including from a number of the victims and alleged victims of the phone hacking scandal, and from several Chairs of Select Committees who have been involved in investigating the matter. It is clear that all Members of the House hold a common view that the ongoing criminal investigation into phone hacking activity must take priority.

It is important to be clear that we on the Opposition Benches would not support any course of action that could or would put the hard work of the police and investigators, or any future criminal prosecutions, at risk. Our priority and focus must be on ensuring that justice is secured for people who have been victims of that crime. In considering this issue, it is of course important to reiterate that the increasingly shocking and distressing revelations in this scandal should by no means result in all journalists and newspapers, whether national or local, being tarred with the same brush. The incredibly important role played by the tireless campaigning of The Guardian on the issue has been mentioned. The hon. Member for Broxtowe (Anna Soubry) paid tribute to the great work of local journalists too.

However, a criminal justice system that inspires public confidence and an independent, rigorously regulated media are two key planks of a functioning democracy, and it is clear that both of these have been damaged by this developing scandal. The allegations unfolding daily, and sometimes hourly, have thrown up many more issues than can be dealt with or resolved through criminal investigations and prosecutions alone. We are not alone in saying this. The Government should listen to the public and, as the shadow Home Secretary outlined earlier, the Metropolitan Police Commissioner himself. That is why we welcome the Prime Minister’s commitment today to hold a public inquiry, or inquiries, into the issues that have arisen as a result of this scandal.

[Charlie Elphicke (Dover) (Con)]

Will the hon. Lady give way?

[Catherine McKinnell]

I am afraid that I cannot, as time is very short.

As outlined earlier, given the potential conflicts of interest, we need reassurance about exactly what the Prime Minister’s role will be in this. I must also reference the widespread concerns expressed by Members across the House about News Corp’s takeover of BSkyB. I trust that the Attorney-General and the Culture Secretary will treat all these concerns with the seriousness they deserve and take action accordingly. Although the Attorney-General said that he was mindful of the comments that have been made during the course of the debate, we have not been reassured that positive steps to set up a full, independent, wide-ranging and transparent inquiry will be taken without delay.

Without jeopardising any criminal investigations or future prosecutions, the Government can begin the work of agreeing the nature and scope of the inquiry and who will take it forward before those criminal proceedings are complete. Criminal investigations into, and prosecutions for, phone hacking will certainly take months to reach a conclusion, and possibly years. If we are to start to rebuild the public’s confidence in our criminal justice system and the operation of our newspaper industry, the public and the victims of this dreadful crime need the reassurance of a public inquiry now.

Voting by Prisoners

Charlie Elphicke Excerpts

Thursday 10th February 2011 Commons Chamber

[Charlie Elphicke (Dover) (Con)]

rose—

[Sir Alan Beith]

rose—

--- Later in debate ---

[Mr Straw]

No, they are not, and I will come on to that. The fundamental distinction to be drawn is this: all of us, as I have just spelled out, are required to respect and observe decisions of the Court on fundamental human rights, because it was in respect of those that we and other countries signed up.

[Charlie Elphicke]

Will the right hon. Gentleman give way?

[Mr Straw]

No, I have to make progress.

The issue before us today—here is the heart of the matter—is by no stretch of the imagination a breach of fundamental human rights. Rather, it is a matter of penal policy, which the minority of judges at Strasbourg—and very senior they were, too—said should be left to the UK Parliament. Through the decision in the Hirst case and some similar decisions, the Strasbourg Court is setting itself up as a supreme court for Europe, with an ever-widening remit. That is why the tension that I mentioned now threatens to become a collision.

Even in countries with supreme courts much more powerful than ours, there is a democratic override of their decisions. For example, in the United States or Germany, which have very strong courts that can strike down primary legislation, the courts’ decisions can be overridden by, for instance, democratic amendment to their constitutions. There is no such democratic override available for decisions of the Strasbourg Court, so we are faced with a court judgment following which, without warrant from the treaties to which we signed up, we as elected MPs are expected to do the opposite of that in which we believe.

My predecessor as Lord Chancellor, Lord Falconer, and I wrestled for five years to find a way through the problem. Initially, Lord Falconer’s view was that the requirement on us following the 2005 Hirst decision was simply

“to consider carefully the basis”

of our law. He went on that it could be the case

“that it is a proportionate conclusion that all people who are convicted and sent to prison cannot vote.”

He began one consultation, and when that was inconclusive I launched a second. However, unless and until I found a way—if one existed—that could satisfy the Strasbourg Court, this House and the British people, there was no appetite throughout the House, or among our Whips, for me to bring forward legislative proposals.