European Convention on Human Rights

Dominic Raab Excerpts

Tuesday 19th June 2012 Commons Chamber

[Mr Dominic Raab (Esher and Walton) (Con)]

It is a pleasure to follow the hon. Member for Hayes and Harlington (John McDonnell), although, unlike him, I welcome this debate and the serious way in which Ministers have identified and targeted the issue of article 8 undermining deportation, especially in relation to foreign national criminals, but also, increasingly, in relation to other elements of our immigration controls. It is worth putting the specific problem of article 8 into perspective. The European convention on human rights was never intended to have any extra-territorial application at all. It was certainly not intended to fetter deportation in any way. That much is very clear from the travaux préparatoires of the convention, all of which are in the public domain.

All of the restrictions have arisen through judicial legislation. Judges in Strasbourg and the UK have stretched existing rights to restrict our capacity to deport. That is contrary to both the separation of powers and basic democratic accountability. It is a serious constitutional matter. It is for elected Members of this House, not unaccountable judges, to decide whether British human rights need to be upgraded from the ones we signed up to in 1950. I should say that, for my part, as a matter of principle and as an elected representative, I support upholding the absolute prohibition on torture. Some will disagree, but I think it is wrong to deport anyone into the arms of a torturing state. On the question of what the right balance might be in terms of deportation and human rights, however, it must be for elected law-makers to decide whether we are going to raise the bar. Politicians can, perfectly respectably, disagree on where the bar should be set, but democrats cannot disagree that it is for legislators to strike that balance.

The fact is that the European Court of Human Rights has been legislating since the 1970s. In the notorious Chahal case in 1996 it was decided that Governments could not deport terrorist suspects if there was a substantial risk of torture in the country to which they were to be returned, but Strasbourg has gone much further. We see new fetters placed on deportation, most recently in the Abu Qatada case. The House will recall that Qatada’s deportation was barred by Strasbourg not because he faced the risk of torture—that was rejected—but because he might not get a fair trial in Jordan. That is a very dangerous precedent. It cannot be Britain’s responsibility to ensure that the justice systems of the world meet British or European standards. Again, it is not for Strasbourg to expand the fetters on deportation through judicial legislation.

[Jeremy Corbyn]

Surely the hon. Gentleman is rather overreaching himself here. This country signed the UN convention against torture, as one of many countries that did so, and it therefore specifically becomes part of UK law and there is precedent for that. So deporting somebody to a regime that does not accept the convention against torture and therefore might torture them would be illegal under UK law, leaving aside what might happen to them when they were sent back.

[Mr Raab]

I thank the hon. Gentleman for his intervention, but he made so many leaps of legal logic that I could not possibly follow them all. The fact is that Strasbourg’s application of a bar on deportation when the individual is at risk of not having a fair trial in their home country is not set out in the UN convention against torture and is not in the European convention on human rights; this is something that Strasbourg, of its own whim, created. The number of appeals by Qatada, at home and in Strasbourg, makes a mockery of the rule of law.

That said, by far the biggest problem we face on deportation arises as a result of the new restrictions under article 8 and the right to family life. If we are being honest, we cannot blame that on Strasbourg, because these are home-grown restrictions; they are a direct result of judicial legislation by UK courts under the previous Government’s Human Rights Act, beyond even the high tide of judicial legislation in case law that has come from Strasbourg. As a result of the Immigration Minister’s direction, the Home Office has produced data showing that 400 foreign criminals a year defeat deportation orders on article 8 grounds. That represents 61% of all successful challenges to deportation orders and this is by far the biggest category.

These cases are not just statistics; they involve real lives. Many shocking cases have been reported in the news, and I wish to refer to just one, that of my constituent Bishal Gurung, a waiter from Esher who was brutally killed by a gang, with his body dumped mercilessly in the river Thames. The perpetrator was convicted of manslaughter and later released. He frustrated his deportation order by citing his right to family life. Let me make it clear: he had no wife, no children and no dependants, yet still he claimed that his family ties trumped the public interest in his deportation. The House can imagine how Bishal Gurung’s family felt about that, and we can imagine what they feel it says about British justice. Now I can at least tell them that the Government and the House of Commons are trying to tackle the problem and reform the law.

[Mr Denis MacShane (Rotherham) (Lab)]

We all encounter cases where members of constituents’ families have suffered as a result of the most brutal crimes and wish the most terrible justice to be placed on those who committed the crimes—if they are British, they of course stay in our courts and within our country. What I am worried about is: what happened to the principle of not visiting the sins of the father on the child? In the case the hon. Gentleman cites there was no family, but in many cases these men have married British women and have sired British children. Do those children and those wives have no right to have a life, after the sentence has expired, with their father and with their husband?

[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.

--- Later in debate ---

[Pete Wishart]

I am grateful to the hon. Gentleman once again because he gives me another opportunity to restate that this is the reality—the things that we have to deal with in our constituency offices day in, day out. Yes, we see the headlines in The Daily Telegraph and yes we are appalled by the actions of some foreign nationals. Yes, such people should be deported, but if we are discussing, as we are this afternoon, the right to a family life, this is the reality—the stuff we deal with day in, day out. That is the stuff that needs the real attention.

Who can forget where all this started? It was the hilarious speech by the Home Secretary at the Conservative party conference when she—I am not making this up—cited the example of a Bolivian man who was allowed to remain in the country because he owned a cat. Of course, the Home Secretary is never one to unleash the cat among the pigeons. That ridiculous story had the Justice Secretary twitching in his Hush Puppies. He said at the time that he was willing to bet it was not true, and he was absolutely right because the Home Secretary’s story unravelled faster than a condemned pasty shortly after her speech.

[Mr Raab]

Has the hon. Gentleman read the case to which he is referring? I do not think he can have because the cat was a relevant factor—not the decisive factor but a material one—in the relationship between the boyfriend and the girlfriend, which was relied on in this case. Has the hon. Gentleman read the case?

[Pete Wishart]

I am grateful to the hon. Gentleman. I have been following his campaign with great interest, but I think he has ruined it totally with that intervention.

[Mr Raab]

Has the hon. Gentleman read the case?