Safety of Rwanda (Asylum and Immigration) Bill

Geoffrey Cox Excerpts

2nd reading
Tuesday 12th December 2023 Commons Chamber

[Yvette Cooper]

I will make some progress, and then I will give way to the right hon. Member.

The problem is that, even as the Bill stands, it risks breaking international law, and that makes it harder to get further returns agreements and to get the further security co-operation that we need with our nearest neighbours. It is also why, if the One Nation group supports it, that puts its members in a pretty impossible position. Clause 1(5) says that a safe country is

“a country to which persons may be removed…in compliance with…international law”.

Clause 2(1) says:

“Every decision-maker must…treat…Rwanda as…safe”,

even if it is not. So even if Rwanda does what it did over the Israel-Rwanda deal and breaches international law and sends people back for refoulement, even if Rwanda introduces new policies to send people abroad, even if there is a coup in Rwanda, even if Rwanda fails to stop organised gangs moving people to the border, even if asylum seekers are shot at in Rwanda—all things that the Supreme Court found had happened in the past—and even if the treaty is designed in good faith, if it fails, the Government are still saying that British courts cannot consider the facts.

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

Will the right hon. Lady give way?

[Yvette Cooper]

I will give way. I did promise to give way to the right hon. Member for Middlesbrough South and East Cleveland (Sir Simon Clarke), and I will come back to him in the moment.

[Sir Geoffrey Cox]

Is there a fundamental difference between the Government deeming Rwanda safe and the Labour Government, as they did in 2004, deeming a whole list of countries safe in precisely the same way and with precisely the same legislative technique?

[Yvette Cooper]

The right hon. and learned Gentleman knows that that is not the case, because what the Government have done is both to deem and to remove any capacity for the courts to consider the facts.

We can see how absurd even Government figures think this is. The Home Office’s legal guidance, published yesterday, quotes legal judgments. One says that

“the court should not shrink from applying the fiction created by the deeming provision”.

Another states:

“The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries”.

The mind does indeed boggle. The problem for the Home Secretary and the One Nation group is that, even as it stands, the Government are effectively admitting that they are creating legal fictions. They are saying that rather than following the facts, the courts will have to follow those fictions instead, for the sake of a tiny scheme that costs not just £300 million, but possibly £400 million. It also sets a precedent.

[Sir Geoffrey Cox]

rose—

[Sir Simon Clarke]

rose—

--- Later in debate ---

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

In defending the Bill, which I will attempt, one has to reckon with those who think that it goes too far, or may go too far, and with those who think it goes not far enough. Let me first address those who think that it goes too far, of whom the right hon. Member for Kingston upon Hull North (Dame Diana Johnson) is an example.

The Bill is criticised on the basis that it deems Rwanda to be safe. It is said that that is an illegitimate legal technique. It is said that it perpetuates, or perpetrates, a fiction in law. That is precisely the same fiction that the Labour Government adopted in the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

[Sir Chris Bryant (Rhondda) (Lab)]

No.

[Sir Geoffrey Cox]

Yes, it is. It was changed two or three years later, but in the Nasseri case before the Appellate Committee of the House of Lords, their lordships upheld, as a matter of law, the deeming of countries to be safe and within the law. Indeed, they went on to say—Lord Hoffmann being one of them, I think—that while Parliament deemed it such, there were plainly risks if the Home Office did not keep an eye on the state and conditions in the countries that were thus deemed, but otherwise it complied with the law and the courts would respect Parliament’s decision.

What is being said in this case is that a Supreme Court decision has already held Rwanda not to be a safe country for the purposes of the guarantee against refoulement. It is said that for this House to overrule the decision of the Supreme Court in such an individual case is constitutionally undesirable and contrary to fundamental constitutional principle. I do not agree with that analysis. First, it is open to this Parliament at any point to take steps to reverse the effect of a judicial ruling—that is the consequence of parliamentary supremacy. It is clear that Parliament should be restrained in doing so in cases, for example, where individual rights in a case to reverse a determination made in favour of an individual would plainly be contrary to fundamental constitutional principle, but that is not what we are doing here. We are seeking to do precisely what the Labour Government did in 2004. We are saying that Parliament, legitimately weighing the evidence, has concluded that Rwanda will not engage in the refoulement of those sent to it. That is something the courts have already accepted. It is something that it is open to this House to do, and it is something that, in my judgment, it is perfectly legitimate for Parliament to undertake. It would be different if it were to reverse a decision against an individual.

But even if I am wrong about that, and even if as a matter of constitutional convention it were undesirable for this House to reverse the effect on a question of principle—namely, whether Rwanda is safe for the purposes of refoulement—the facts have changed. There is now a binding treaty, and it is binding not only in international law but in domestic Rwandan law. My hon. Friend the Member for Stone (Sir William Cash) has rightly analysed the situation of international law. In this country we have a dualist jurisdiction where treaties are not self-executing, but in Rwanda the treaty is self-executing, so it will be binding on the Rwandan Government not only as a matter of international law, but as a matter of their own law.

