Oral Answers to Questions

Debate between Chris Stephens and Joanna Cherry

Monday 29th January 2024 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

2. What assessment her Department has made of the potential impact of changes to visa fees and conditions on the number of applications for postgraduate research.

[Chris Stephens (Glasgow South West) (SNP)]

19. What assessment her Department has made of the potential impact of changes to visa fees and conditions on the number of applications for postgraduate research.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Chris Stephens and Joanna Cherry

2nd reading
Tuesday 12th December 2023 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

I feel as if I have been sucked back in time to listen to Enoch Powell’s “rivers of blood” speech again. I represent a multicultural constituency containing many immigrants, many asylum seekers and many refugees, and I can tell the House that my constituents do not support the Bill. At the weekend, all sorts of people stopped me in the street to tell me that they hoped I would speak against it because they found it repugnant. Perhaps the hon. Member for Don Valley (Nick Fletcher) needs to inform his constituents that the reason they live in the conditions he described, and the reason they have such low wages, is not immigration, but more than 10 years of Tory government.

What I intend to focus on is the law, not as a lefty lawyer but as someone who tries to do what lawyers are bound to do—look dispassionately at the law. Those who listen to the public debate about the Bill, in the media at any rate, could be forgiven for thinking that the debate about its legality was confined to the competing tribes within the Conservative party, but fortunately it is not. There are sources of advice independent of the Government and independent of their querulous Back Benchers, and it is on them that I want to focus.

This morning, the Chair of the Joint Committee on Human Rights published a briefing based on the independent legal advice that has been given to the Committee. That independent legal advice is for the benefit of all Members of Parliament and peers, which is why it has been published. I have also had occasion to consider the briefing published by the Bingham Centre for the Rule of Law. They are both important, because the Government are trying to position themselves as having stopped short of breaching international law, but those independent briefings make it clear that they have not. The Bill undermines the principles of the rule of law and the separation of powers, which are supposedly central to the British constitution, as well as undermining various of our international obligations.

I commend to hon. Members a reading of the independent legal advice that has been given to the Joint Committee on Human Rights. I will take a few highlights from it. Requiring the courts to conclude that Rwanda is safe, even though the evidence has been assessed by the UK’s highest courts to establish that it is not, is a remarkable thing for a piece of legislation to do. If the Government were so confident that Rwanda has suddenly become safe in the last month, as I said earlier, why pass this Bill at all?

Another point made in the Joint Committee on Human Rights’ legal analysis is that disapplying the Human Rights Act is very significant. If human rights protections are disapplied when they cause problems for a policy goal, they lose the fundamental and universal quality that characterises them, and that is arguably particularly the case when they are disapplied in respect of a particular group—in this case, migrants who have come to the UK without prior permission. In my own aside, I will just remind the House that history shows that when a country withdraws human rights from a particular group, it is on a particularly slippery slope.

The independent legal advice to the Joint Committee also makes it clear that, crucially, no matter what the legislation says, it can affect only domestic law. That was the point of my intervention on the hon. Member for Stone (Sir William Cash) earlier. As the Supreme Court explained only a month ago, the United Kingdom is prohibited from allowing refoulement under the refugee convention and the ECHR, as well as under the UN convention against torture and the international covenant on civil and political rights. Passing this Bill will not change the fact that we are signed up to those obligations in international law, and it will not change the fact that we are breaching our international legal obligations, so the Conservative Members—particularly the lawyers—who have convinced themselves that it is okay to go through the Lobby and vote for the Second Reading of this Bill tonight are simply wrong. If they look at the independent legal advice from the JCHR and the Bingham Centre on the Rule of Law, they will see that that is the case.

[Chris Stephens (Glasgow South West) (SNP)]

Is it not a fundamental problem with the Bill that so many people see it as punishing the exploited and not the exploiter? If the Government were serious about this issue, that is exactly what they would focus on.

