Immigration Bill

Geoffrey Cox Excerpts

Thursday 30th January 2014 Commons Chamber

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

But does the Supreme Court have any option but to follow Strasbourg, where there is a clear authority in Strasbourg? It knows that the case will then go to the Strasbourg Court, that its decision will be disapproved and that a contrary decision will come from Strasbourg. So, where there is a clear line, the Supreme Court has to follow Strasbourg in that way.

[Mr Straw]

With great respect to the hon. and learned Gentleman, the occasions on which the judgments of the Strasbourg Court are absolutely clear and on the point are extremely infrequent. It would also be unusual for a case to get that far if a case in Strasbourg was four-square with an incident case in the British courts. What would be the point of taking such a case that far?

[Mr Cox]

Prisoners’ rights?

[Mr Straw]

We do not want to get drawn down that particular rabbit hole, but the case of Hirst makes my point. For the avoidance of doubt, if the hon. and learned Gentleman reads the original judgment in that case, he will see that it involved such uncharted territory that at least five of the senior judges in the Strasbourg Court found in favour of the United Kingdom Government and not in favour of the criminal, Hirst. I also say to the hon. and learned Gentleman that if he follows a whole series of lectures given by very distinguished jurists in this country from Lord Hoffmann through to Lord Judge, he will see that there has been a strong current of opinion among our high judiciary against the views that are being taken by the Law Lords and the Supreme Court. Happily, I have summarised those in the second lecture I gave in the Hamlyn series in 2012, and I will send my notes to the hon. and learned Gentleman.

There is a serious issue that we need to put right to ensure that, in future, greater flexibility is given to the British courts. Yes, of course the courts have to apply the convention, which was the point made in the articles; that is made absolutely clear under section 2 of the Human Rights Act. As for the degree to which the courts apply the Strasbourg jurisprudence based on those convention articles, they need to take account of it, but not follow it. It is very important that our courts get back to the intention of this Parliament in 1998 when it passed the Human Rights Act. Had they done so, Aso Mohammed Ibrahim would not still be in this country. The problems we ran into there were not in respect of the convention of the Strasbourg Court or of the Human Rights Act, but in respect of the way in which article 8 had been interpreted by our own courts. It is my earnest hope that clause 14 will lead to some change in that.

--- Later in debate ---

[Mr Cox]

I intend to address new clause 15. It is an iron and inescapable consequence of new clause 15 that it would put this House and the Government in complete breach of their obligations under the European convention on human rights. My hon. Friend the Member for Esher and Walton (Mr Raab) has not sought to deny that, but seeks to suggest that whatever this House passes it would, none the less, be lawful as a question of domestic law—of course, in that respect he is right. The question is whether we should knowingly legislate in direct and conscious breach of our international law obligations. In my judgment that is not consistent with the dignity of this House. The right way to approach an international obligation with which we have a legitimate dispute is to take an axe to the root cause of the problem, and not continually to worry away like a dog gnawing at its own tail in frustration at the problem. The root of the problem lies in our adherence to the convention, and we cannot seek to avoid it or to play fast and loose with it in the way that new clause 15 does. In considering their votes in relation to new clause 15, I urge my hon. Friends to ask themselves whether it is consistent with the dignity of this House to legislate consciously and knowingly in contravention of obligations that we have solemnly undertaken.

If I thought that my hon. Friend’s clause would practically have a benefit that I could measure and see as rational and logical and likely to achieve the cause that he and I both support, which is a radical revision of our relationship with the convention, then I might indeed, even then, consider supporting it, but it will not work. It is doomed to fail, as inevitably it will when it reaches the Strasbourg Court. We cannot exclude from the operation of the entire convention, with the exception of two articles, the actions of the Secretary of State, who is a public authority. Nothing could be more clearly in direct contravention of our obligations than to say that she may act in violation of a human right. Of course, the courts in this country will declare it to be incompatible and the courts in Strasbourg, armed with that declaration of incompatibility, will unquestionably also declare it to be incompatible and in breach of our obligations.

What is the answer? The answer is that devised by my right hon. Friend the Secretary of State: a careful, measured, balanced set of provisions that might just—although I have my reservations even about them—escape the scrutiny of the European Court of Human Rights. In doing so, they would achieve the end that each and every one of my colleagues on the Conservative Benches wishes to see achieved, which is that these criminals are sent home rather than finding a ready resort in the Court of Strasbourg as they would under the new clause proposed by my hon. Friend the Member for Esher and Walton, under which the statute would be struck down and the individual cases would eventually have to be reviewed by the domestic courts.

My hon. Friend’s cause is noble and valiant, but doomed, and I urge my hon. Friends, while approving the motivation behind his new clause, to vote against it.