That treaty contains a range of important safeguards, including, as a longstop, the fact that no individual removed to Rwanda from this country can be removed to a third country without the consent of the United Kingdom. If that longstop is in place, if the treaty is binding in Rwandan law and if it is binding, as it is, in international law, then I would suggest that there is simply no credible risk of refoulement if treaties and legal rules mean anything in the United Kingdom and in Rwanda. If the risk of refoulement has been removed, then there is nothing inappropriate in this House determining, as the Labour Government did in 2004, that Rwanda is safe for the purposes of refoulement. So I say to the House that this is appropriate, and it is a judgment that we can make as a House to take the step that we are now taking.

[Joanna Cherry]

Will the right hon. and learned Gentleman give way?

[Sir Geoffrey Cox]

I cannot give way; I do not have time.

Let me move to the third and most important question, which relates to the exclusion of access to courts. This Bill carefully preserves the right of individuals to come to court in extreme cases of individual justice. I listened, impressed, to my right hon. Friend the Member for Newark (Robert Jenrick), and I submit to those who think the Bill goes far enough that we cannot sacrifice the principle of access to a court. If we eliminated it entirely, not only would the Bill collapse because it would be interminably impeded in the House of Lords, but it would probably lead to the Rwandan Government withdrawing; and it is conceivable that the courts could entertain, for the first time, a complex challenge about the right of this Parliament to do away with fundamental constitutional principles such as access to a court. The supremacy of this House does not necessarily mean that it does not operate within a complex system of constitutional institutions, each of which has its own place as a component part in that system.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Sir Geoffrey Cox]

No, I cannot give way; I simply do not have time.

Constitutional principles compete in creative tension. Parliamentary sovereignty is the most important of them, but there are others that are fundamental and one of them is access to a court in extreme cases. That is what this Bill preserves. I say to my right hon. Friends that I understand their frustration and their deep, intense dissatisfaction with the current situation; I share it. I think that there is tightening that we could do, particularly on rule 39. But on the preservation of the right to go to court in an extreme case, I say that is part of the British constitution that our fathers and our party have supported, and for which they have fought, for generations, and it would be wrong of us to compromise on that—

[Mr Deputy Speaker (Sir Roger Gale)]

Order. I am sorry to have to interrupt the right hon. and learned Gentleman, but he is fully aware that we have to stick to the time limit. After Sir George Howarth, whom I shall call next, I am afraid that, given the number of hon. Members who wish to participate, I shall have to reduce the time limit to six minutes.

Illegal Migration Bill

Geoffrey Cox Excerpts

Report stage
Wednesday 26th April 2023 Commons Chamber

[Robert Jenrick]

I will not give way to the hon. and learned Lady a second time, if she does not mind. We have been very clear that we take our treaty obligations seriously. In respect of the ministerial discretion in the clause, the Home Secretary, or whichever Minister of the Crown exercised that discretion, would of course take those obligations seriously and judge the individual case.

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

Is my right hon. Friend not in effect asking the House to give legislative sanction to at least the possibility that a Minister of the Crown will deliberately disobey this country’s international law obligations? Is not that really the effect of what is being asked?

[Robert Jenrick]

No. As I have already said, we take our treaty obligations very seriously and the Minister who exercises this discretion would have to do so. This discretion would be exercised highly judiciously and would ultimately be judged on the facts and be very fact-dependent.

[Joanna Cherry]

rose—

[Sir Geoffrey Cox]

Will my right hon. Friend give way on that point?

[Robert Jenrick]

I am not going to give way to the hon. and learned Lady. I will give way one last time to my right hon. and learned Friend; then I must make some progress.

[Sir Geoffrey Cox]

A Minister always has the ability to ignore an indication under rule 39, because there is no obligation under the convention for the Government to heed one—it is an indication. Why, then, does it need legislation if what is not in fact being asked is that this House should approve, quite consciously and deliberately, a deliberate breach of our obligations under the convention? That is the truth. The Minister could ignore an indication and it would be a matter between states, but the provision invites this House to give legislative authority to the Minister who does that, if she chooses to ignore it. Is that not the position?

[Robert Jenrick]

My right hon. and learned Friend is correct in saying that rule 39 indications are just that, and that there are circumstances in which Ministers have chosen not to apply them—a small number of circumstances, but a number. The clause does not mandate a Minister to ignore rule 39 indications; it says clearly, to ensure that there is no doubt whatsoever, that the Minister has the discretion to do so. It gives a non-exhaustive list of reasons that they should consider, and in doing so they would clearly, as I have said on a number of occasions, take their treaty obligations very seriously.

Let me move on. As I have said, the Bill provides for two kinds of suspensive claims and sets out a fair but rigorous timetable for the submission of any claims, their determination by the Home Office, and any appeals. It is important that those who receive a removal notice should be able to receive appropriate legal advice to help them to navigate this process; accordingly, new clause 20 makes provision for legal aid. I trust that this new clause at least will be welcomed by the hon. Member for Glasgow Central, given that it covers similar ground to her new clause 18. The provision of legal aid will reduce the opportunities for challenges and speed up removals.

On serious harm suspensive claims, new clause 17 augments the existing provisions in clause 38, which enables regulations to be made about the meaning of serious and irreversible harm for the purposes of the Bill. We consider it important, and indeed helpful to the courts, to provide them with guidance as to what does or does not amount to serious and irreversible harm, albeit that ultimately the judgment will be for the upper tribunal, to be taken on a case-by-case basis. New clause 17 also makes it clear that the serious and irreversible harm must be “imminent and foreseeable”, which aligns the test in the Bill much more closely with Strasbourg practice.