Draft Strikes (Minimum Service Levels: Passenger Railway Services) Regulations 2023

Debate between Chris Stephens and Joanna Cherry

Monday 27th November 2023 General Committees

[Joanna Cherry (Edinburgh South West) (SNP)]

I am grateful for the opportunity to make a few comments about the human rights aspect of the regulations in my capacity as acting Chair of the Joint Committee on Human Rights. When the Committee published a very full legislative scrutiny report on the parent Act in March, we raised serious concerns about the Act’s compatibility with the UK’s obligations under international law, in particular the rights to freedom of assembly and to freedom of association under article 11. We share those concerns in relation to these regulations and the way in which they have been framed. As the Minister is aware, the European convention on human rights is, thankfully, still part of our domestic law, due to the survival of the Human Rights Act 1998. Article 11 does not refer expressly to the right to strike, but it has been interpreted as covering the taking of strike action—in a case brought against the Russian state, ironically.

When the Joint Committee on Human Rights took evidence from international law experts, the only country in the whole of Europe they could think of that had similarly draconian legislation to the United Kingdom was Hungary, as well as Russia, of course, although Russia has now left the ECHR—rightly so, after the invasion of Ukraine. I am not sure that the UK Government should want to be in the same grouping as the Government of Hungary, but by bringing in this draconian legislation, they are.

Article 11, as I said, has been interpreted as covering the taking of strike action. The European Court of Human Rights has also referred to requirements set down by the International Labour Organisation when assessing compliance with article 11. I know from my recent meeting with the TUC that it has reported the Government to the ILO in relation to the parent legislation, and it is also concerned about these draft regulations. In legal terms, a qualified right to strike is also provided for by article 8 of the international covenant on economic, social and cultural rights and article 6.4 of the European social charter, both of which bind the United Kingdom in international law.

Compliance with article 11 of the ECHR requires that any restrictions on strikes are

“in accordance with the law”,

which includes a requirement that the consequences of the law must be foreseeable for those it affects—we heard earlier that perhaps that is not so in the draft regulations. The restrictions must also be

“necessary in a democratic society”

to meet a “legitimate aim”. That condition requires the restrictions to meet a “pressing social need” and for them to be

“proportionate to the legitimate aim pursued”.

I very much question whether these draconian regulations are proportionate to the aim being pursued.

The Committee might recall that at the tail-end of the year before last, the Government introduced a Transport Strikes (Minimum Service Levels) Bill, which had an alternative mechanism in it. That was going to be based on negotiation and independent resolution of disagreements about minimum service levels. That kind of approach would reflect standards set out by the International Labour Organisation, and would involve less interference with article 11. It would therefore be more likely to meet the requirement of proportionality.

The Government have never adequately explained why they went from initially proposing negotiation and an independent resolution of minimum service levels to the draconian imposition of them. I will be interested to hear if the Minister has been able to come up with an answer to that.

As I said, the Joint Committee on Human Rights had similar concerns about the draft regulations as we did about the Act. Last week, in my capacity as acting Chair, I wrote to the Secretary of State for Business and Trade setting out our concerns about the regulations. In doing so, I was very conscious of the fact that the consequences of employees failing to work as required by a minimum service level imposed through a work notice, and of trade unions not taking reasonable steps to ensure that their members complied, would include a loss of automatic protection against dismissal for participating in a strike. That is a big deal.

Sometimes, Government Front Benchers talk about the rights of the public as though somehow those rights were in conflict with the rights of trade unions in exercising the right to strike, but trade unionists and workers are members of the public. They face very straitened times at the moment, with the cost of living crisis, and some people are struggling to make ends meet. If people are struggling to make ends meet and their wages are not being raised in line with inflation, in particular in relation to energy bill inflation, the only option they have is to withhold their labour in a dispute. It is a fundamental part of our democracy that they should be able to do that.

[Chris Stephens]

I am grateful to my hon. and learned Friend for her excellent speech. She is correct to say that the Government do not support decent wages for workers. I go back to the point that she made about protections from dismissal, because she is articulating the fact that, under this legislation, anyone could be dismissed without the right to an employment tribunal. Can she name any other groups of workers who do not have that basic right?

