Criminal Law

Damian Green Excerpts

Monday 10th November 2014 Commons Chamber

[Damian Green (Ashford) (Con)]

It is always a privilege to follow my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), with whom I disagree on only one thing: his statement that he enjoys procedural rows more than anyone else. The attendance in the House at the moment suggests that procedural matters can unite the House in ways that, weirdly, the serious matters we thought we were discussing today appear not to have done early on. I speak in the same terms as he has: in the context of strong support for the measures the Government are putting forward today and for the whole of the 35 measures, which is shared by the official Opposition.

On the shadow Home Secretary’s motion that debate be curtailed—that the Question be not put—it is important that some issues that have not yet arisen be discussed before the House decides whether or not to support it. Never having been here for this sort of debate before, I confess that I am not clear whether there is a winding-up speech from the Government. I see, Mr Speaker, that it may not be entirely clear whether or not there is a winding-up speech—I shall take silence to indicate assent. If there is a Government winding-up speech, I would be grateful if the Minister could address the point that has not come up yet: the attitude of the courts to the motion that we pass.

The point has been made by Members on both sides of this House that the motion before us tonight only commits us to legislating on a certain number of the 35 issues. Clearly, that will be a decision for the courts—the courts will enforce that. In the controversy, particularly about the European arrest warrant, there must clearly be the possibility of legal challenge at some stage, perhaps through an application for judicial review. There is always the prospect that what a Minister says at the Dispatch Box is taken as the intention of the Government of the day and has some weight with the court, but clearly it has much less weight than if this House had passed a legislative motion.

I speak with some experience, and with some scars on my back. As Immigration Minister, I was advised by Government lawyers that if we had a debatable motion and said things from the Dispatch Box in the House of Commons, that would entail the courts acting in a certain way on asylum appeals. As it turned out, that was not an effective way to make the immigration and asylum courts change how they operate. Subsequently, the Home Secretary wisely put through primary legislation to allow that to happen.

That experience is analogous to the current situation. Strong supporter as I am of all the motions that the Government wish to opt back into, I wish to know whether they would be fire-proofed against judicial challenge and whether, if we do not pass a motion explicitly opting into all of them, there is any area of ambiguity left that could be exploited by their opponents. It is perfectly clear from the debates that we have already had that the vast majority of Members are strongly in support not only of the motion before us tonight but of what could have been a wider motion to opt into all the elements—[Interruption.] The Opposition Chief Whip seeks to intervene from a sedentary position. I know that it would be improper for her to stand up and do so, but we are living in interesting times and debating unusual things, so perhaps she would like to speak as well.

[Rosie Cooper (West Lancashire) (Lab)]

indicated dissent.

[Damian Green]

Sadly not. There is a serious point for the Government to address. Given the passions that have been aroused and the novel constitutional and procedural territory into which we have now gone, it would be particularly bad if the House went through all of this, presumably passed this motion and came back on another day to do it again, and then discovered that some of this could be challenged or even overturned in the courts at a later date. Assuming that this debate follows the normal course and there are winding-up speeches, I would be grateful if the Minister could address that issue.