Amendments 114 to 119 relate to foreign national offenders. In the Nationality and Borders Act 2022, we legislated to disapply certain modern slavery protections to FNOs who have been sentenced to a term of imprisonment of 12 months or more, and to certain other categories of persons who present a risk to public order. The amendments introduce a statutory presumption that the public order disqualification applies to FNOs who have been given an immediate custodial sentence of any length.

Economic Crime and Corporate Transparency Bill

Geoffrey Cox Excerpts

Report stage
Wednesday 25th January 2023 Commons Chamber

[Sir Robert Buckland]

I think that there are two things: time and capacity. I do not criticise officials. I have never believed in doing so: it is a bad Minister who blames their officials, just as a bad workman blames his tools. Officials have a lot of work to do under immense pressure, and obviously they want to get it right. I want to get it right, too—we all do—but the Bill might be our last chance to do so in this Parliament. My goodness me, if we cannot get it right here, the Government are really going to have to get it right in the other place.

Let me deal further with the identification doctrine. Opposition new clause 40, which is very well worded, alludes to the US concept of respondeat superior. In effect, it is a wrap-all approach to vicarious liability that captures the acts or omissions of even very junior members of a corporate, which can lead to that corporate being liable. In some ways that has proved advantageous to prosecutors in the US: they have been able to identify more junior officials in corporates and, in effect, get them to co-operate with the authorities, which has opened up evidence that might not otherwise have been available.

The Law Commission looked at that approach. It also looked at what I might call the corporate culture approach in Australian Commonwealth law, and at Canadian legislation on the acts and mental states of senior managers. The Law Commission said—rightly, I think—that neither the US approach nor the Australian approach would be right for our jurisdiction.

The wording of my new clause 5 reflects the Law Commission’s recommendations in two ways. First, as the Law Commission’s report sets out, it would allow conduct to be

“attributed to a corporation if a member of its senior management engaged in, consented to or connived in the offence.”

Senior management is defined as

“any person who plays a significant role in the making of decisions about how the whole or a substantial part of the organisation’s activities are to be managed or organised, or the actual managing or organising of the whole or a substantial part of those activities.”

We have taken the Canadian approach.

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

I draw the House’s attention to my entry in the Register of Members’ Financial Interests.

I am intrigued by and have a great deal of sympathy with my right hon. and learned Friend’s amendments. As he knows, we discussed the issue when we served as Law Officers together. In the light of the Law Commission recommendation from which he has just quoted, I wonder why his new clause 5 includes the

“neglect of a senior manager.”

It seems conceptually a rather odd proposition that a fraud could be committed by neglect. The Law Commission did not go that far. Why has my right hon. and learned Friend included that provision?

[Sir Robert Buckland]

That is a fair question. What I seek is to tease out from the Government the juxtaposition with the money laundering regulations. My right hon. and learned Friend will remember my making mention of regulation 92 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017, which uses the word “neglect”. To be frank, I think that there is a problem with that, but it is important for us to tease out from Ministers a way to find a wording that is comprehensive.

[Sir Geoffrey Cox]

I have enormous sympathy with my right hon. and learned Friend, who is doing the House a service by bringing these amendments to its and the Government’s attention. However, is it not reasonable—Opposition new clause 40 has this purpose in mind as well—that there should be quite a detailed consultation within the financial services industry and among any other commercial organisations that might be affected? New clause 5’s use of the word “neglect” creates an extraordinarily broad possibility for the application of the criminal offence.

I know what my right hon. and learned Friend is doing, and I applaud it. However, it seems to me that it is reasonable to require of the Government that they get it right, but, as the right hon. Member for Birmingham, Hodge Hill (Liam Byrne) said, that must not become an excuse simply to say “mañana” and kick this into the long grass.

[Sir Robert Buckland]

I am always grateful to my right hon. and learned Friend; I greatly enjoyed our time working together as Law Officers, and I yield to no one in my respect for him. He is right to make that point. I think I couched my remarks in a way that was faithful to the Law Commission’s options, which say that the Government do not necessarily have to do it all—there is a choice here, potentially. On a wider basis, I think that the identification doctrine needs to be looked at. There could be an opportunity for further refinement, perhaps in the other place, and for provision to be made that refers specifically to the offences that I list in new clause 5.

Let me take my right hon. and learned Friend’s point in the spirit in which he made it, and build on it. New clause 5 includes the specification in Law Commission’s option 2B that an

“organisation’s chief executive officer and chief financial officer would always be considered to be members of its senior management.”

We have sought to be faithful to option 2B.

Unaccompanied Children (Greece and Italy)

Geoffrey Cox Excerpts

Thursday 23rd February 2017 Commons Chamber

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

Some 30,000 unaccompanied children entered Greece and Italy last year. Are we simply to leave them there, while this great country, which for hundreds of years has had a tradition of offering asylum to those fleeing persecution, stands back and washes its hands of their fate? I do not believe that it is in the interests of this country, of its international reputation or of its moral sense of self-worth and dignity for us simply to stand back and say, “That is not our problem—it is yours.” I completely accept that great work has been done in the region to assist those who are in such a plight, but I do not believe that we as a nation can afford the damage to our reputation that is currently happening throughout Europe, because we are being seen to fail and fall down in the obligations—modest as they are—that we have undertaken, in international law and otherwise, to assist with the plight of unaccompanied children in Europe.