[Joanna Cherry]

The Joint Committee made that point in our initial report. A trade union’s involvement in an illegal strike could result in damages of up to £1 million. Any individual worker who participated in a strike that was found to have been illegal could be dismissed. The difficulty with these draft regulations is that workers and trade unions may not be able to foresee the legality of action, which is why the penalties are particularly concerning. We pointed out that lesser penalties for individuals—suspensions rather than dismissals— would make interference with the right to strike more proportionate.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Chris Stephens and Joanna Cherry

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Joanna Cherry]

I rise to speak to amendments 25, 23 and 22, and new clause 7 in the name of the Mother of the House, the right hon. and learned Member for Camberwell and Peckham (Ms Harman). She has asked me to do so because she is operating on a proxy vote at the moment. She has asked me to remind the Committee that these amendments, as well as having her support and cross-party support, also reflect concerns on the part of the Joint Committee on Human Rights, of which she and I are both members. I will run through them quickly and not address them in detail because we have heard a lot of good speeches and I want to make a couple of points that have not been made.

Amendment 25 and new clause 7 relate to judicial oversight of the grant of authorisations. They would not be effective until there was judicial authorisation from a judicial commissioner and there would be a test of reasonable grounds. Amendment 23 relates to the grounds for granting authority. As with amendments tabled by other hon. Members, we wish to take out references to preventing disorder and to economic wellbeing. Amendment 22 deals with imposing clear and specific limits on the types of crimes that could be authorised, which is done by other Five Eyes countries. I will come to that in a moment.

I also wish to speak to new clause 6 in my name and that of my hon. Friend the Member for Glasgow South West (Chris Stephens), which also has cross-party support. It reflects concerns of the National Union of Journalists in relation to matters that we discussed previously when the Investigatory Powers Act was going through the House and there was a successful campaign to require prior judicial authorisation when any application was made to identify confidential journalistic sources. Currently, those applications must be given prior authorisation by a judicial commissioner. Our fear is that this Bill, as currently framed, would give back-door access to identifying sources, so new clause 6 attempts to deal with that.

I wish to give my support and that of the Scottish National party to amendments tabled by the hon. Member for Streatham (Bell Ribeiro-Addy) in relation to trade union protection; I know that my hon. Friend the Member for Glasgow South West has worked hard on those matters. I also support amendments 20 and 16 in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and new clause 8 in the name of the hon. Member for Walthamstow (Stella Creasy).

Like others, I am extremely concerned about the fact that the Bill is being railroaded through. The indication that not even the modest amendment put forward by the Intelligence and Security Committee will be taken on board by the Government suggests that they are not giving the time of day to amendments lodged by others as we hoped for on Second Reading.

I mentioned what other Five Eyes countries do. The approach that the UK Government want to railroad through in the Bill stands in stark contrast with that of two of our closest allies: the United States of America and Canada, which are two of our closest Five Eyes intelligence partners. The Canadian Parliament prohibits serious offences from these sorts of authorisation, including murder, torture and violating the sexual integrity of an individual. Canada’s intelligence service can only use its authorisation process to give agents a defence to prosecution, rather than any blanket immunity. In America, the FBI has for many years run agents using guidelines that expressly ban certain criminal conduct. According to guidelines issued by the US Attorney General, the FBI may never authorise an informant to

“participate in any act of violence except in self-defense”.

The approach of the United Kingdom Government is without precedent. That is why my colleagues and I in the SNP will not be taking any lectures from Government Front Benchers or Back Benchers about our commitment to the security of these nations or the prosecution of serious crime.

The Bill has some implications for devolved powers, because in Scotland the prosecution of serious crime is a devolved matter. I regret to say that, while there has been regular engagement with the Scottish Government and Scotland’s Lord Advocate in relation to aspects that will impinge upon the investigation and prosecution of serious crime in Scotland, the expectations of the Scottish Government and our chief Law Officer have not been met so far by the Government, particularly in respect of independent judicial oversight and prosecutorial independence. As the Bill stands, in so far as it impinges on the prosecution of serious crime in Scotland, the Scottish Government will not be able to recommend a legislative consent motion.

