Dominic Raab
Main Page: Dominic Raab (Conservative - Esher and Walton)Department Debates - View all Dominic Raab's debates with the Home Office
(10 years, 9 months ago)
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Mr Hanson
I do not share the hon. Gentleman’s judgment on most issues, but that could be looked at. My hon. Friend the Member for Croydon North (Mr Reed) attended discussions yesterday on this matter and we will look at those matters in detail.
We are not the Government today; we are the official Opposition, on behalf of whom I say that we have severe concerns about new clause 15 and about the process and potential implications of new clause 18, but we will reserve judgment on that. The issue of the removal of tribunals is one that we need to address and to delete from the Bill. We need to look at some of the other issues before we give the Home Secretary unqualified support.
After many weeks of discussion, we have an Immigration Bill on which the Government appear to me, as a simple Front Bencher, to be in chaos on some of the key issues on which they will be judged. We must judge the Home Secretary on what she says, but there are real issues that need to be resolved. I would welcome hearing from the hon. Member for Esher and Walton why he believes that his proposal will not breach the ECHR on these matters. With that, I conclude to ensure that hon. Members have an opportunity to contribute.
Mr Dominic Raab (Esher and Walton) (Con)
I wish to speak to new clause 15 and amendment No 62 in my name and that of 105 other hon. Members from across three parties in this House. Subject to the will of the Chair, of course, I intend to press them to a vote to test the opinion of the House.
I welcome the engagement and consultation with officials and Ministers over what has been a two-year period, and with Opposition Members. I think what the shadow Minister said was code that they are going to abstain and I welcome that as well.
Mr Hanson
My gut instinct at the moment is not to support the hon. Gentleman by actually voting against him. I want to hear what he has to say and I also want to hear from the Home Secretary on whether there are further measures that we could jointly take to tackle the curse of foreign criminals not being deported in an appropriate way that meets our ECHR obligations.
Mr Raab
I thank the shadow Minister for his intervention, which was a very elegant way of sitting on the fence again.
The problem with which the new clause and amendments would deal results from the judicial expansion of the right to family life under article 8 of the European convention, which allows serious foreign criminals to evade deportation. It is, I think, common ground that the Strasbourg Court has steadily eroded United Kingdom deportation powers over the past few decades, but the tightest fetters have come from the UK courts as a result— rightly or wrongly—of the Human Rights Act 1998.
Michael Ellis
I admire my hon. Friend and respect his position, but my fundamental concern about his new clause is that it is being described by lawyers—from both the Labour party and the Government, it seems—as a measure that is incompatible with the legislation, will not work, and will actually slow the process down. I want us to deport as many foreign criminals as possible, but will not the new clause make that more difficult?
Mr Raab
I know that my hon. Friend takes a close interest in these matters, and I shall try to address his point very squarely. I urge him to intervene again if he feels that I have not done so satisfactorily, in which case I shall spell out my argument more clearly.
My new clause differs from the clauses in part 2 in that it is mandatory. Serious offenders cannot pull out and wield article 8 as a joker to trump deportation. Unless there is a tangible threat to life or limb, those convicted killers, rapists, drug dealers and other serious criminals should be sent home: they should not remain on the streets of Britain.
I spent a long time crafting and consulting on my new clause. It allows a very narrow exception to the wider automaticity of deportation when that is in the overwhelming humanitarian interests of the children involved, but the discretion is to be exercised by the Home Secretary rather than the courts. The new clause uses a Home Office mechanism, or model, to protect that discretion from human rights challenges by expressly stipulating that the only challenge can be by way of judicial review.
Mark Pritchard
As my hon. Friend knows, I am one of the co-signatories of the new clause. However, the Home Secretary legitimately raised the possibility of unintended consequences should the new clause remove the discretion and flexibility that currently exists in relation to the discretion to deport someone who has been in prison for less than 12 months.
Mr Raab
My hon. Friend has made a perfectly reasonable point, but the new clause is tailored to serious criminals, which is all the more reason for it to be considered reasonable and proportionate. Of course, if the Government wish to insert a provision covering persistent petty offenders—which would be far more likely to attract challenges under article 8, because in the case of less serious offences deportation is more likely to be deemed disproportionate—they will be able to do so. However—it is odd to be attacked for not being tough enough—I think that the main focus should be on those who are jailed for a year or more. That is the model in the UK Borders Act 2007.