As I understand it, the Dublin regulation requires us, as a matter of law, to deal in the first instance with any application for asylum that is made by a child who has family receiving international protection in this country. That is an obligation under international law. It is incumbent on us, incumbent on this House and incumbent on the Government to ensure that that obligation is not simply paid lip service to, but is made practical and effective. That can be done only if we reach out to those tens of thousands of people in Greece and Italy and if we look actively to find those who are entitled to be here under international law and whom the Government, on behalf of this House and the nation, have promised to deal with because it is our obligation.

I fear for the reputation of this country when it assumes an obligation and does not provide the means to realise it.

[Fiona Mactaggart (Slough) (Lab)]

The hon. and learned Gentleman is making an immensely powerful speech. Does he agree that it is not just our legal, but our moral obligation to give refuge to refugees? That is one of our best defences against the tyrants, the bullies and the terrorists who oppose the values that Britain stands for.

[Mr Cox]

I agree with the right hon. Lady, but let us leave aside arguments of conscience and compassion. Let us concentrate on our legal obligations. I say that to the hon. Lady not because I disavow or seek to reduce the importance of the moral arguments, but because moral arguments do not always appear in the same light to everybody.

The arguments about the push and pull factors that are sometimes used surround the problem with what I understand are difficult equations and judgments about the practicalities and complexities of whether we should take children or not. But sometimes we can surround a problem with a web of complication. Sometimes, I would prefer to be a fly than a spider, and the plight of the child is one example. The plight of a child transcends the complexities of push and pull factors.

Nobody is suggesting for a moment that we should take every single one of the 30,000 children a year who enter Greece and Italy. All that the Dubs amendment meant was that we should take a modest few. Those of us on this side of the House who voted for that amendment believed that we would take a modest few, but we did not believe that it would be only 350.

Let me return to the question of our obligations. It is not in the interests of our reputation as a country to be seen to be a nation parsimonious and mean-spirited in the fulfilment of an obligation. We should have in Greece and Italy now not only the valiant single lady, Miss Malahyde, who seems to be doing tremendous work—dozens of Home Office officials should be actively searching for the children whom it is our legal obligation to find and process.

[Mr Burrowes]

The dispiriting and depressing issue is that back on 21 April, the then Minister for Immigration explained that

“The teams we send to Greece will include experts in supporting vulnerable groups, such as unaccompanied children and those trained to tackle people trafficking. This will help ensure that vulnerable people, including children, are identified and can access asylum procedures as quickly as possible.”

Now we hear from the Red Cross that it is taking 10 months to process a child’s case. It is our legal and practical responsibility to have ensured that those 75 experts were about protecting the vulnerable, not getting rid of them through to Turkey.

[Mr Cox]

I completely agree with my hon. Friend. It is our duty to process the children and to deal with those who have connections and family in this country.

[Mr Bone]

Will my hon. and learned Friend give way?

[Mr Cox]

No, I must make progress, given the time.

It is our duty to find those children, and I do not accept for a moment that a single person is sufficient to make our obligation effective.

I agree with my hon. Friend the Member for Enfield, Southgate (Mr Burrowes) that we should be doing much more in Greece and Italy—not, I repeat, to take many tens of thousands of children, but simply to interpret our legal duty according to the spirit and manner in which this country ought to be interpreting it: making it real, practical and effective. It is the cruellest of charades to acknowledge an obligation and not to carry it out with a full heart and a full sense of responsibility.

I say to the Minister from his side of the House: let him not think that all of us on the Government side—and I do not believe, properly interpreted, many of us—would feel that we should stand aside and do nothing for those children who arrive in Greece and Italy. I do not believe that that is our party’s approach to this problem.

I ask the Minister to do more for those children in Greece and Italy and make practical and effective our obligations under international law—whether under Dubs or Dublin. We need to be seen to do more. The plight of a child, wherever they are—in Europe or the middle east—is much more important morally and legally than the kinds of arguments sometimes deployed about pull and push factors:

“Suffer the little children, and forbid them not, to come unto me”.—[Applause.]

[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Many Members want to get in. I cannot have everybody clapping, otherwise we will not get to the end—there are too many good speeches.

Policing and Crime Bill

Geoffrey Cox Excerpts

Ping Pong: House of Commons
Tuesday 10th January 2017 Commons Chamber

[Sir Gerald Howarth]

The whole House listened with great respect and interest to my hon. Friends the Members for Cheltenham (Alex Chalk) and for Gloucester (Richard Graham), who have brought to the attention of the House and the country the appalling consequences of stalking. I join others in saluting their efforts to persuade the Government to recognise the gravity of the crime and in reaching this result tonight, which we can all applaud.