My colleagues in the Scottish Government, like others in this House, recognise that, because of recent litigation, there is a need to provide a statutory footing for the security services and law enforcement agents to sanction some lawbreaking when serious crime is being investigated by covert human intelligence sources. But we think that the Bill goes far too far, and we are frankly exasperated by the lack of time given for scrutiny of the Bill and the Government’s attitude towards the many and varied amendments lodged, which is typified by the fact that they do not even seem prepared to accept the modest amendment tabled by the Intelligence and Security Committee.

I want to say something about the human rights aspect. On Second Reading and during this debate, there have been claims that the Human Rights Act is a sufficient safeguard, so we do not need to delimit the offences that can be authorised. That is wrong, and it is close to a disingenuous claim by the Government. The Government themselves, in the third direction case before the Investigatory Powers Tribunal, argued that the Human Rights Act does not apply to crimes committed by CHIS. They said:

“the state, in tasking the CHIS… is not the instigator of that activity and cannot be treated as somehow responsible for it… it would be unreal to hold the state responsible.”

That position is repeated in the human rights memorandum published with the Bill, which claims that

“there would not be State responsibility under the Convention”—

the European convention on human rights—

“for conduct where the intention is to disrupt and prevent that conduct, or more serious conduct… and/or where the conduct would take place in any event.”

Based on that analysis, an informant could be authorised to actively participate in shooting on grounds that the perpetrator intended to disrupt crime or that the shooting would take place in any event. I just think that is frankly wrong, and I think we are being given false reassurance by reference to the Human Rights Act. I will not push my amendment to a vote, or any of the amendments in the name of the right hon. and learned Member for Camberwell and Peckham, but the Scottish National party will support any other amendments that would ameliorate the Bill.

[Chris Stephens (Glasgow South West) (SNP)]

On human rights, there is a very real concern about the practice of blacklisting. Obviously the construction industry found its blacklist, but other sectors of the economy have still to find theirs. Is my hon. and learned Friend concerned, as I am, that in years to come someone will find themselves on a blacklist because of this legislation, and because there is no legal protection in this legislation?

[Joanna Cherry]

I do share that concern. I really do not understand—others have eloquently made this point—why organisations indulging in lawful activity, such as trade unions and, indeed, other green activists, are required to be infiltrated by these sorts of covert human intelligence sources.

It is all very well to say that there is guidance. I listened carefully and with respect to those who are members of the Intelligence and Security Committee, because I know that they have information that the rest of us do not, but guidance is not good enough; it needs to be in the Bill. We are dealing with a Government who recently made commitments in an international agreement that they now evince the intention to break, so I will not apologise for saying that I do not have much trust in them. I want to see proper protections for civil liberties in the Bill. Without them, the Scottish National party will vote against it.

European Union (Withdrawal Agreement) Bill

Debate between Chris Stephens and Joanna Cherry

Committee stage & Committee: 2nd sitting: House of Commons & Committee: 2nd sitting
Wednesday 8th January 2020 Commons Chamber

[Chris Stephens (Glasgow South West) (SNP)]

Many of those who advanced the leave cause during the referendum campaign said that one of the reasons they wanted to leave the European Union was to do away with workers’ rights and employment rights. Now that many of those people are on the Treasury Bench, the suspicions held by many of us are only going to intensify.

[Joanna Cherry]

Not all, but many Members on the Government Benches have spoken about just the sort of free-for-all on rights that we fear. Of course, this partly comes from the conceit that somehow the United Kingdom—by which they normally mean England—has a monopoly on rights, which is not shared by other countries across the world, including the other countries in the European Union. Unfortunately, the lived experience of working men and women across the United Kingdom is not one of confidence in Governments of the UK to protect them, particularly when those Governments are of the Conservative and Unionist party. That is why they have been so reliant on the jurisprudence of the European Court of Justice, and on directives and regulations passed by the European Union institutions, in which Britain has of course had significant input over the years. My new clauses and the Labour party’s seek to achieve some minimum guarantees in relation to the continued enjoyment of many rights that exist only because of the European Union.