Sarah Teather
May I take up a point that I made to the Home Secretary earlier? As the hon. Gentleman knows, people are often trafficked, but the fact that they have been trafficked is not recognised immediately. Such people may have committed crimes while being trafficked, and may have served sentences of more than a year. It seems that, as a consequence of the restrictive nature of the new clause, we would be willing to send those people back to enslavement following the removal of article 4.
Mr Raab
That is an important point, but I think that I can give the hon. Lady some reassurance. If I understood her correctly, she was suggesting that because article 4 would be removed as an excuse for trumping deportation, we could send people home to be subject to slavery or something akin to it. That would automatically be caught by article 3, which covers “inhumane or degrading treatment”. There has never, to my knowledge, been a case in either the Strasbourg or the United Kingdom courts in which deportation has been trumped on the basis of article 4. It would already be covered under article 3, which is very well-trodden ground. I therefore think that her entirely legitimate concern has been catered for, but if she wishes to intervene again, I will give way to her.
Sarah Teather
What about other matters relating to the convention, such as the right to practise one’s religion and the right to a private life in relation to one’s sexuality? Is there not a possibility that people would be sent back to a country where they would be persecuted?
Mr Raab
From the sound of it, I have reassured the hon. Lady on the first point, which is good news. On the second point, a deportation order has never been trumped on those other grounds. The only grounds on which that has happened are article 2 on the right to life, article 3 on the right not to be tortured and article 8, which now makes up the lion’s share. I therefore do not think that that problem would arise. She talked about persecution. Let us be clear that any persecution that threatens life or limb is already caught by the exceptions under articles 2 and 3. I have deliberately preserved those because the hon. Members from across the House who support the new clause and I support the absolute prohibition on torture and inhumane or degrading treatment. If she is really concerned about this focused issue, those exceptions will deal with all those cases.
Mr Jack Straw (Blackburn) (Lab)
Is there not a prior point that if someone has a genuine, well-founded fear of persecution by the state to which they might return, they have a near absolute right to claim refugee status in this country under the 1951 convention?
Mr Raab
I will make a little progress, but I will certainly come back to the hon. Gentleman.
The key difference between my proposals and part 2 of the Bill is that my proposals would deal with the problem. They do not require us to scrap the Human Rights Act or pull out of Europe. To the great chagrin of some of my colleagues, my proposals do not dip their toe into those totemic, polemical matters. They would not be struck down by UK judges, because they would be unequivocal primary legislation with overriding force. They are expressly within the terms of the Human Rights Act. That is spelled out in the memo to which the shadow Minister referred, if he reads it carefully.
We must be clear that incompatibility and illegality are two different things. It is clear that the UK courts would enforce the new clause that I am putting before the House. It is also clear from the most recent Home Office advice that I have received, to which hon. Members have also referred, that the new clause would not attract a rule 39 injunction from Strasbourg. That is because there would be no irreversible harm. It is extremely rare that Strasbourg would even consider a rule 39 injunction in such a case. The original memo that the shadow Minister cited referred to this matter, but the most recent memo from the Home Office team that has been sent to me, which is from November, is very clear:
“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”
Of course, it is likely that if my new clause attracted a rule 39 injunction, the clauses in part 2 would be equally susceptible to such a challenge. That is the key point: the official advice from the Home Office is that such a challenge is very unlikely.
Mr Raab
I will just expand on this point. I have quoted the advice that I have received. If anyone thinks that the new clause has been tabled with the aim of flouting UK law or engaging in illegality, as opposed to doing something that might be incompatible with the wider, opaque obligations of the ECHR, they misunderstand the point. It is wrong to say that that is what the Home Office’s advice states, because I deliberately sought its advice.
Even if we face a longer-term claim to Strasbourg that is not based on injunctive relief, the new clause remains faithful to the convention. We must not forget that for a second. Paragraph 2 of article 8 on the right to family life provides a list of grounds for curtailing the right to family life, including law enforcement, crime prevention, public protection and protecting the rights of others, which is what the colleagues from both sides of the House who support the new clause care so deeply about.