I thank the hon. Member for Rhondda (Chris Bryant) for mentioning my intervention on the Minister about section 40 and Lords amendment 24. I will not vote for the amendment tonight, because the Government have agreed to a consultation, and I think it right that that process run, but as I said to the Minister earlier, I hope that the Government will not be intimidated by the campaign by the newspapers that the hon. Gentleman referred to. The newspapers seem struck by an extraordinary sense of paranoia and a feeling of vulnerability, when we all know, from the many cases that have appeared, that they are in the driving seat and have power without a lot of responsibility.

Insufficient attention has been paid to the Leveson inquiry and the subsequent report, which was a detailed and considered piece of work. We should do what the then Prime Minister, David Cameron, said that Parliament should do. Since the Aldershot News & Mail was unwilling to publish my article today, perhaps I can give the House the benefit of it.

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

My hon. Friend should place a copy in the Library.

[Sir Gerald Howarth]

My hon. and learned Friend suggests that I put the article in the Library, but when he hears what I have to say, I think he might be better informed, if not wiser, for I cannot account for his wisdom—he is a great man.

--- Later in debate ---

[Sir Gerald Howarth]

I agree with the hon. Gentleman’s point.

I was mentioning the five royal commissions and inquiries since 1945. The article continues:

“Time and again, reports threatened new laws if the industry failed to sort itself out, time and again the industry failed. In his 1993 report, Sir David Calcutt, QC said of the then regulator, the Press Complaints Commission: ‘It is not...an effective regulator of the press...It is, in essence, a body set up by the industry, financed by the industry, dominated by the industry, and operating a code of practice devised by the industry and which is over-favourable to the industry’.

In 2012, Leveson recommended that newspapers should continue to be self-regulated and that the Government should have no power over what they publish. However, he also proposed a new press standards body created by the industry with a new code of conduct. The new self-regulatory body should be underpinned by a law to provide for a process to recognise the new body and ensure it meets certain requirements. It should also enshrine in law a legal duty to protect the freedom of the press and to ‘provide a fair, quick and inexpensive arbitration service to deal with any civil complaints about its members’ publications’. Ofcom should act in a verification role to ensure independence and effectiveness.”

There we have it. There is a proposal on the table that IPSO is perfectly at liberty to take up in respect of a cheap arbitration service. The other point is that it should not be dominated by former press people, but that is exactly what IPSO is all about. I am not specifically advocating IMPRESS, but I see no reason why IPSO should not be able to organise itself in such a way that it is compliant. Instead, it has set up a body dominated by former editors, which does not meet the Leveson conditions. The Government are right to consult, but I really do not believe that the newspapers have anything to fear from these proposals. I believe that they will be in the interests of the press but, above all, they will provide a remedy for those who cannot afford to seek a remedy. Surely our responsibility is to remedy injustice.

[Mr Cox]

My hon. Friend knows how much I return his respect, and he knows that I would normally regard him as an infallible guide to almost everything in the planet, but in this instance I think that suggesting that IPSO is dominated by press editors when its presiding spirit is Sir Alan Moses—Lord Justice Moses, a very fine judge who is vigorously and fiercely independent—is over-emphasising the point.

[Sir Gerald Howarth]

I am grateful for my hon. and learned Friend’s belief in my infallibility, and I assure him that he should not be misguided, because I am infallible in this instance as well. Let me respond to his point by saying that although there may be an eminent judge in the driving seat, the fact is that the membership is dominated by press and former press people. They are in the majority.

Investigatory Powers Bill

Geoffrey Cox Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

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

rose—

[Mr Speaker]

I will call Mr Cox briefly, but I wish to call the Minister no later than 10.50 pm.

[Mr Cox]

I shall be very brief, Mr Speaker, and I am grateful to you for calling me at this late hour. I wish to address clause 25 and legal professional privilege. In what circumstances, other than the iniquity exception, will legal professional privilege be overridden? In introducing his remarks, the Minister said, I think, that there was some margin where legal professional privilege could be overridden, even where the iniquity exception did not apply. That would be a radical and fundamental change to the legal protection given to the privilege of those conversing with and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the Minister’s mind, and how would that square with current legal authority on the subject?

[Mr John Hayes]

I only hope that your earlier remarks about my style, Mr Speaker, can be matched by my substance.

Let me deal with the last contribution first. My hon. and learned Friend the Solicitor General made it clear that these are matters of continuing consideration, and further discussions are to be held. My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) is right to say that we have not yet got to where we want to be, but I understand the weight and significance of his remark about limits on privilege, which will certainly be included in any consideration that we make following those discussions. I do not want to anticipate those discussions tonight, but, as the shadow Secretary of State recommended, we will engage in them without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect legal privilege.

A number of Members on both sides of the House emphasised the importance of the Bill per se. It is important because it provides law enforcement and security and intelligence agencies with the powers they need to keep us safe, and it does so in a way that makes those powers transparent, while also adding to the checks and balances that are vital in the defence of private interest. It therefore radically overhauls the way in which such powers are authorised and overseen, in particular through the introduction of the double lock for the most sensitive powers. This is a radical change—perhaps the most radical change of modern times in these matters.

The Bill also ensures that these powers are fit for the digital age. As the Chair of the ISC, and others, have said, much of what is done now arises as a result of a series of pieces of legislation that I suppose one could call reactive. They were consequent on the need to provide those who are missioned to protect us with what they require to do so. The Bill draws those powers together and makes them more comprehensible and transparent, which adds to the oversight and safeguards that make up the checks and balances I have described. This is an important Bill, and it is therefore important that we get it right.

That brings me to my second substantial point, which is about the spirit of our consideration. This debate has been conducted in a way that I think does credit to this House, and that is largely—it is unusual to hear a Minister say this, so I wish to emphasise it in the style that you recommended earlier, Mr Speaker—due to the Opposition. The Opposition make choices about how they scrutinise the Government, how they hold the Government to account, and how they deal with legislation on the Floor of the House and in Committee. Those judgments are fundamentally important, not only for the health of the House and our democracy, but for the interests of our people. The Opposition and the Government have worked together on the Bill. If that causes pain to the right hon. Member for Orkney and Shetland (Mr Carmichael), so be it, because if we end up with a Bill that is better than it started—and I believe we will end up with a Bill that is considerably better—I take the view that we have done our job as well as we could reasonably be expected to do it.

To that end, as we have said a number of times this evening, we continue to look at these matters. Clearly, the House of Lords will want its say—it is right that it should—and will contribute to further scrutiny, but the spirit that has imbued all we have done until now is important in a Bill that, frankly, any Government of any colour would have introduced, not just because there is a sunset clause on previous legislation, but because the Government know that it is necessary for the powers to be updated so that they are fit for purpose, and for the safeguards to be updated in accordance with that.

Let me deal with some of the specifics—I want to save sufficient time to deal with the salient issue of trade unions, which the shadow Secretary of State spoke about with such passion. Modifications were mentioned by both Opposition and Government Members. It is important to emphasise that the Government have considered the concerns raised in Committee—that point was made by my hon. Friend the Member for Stevenage (Stephen McPartland), Opposition Front Benchers and others.

As a result, we have introduced a number of significant amendments to make it clear that a warrant against a single person cannot be modified into a thematic warrant; to require all major modifications to be notified to a judicial commissioner; and to ensure that the Wilson doctrine and legal professional practice safeguards apply to urgent modifications, so that the double lock, with all that that suggests, applies too.

Those amendments are responses to matters raised in Committee, to ensure that the warranting system is consistent. I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow. We have made those changes but, as I have said, we are happy to consider those matters carefully—I have heard what has been said tonight by Members on both sides of the House about what more might be done.

The hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others have made the argument repeatedly that more should be stated in the Bill. That is what the manuscript amendment does. On that basis, I am grateful for the comments made by the shadow Secretary of State and the shadow Minister in welcoming the amendment.

My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled amendments on behalf of the Intelligence and Security Committee. Amendments 15 to 17 would add another condition to clause 45, which provides for circumstances in which a telecommunications operator may intercept communications in response to a request made by the international agreement. The additional condition would require that interception must be for the purpose of obtaining information about the communications of people who are known or believed to be outside the United Kingdom. That amendment would replicate the current position in RIPA and, I agree, would provide valuable assurances. As drafted, the amendment contains minor, technical deficiencies, and for that reason, as my right hon. and learned Friend will understand, we will not accept it.

Counter-Terrorism and Security Bill

Geoffrey Cox Excerpts

Monday 15th December 2014 Commons Chamber

[James Brokenshire]

The hon. Gentleman leads me neatly to mention a number of protections in the Bill, and to say how we will ensure that the exercise of this power is proportionate and suitably circumscribed by a range of stringent safeguards. Some of the points about the need for speed and assurances about the exercise of such powers have been well made. A powerful power is being advanced in schedule 1, and those who exercise it must be satisfied that it is necessary to retain the relevant documentation. The different mechanisms available to challenge a decision underscore why we regard current protections as proportionate to this power.

In essence, officers who might exercise the power would be governed by a specific code of practice that would specify how they are to use it. Paragraph 2 of schedule 1 states that the constable must have

“reasonable grounds to suspect that the person is there—”

in the port—

“with the intention of leaving the United Kingdom for the purpose of involvement in terrorism-related activity”.

The officer then has to seek a further review by a senior police office of at least superintendent level to confirm that the power is appropriate in that case. There is a further review by an officer of chief superintendent rank within 72 hours of the officer’s findings, and that is referred to the chief constable who must remain satisfied with the case. Even from an administrative perspective there are a significant number of checks and balances to ensure that the power is being exercised effectively. If the documents are to be retained beyond the 14-day period, there is a court process and a review to consider how further oversight should be provided.

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

I completely understand why the Government have decided that within the 14-day period there should be no appeal or review, but I cannot understand why paragraph 8 of schedule 1 prohibits or prevents the judge from considering whether there is a basis for the order or retention in the first place. All the judge can do is ensure that those who are considering the matter are doing so diligently. He is not able to look at the foundation and basis for the entire retention—at whether there are reasonable grounds for suspicion.

[James Brokenshire]

My hon. and learned Friend highlights the mechanisms provided in paragraph 5 of schedule 1 on the manner in which the judge must be satisfied with the continued need to retain the documentation. His point is the basis or central tenet for the use of the power in the first place. Indeed, I think this relates to the point advanced by the right hon. Member for Delyn in one of his amendments. Judicial review is available to challenge the basis of the original decision. Therefore, there is a judicial right to question and challenge the basis on which the officer has used the power in the first place, as set out in paragraph 2 of schedule 1. We therefore believe there is a direct means to be able to challenge the underlying decision.