Chris Bryant
I understood the hon. Gentleman to mean that he had sought the same legal advice as the Home Secretary. The Home Secretary said clearly that the Attorney-General had said that new clause 15 was incompatible with the European convention on human rights, but the hon. Gentleman says that he has seen the same advice and that the new clause is compatible with the convention—or have I got that wrong?
Mr Raab
Very briefly, that is not what I was saying. I think that the hon. Gentleman has added one and one and made three. I have received a memo from the Home Office team that sets out the position on rule 39 in relation to article 8 cases. Precisely because of the concerns that are shared across the House, I asked whether we were likely to see a deportation process gummed up by a rule 39 injunction.
Mrs May
If I may, I will make a triaged intervention, Madam Deputy Speaker. To clarify, all I said was that I had received legal advice. It is not the practice for Ministers to say in this House whether legal advice has come from the Attorney-General or from other sources. I am absolutely clear from the legal advice that I received that new clause 15 is incompatible with the European convention on human rights.
In answer to my hon. Friend, the advice from the Home Office is absolutely clear that a rule 39 injunction would be less likely to be imposed where the decision had undertaken a balancing act in considering the issues. That is precisely what the Bill allows. My hon. Friend’s new clause does not allow that. That is why rule 39 would be more likely to be used under his proposal.
Mr Raab
I thank the Home Secretary for her intervention. I have the memo that I received in front of me. I will read from it so that there is no doubt and so that hon. Members can make up their minds. It states that it is clear from the case law that
“it would only be in exceptional cases that an interim measure would be granted in an A8 case.”
It goes on to say:
“I can’t say whether there has ever been a Rule 39 in a UK A8 case, but it is obviously rare.”
It goes on to say, because I was asking the question in relation to the Government’s clauses:
“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”
I do not want to engage in a clash of legal opinions here, although the Attorney-General is free to intervene on me, but I say briefly in response to the Home Secretary that there is nothing in the limited case law of Strasbourg to suggest that the Bill and the new clause that I have tabled are different. One never gets such precision from the Strasbourg Court and I do not think that that is what the Home Secretary meant.
Mr Raab
I thank my hon. Friend for keeping the House updated on that important development.
The key point is that it is clear from the text of the European convention—I have referred to paragraph 2 of article 8—that, under the terms expressly set down by the architects of the convention, the new clause is proportionate. It is proportionate because it applies only to serious criminals who have been imprisoned for a year or more. It therefore ought to withstand any appeal to Strasbourg.
I remind the House that we are not entirely sure how any litigation in Strasbourg on this issue would pan out, whether on the basis of the Bill or the new clause. That is partly because the 47-member-state Council of Europe, to which the Strasbourg Court is accountable, has made two recent declarations in Izmir and Brighton calling on Strasbourg in unequivocal language to meddle less in immigration cases. We therefore have every reason to believe that we will have a greater margin of appreciation in future. I pay tribute to the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for the efforts that he made when he was Justice Secretary to achieve those resolutions, which have paved the way for the new clause.
Mr Raab
I will not give way again, because I have been reasonably generous to the hon. Lady and I want to give other Members an opportunity to speak.
If we are honest, we know that any serious reform in this area risks being frowned on by the Strasbourg Court at some point in the future. The goalposts keep on shifting. That is how we got to this point in the first place. However, the same objection applies to the Bill. As the president of the Supreme Court and the former Lord Chief Justice, Lord Judge, have stated many times, the last word on the balance between human rights and public policy must remain with the UK courts and, ultimately, with elected and accountable law makers in Parliament.
There has been a lot of heady talk about human rights reform. Today, we have an opportunity to do something about it.
Mr Raab
I will not give way because I want to give other hon. Members a chance to speak. I am sure that the hon. Gentleman is one of those who will be queuing up.
New clause 15 and amendment 62 are practical, common-sense proposals that would protect the public, restore some common sense to our justice system and restore some trust outside this place. I commend them to the House.