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.

Justice and Security Bill [Lords]

Geoffrey Cox Excerpts

Thursday 7th March 2013 Commons Chamber

[Mr Leigh]

I want to have a conversation with my good friend, my hon. Friend the Member for New Forest East (Dr Lewis). We all know that the Bill is about civil cases and not criminal cases, but as he well knows, because he has been a litigant, civil cases are very important and can affect a person’s whole life. They should therefore be treated with great seriousness.

We should not approach debates where human rights are involved by saying that the litigants belong to a class of people whom we find reprehensible. It may be that they are reprehensible, but that argument is often used about minorities. It is used at the moment about Islamists and it would have been used about the IRA in the 20th century, the civilian German nationals who were interned in 1940, the Fenians in the 19th century, the French earlier than that, the Jesuits in the 17th century, the Chartists and John Wilkes. So let us not get into the mindset of, “These are unpleasant people.” They also have a right to justice.

We should sometimes imagine how we would feel if we were the litigant. Let us suppose that we felt that something terrible had happened and our rights had been infringed in some way. How would we like a procedure whereby we went to court and halfway through the defence suddenly said, “This is all very secret and we cannot share it with you” and the judge said, “Okay, I’ll adjourn that and listen to the evidence on your behalf Member for New Forest East. You can trust me. I am appointed by the state. Or perhaps we can get some barrister appointed by the state and he can hear it”?

Let us then suppose that a few hours or days later the judge says, “You haven’t heard this evidence against you, but I think your case doesn’t stand up.” What happens when he sums up at the end of the case, as of course in public he cannot adduce all this secret evidence? How would hon. Members feel if they were the litigant? Would they feel that they had received justice? What does it say for our worldwide reputation if serious allegations about torture and so on are made and a large part of the case—and the reason why the litigant did not win his case—is determined on the basis of secret evidence?

We are then told that we are putting our security services at risk. That is nonsense, because the security services are like any other defendant, in that they can choose what evidence to submit to defend themselves. Is it really beyond the wit of man to defend these cases satisfactorily, for the most part? A question of the identity of agents may arise, but nobody is suggesting that the agent has to be brought before the court of law, or to have himself or his practices identified. Surely there are ways in which the case can be defended a lot of the time. I leave that point with my hon. Friend the Member for New Forest East. I know he takes the rights of litigants and human rights seriously, and we are taking a serious step today—

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

Will my hon. Friend give way?

[Mr Leigh]

I was about to finish, but I will give way.

[Mr Cox]

Does my hon. Friend agree that it is a rule of law that if the Government are not able to defend an action and the evidence they are not able to put into court goes to the heart of the case, thus making the case unfair, they have the right to apply to strike the case out? If a case is untriable, the Government are able to strike the case out.

[Mr Leigh]

Yes, my hon. and learned Friend is an experienced leading counsel. I would have thought that there are various ways in which this problem could be resolved. The sky will not fall in. Our security services are not going to be put at risk. But there is a principle of natural justice and I think that we should proclaim it.

Question put, That the Bill be now read the Third time.

European Convention on Human Rights

Geoffrey Cox Excerpts

Tuesday 19th June 2012 Commons Chamber

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

I had not intended to speak, but a number of matters have been raised on which, it seems to me, some light might be thrown. The hon. Members for Perth and North Perthshire (Pete Wishart) and for Hayes and Harlington (John McDonnell) both questioned the effect of what we are doing, and it is on that point that I hope to shed some light.

This is a limited, practical measure, and one that I support, but I do not hold out an enormous degree of hope that it will have a substantive effect on the exercise of the courts’ discretion. Section 3 of the Immigration Act 1971 provides that the Home Secretary can amend the immigration rules, and it provides for the procedure, by way of negative resolution, by which those rules can be challenged. If they are challenged, the Act requires the Home Secretary simply to consider the points that have been made on the resolution that has disapproved them and alter, as she sees fit, the executive administrative guidance that those rules contain. Today, an attempt is being made to give some democratic force to the alteration of the immigration rules, which the Home Secretary could otherwise have done simply by an Executive act, in the hope that it will communicate to the courts the fact that there has been some consideration by Parliament.

I take the view that that might well have some effect on the courts beyond the fact that they will attach a degree of weight to the Home Secretary’s opinion in any event. It is well established in the human rights jurisprudence that a decision maturely taken by the Executive—in this case a Secretary of State who has a wide range of advice available to her and who can consult experts in the field—to change the existing immigration rules would already be accorded a degree of weight by the courts when they are considering what is a proportionate decision in the application of a specific human right. What the Home Secretary is doing today, which, I submit, the House should applaud, is giving the House an opportunity to voice its opinion on the changes she has decided to make.

[Chris Bryant (Rhondda) (Lab)]

The key point, as I think the Clerks have already made clear, is that we are not deciding on the totality of the changes; we are deciding only on the basis of what is in the motion being debated today. I would not want the hon. and learned Gentleman to conflate the two by mistake.

[Mr Cox]

The courts are more than capable of appreciating that what we are dealing with here is not primary legislation. Primary legislation will be accorded a much greater degree of weight—some people use the word “deference”, but the courts have disapproved it—because there is usually a period of consultation, a Bill might have been scrutinised before it was even brought to the House and a wide range of interests will have been taken into account in the process of scrutiny. A court is more than able to distinguish between a piece of primary legislation and a motion such as the one before us and to see the scope that the motion considers. That is why I say that this process is likely to produce a degree—probably a very modest degree—of additional weight to be accorded to the Home Secretary’s discretion. Her discretion would normally be accorded a degree of weight by the courts, and the motion might add a little more to the changes to the immigration rules than they would already have been accorded.

It is not difficult to interpret what is being done here. It is perfectly valid. The courts will not be deceived or hoodwinked. They will see what we are doing. They will no doubt read, if they take the trouble to go that far down the pages of Hansard, the profoundly principled position that the hon. Member for Hayes and Harlington took when he held up his hands and, with a cry of horror, said, “Not with my assent.” But the reality is that the motion will lend some modest substance to the already substantial decision that the Executive and the Home Secretary have taken. She should be applauded for, and congratulated on, giving the hon. Member for Perth and North Perthshire the opportunity to mount that—one hon. Member described it as a “rant”; I should never be so impolite—extraordinary, eloquent and passionate diatribe, to which he treated the entire House from his position on the Opposition Benches, representing the Scottish National party.

[John McDonnell]

Will the hon. and learned Gentleman give way?

[Mr Cox]

I will, given that I have mentioned the hon. Gentleman.

[John McDonnell]

If the hon. and learned Gentleman’s argument is that what we are doing today is virtually meaningless, I agree, but where does that fit with Pepper v. Hart, which we have always used as the guide to what influences a court’s decisions, and which defines very narrowly how a reference to Parliament—in other words, to a ministerial statement that gives guidance on existing legislation—can be made?

[Mr Cox]

May I say first that it is not my argument—and the hon. Gentleman knows it. It is a forensic point, which does not do his subtlety and sophistication justice, to suggest that I am saying that this is meaningless. On the contrary, I am saying that it has meaning but we must not overestimate the meaning that it has.

[John McDonnell]

So, virtually meaningless.

[Mr Cox]

No! It makes a useful and practical contribution and is a useful measure that, to the extent that the courts are able to perceive what has gone on here, will no doubt provide a useful added measure of weight to the Home Secretary’s discretion. As for Pepper v. Hart, that is concerned of course with primary legislation and the detailed interpretation of individual clauses.

All that is being done here is that the courts are being invited to take note that the motion before us is not simply the executive fiat of the Home Secretary, and that the Home Secretary has put it before Parliament—much the same would have applied if it had been challenged under the 40-day procedure—and a debate about it has been held. Indeed, the courts in the past have examined motions and resolutions of this House and pointed out that they were merely resolutions, but they have not ignored them, and that is exactly what I expect will happen in this situation.

So the motion is perfectly reasonable. It is a laudable attempt to give this House the opportunity to have its say, and if I may say so there was a degree of pedantry from Opposition Front Benchers, who stood on their moral high horse and said, “This should have been primary legislation.” Of course it should not; the immigration rules already have a statutory procedure for amendment, through the Home Secretary’s laying them before Parliament. That is how they are amended, so we ought to avoid the forensic froth of suggesting that this is not a useful and practical—albeit, I accept, limited—measure.

There is no doubt that the Executive have the right, supported by Parliament in whatever measure they ask Parliament to support them, to put to the courts a degree of guidance on the exercise of the courts’ undoubted discretion to decide what is proportionate. This is not an attempt to fetter the courts; it cannot be. As my hon. Friend the Member for Stone (Mr Cash) has so often said, the courts are “unfetterable”. They will not be fettered by this House, and rightly so. The courts must exercise an independent, individual judgment.

There are other circumstances, however, in which the Executive seek to give guidance to the courts on what they consider proportionate in the circumstances. Let me give the House another example. The Home Secretary has a discretion to make an exclusion order against somebody outside this country whom it is not conducive to the public good to admit.

In—I think—2007 or 2008, what is called an acceptable behaviours policy was promulgated, setting out the general approach that a Home Secretary will take to what is a proportionate decision when people have made expressions that make them undesirable entrants to this country. That was done because, of course, article 10 on freedom of expression can be invoked, and the acceptable behaviours policy provides a broad framework for the discretion that the Home Secretary is to exercise in deciding whether to admit such a person who is guilty of such statements.

The sentencing guidelines are not dissimilar. They are guidance to a court on how a discretion might be used, but they are not binding: they cannot fetter the independent and individual judgment of the court. So, in my view, what is being proposed here is not without precedent in other areas. It is a limited, practical measure, and it is one that the House should strongly support, because there is a widespread belief among the public—sometimes wrongly held, as the hon. Member for Perth and North Perthshire has said, and sometimes a caricature—that the Human Rights Act is a shield for all kinds of disgraceful behaviour. The motion before us will do something to restore public confidence in the decisions that the courts make, and will demonstrate that the Government and this House are conscious that a change needs to be made. What will that do? It will assist the courts in striking the right balance and in achieving a degree of consistency, and, in my respectful submission, that is a wholly laudable aim to which this House ought to give its support.