Mr Straw
On 24 November 2003, a young girl aged 9, Amy Houston, was killed on the west side of my constituency of Blackburn by a man driving a motor car, Aso Mohammed Ibrahim. He was an unfounded asylum seeker with no basis for remaining in the United Kingdom, and at the time of the motor accident had a number of convictions for driving while disqualified and driving without insurance. He received a relatively short prison sentence for causing death by careless driving. Thereafter, he developed a relationship with a woman in my constituency who already had two children by other men. He then went on to commit further offences.
When the Home Office made efforts to deport Aso Mohammed Ibrahim, he resisted them on article 8 grounds. The matter went before a tribunal, which found in his favour. I was Justice Secretary by that time, and I spoke to the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), who ensured that a vigorous appeal was mounted in respect of that tribunal judgment. A new appeal was established, but that too was lost. Principally, it was lost on the ground not of Strasbourg law but of the way in which the British courts had widened the basis of article 8 beyond that of Strasbourg in order to protect individuals in this situation.
Knowing far more about the background of the case than ever went before the tribunals, my opinion was—and remains—that that man had abused his position in this country and set out to develop a relationship with a woman and have children with her solely in order to evade deportation and immigration controls. It is a matter of regret to me and to my right hon. Friend the Member for Kingston upon Hull West and Hessle that the courts appeared to endorse his wilful decision to evade those controls.
It is for those reasons that I, and those on my Front Bench, strongly support the amendments to the law that appear in clause 14 of the Bill. I have great regard for the hon. Member for Esher and Walton (Mr Raab), and I have talked to him at considerable length about the merits of his new clause. I am also listening carefully, as I said I would, to the debate today. I have no difficulty with seeking to direct the British courts towards a different conclusion from that towards which they are currently directed by the higher domestic courts in this country. That is also the purpose of clause 14.
I do have a problem, however, with the House knowingly deciding to legislate in a way that the best advice suggests would be incompatible with convention rights. That is because I am a strong supporter of the European convention on human rights. If the House wishes to decide to leave the convention, or to abrogate individual parts of it, it should seek to do so explicitly, rather than through an amendment of this kind. I accept that the hon. Gentleman has thought carefully about this matter, but it is with regret that I shall be unable to support his proposal today.
I also want to say a few words to those who think that this is all about the Human Rights Act. I was the Minister responsible for the Act, and I am proud of it. I hope that I will not cause the Attorney-General, the right hon. and learned Member for Beaconsfield (Mr Grieve), too many blushes if I say that I remember his courageous maiden speech in the House, in which he spoke out in favour of the Human Rights Bill, as it then was. Those on his Front Bench voted against the Bill on Second Reading, but by the time we reached Third Reading they had come round and wished the Bill well.
Mr Raab
On this point of the legality, it is clear from how the Human Rights Act has been drafted that, where there is an incompatibility, ultimate sovereignty remains with Parliament and the Government. Therefore, the issue of illegality is separate from incompatibility. Given all the points that the right hon. Gentleman has made about the opacity, the shifting goal posts and the difficulty of nailing down the case law in Strasbourg—it does not have a doctrine of precedent—does he also agree that, for all the talk of Government legal advice, it is almost next to impossible, unless one is giving defensive and cautious advice, to give clear and focused advice on where Strasbourg will go, let alone where it is currently at?
Mr Straw
There are some instances where it is obvious, and some where it is less obvious. The hon. Gentleman is correct to say that even if a judgment is made by the Attorney-General, and indeed if the declaration is made by the British courts of incompatibility with the convention rights, section 4 of the Act makes it absolutely crystal clear that those provisions remain in force. That was part of the elegant architecture of the Human Rights Act. The role of the Parliamentary Counsel was to ensure that parliamentary sovereignty over individual legislation was maintained. The problem of the hon. Gentleman—as he knows I really wanted to support his position—is that the Home Secretary has a duty under section 19 of the Act to say whether or not the provisions in the Bill as it goes forward are or are not compatible with the convention.
I once signed a certificate saying that a particular Bill was not compatible with the convention, and Parliament still passed it. None the less, it does create difficulties. We cannot suddenly, on a wing and a prayer, say, “Well, in five years’ time, this will end up before the Strasbourg Court.” It is something that will come before Parliament at the next stage of this legislation.