European Convention on Human Rights

Jack Straw Excerpts

Tuesday 19th June 2012 Commons Chamber

[Mrs May]

I will give way to the former Home Secretary.

[Mr Jack Straw (Blackburn) (Lab)]

May I, in fully endorsing the Home Secretary’s approach and this motion, ask her to comment on the following? The previous Government, including through my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), did make great efforts to get the courts to change their approach, as they did in the Amy Houston appeal—I have details of the grounds of appeal here with me—but it was only when the courts found themselves trapped by their own precedent that this became necessary. I therefore endorse this approach, but it is not for the want of trying an alternative route pursued by the previous Government.

[Mrs May]

The right hon. Gentleman makes the valid point that this has been an issue for some time. I think it would have been possible for the previous Government to have done what we are doing today and bring a motion before Parliament, but we have done it and we are giving people that opportunity.

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[Yvette Cooper]

I am not sure whether the hon. Member for Stone (Mr Cash) was accusing me or the Home Secretary of “generalised waffle”. Given his record, I fear that it could have been either of us. It was probably both.

I am sure the hon. Gentleman will have read considerably more of the judicial pronouncements on this subject than I have, but the House is being challenged to send a clear signal to the courts, and we are not being clear about what we are doing in the motion. The status of the motion remains unclear because it is neither primary nor secondary legislation.

[Mr Straw]

Although the hon. Member for Stone (Mr Cash) is quite right to refer to the important observations of the Lord Chief Justice, does my right hon. Friend accept that even if the Human Rights Act had never have been passed, we would still have been faced with this conundrum about the balance between the articles in the European convention on human rights so long as we remained committed to the convention? That is a key part of the Conservative party’s policy as well as ours.

[Yvette Cooper]

My right hon. Friend is right. The convention provides an important framework, and like him I understand that the Conservative party remains committed to it. A strength of the Human Rights Act—I know he was a key pioneer in bringing it into British law—is that it provides Parliament with the ability to debate article 8. It is legitimate for us to do so as part of our debate on immigration rules and all kinds of other legislation.

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[Mr Jack Straw (Blackburn) (Lab)]

The hon. Member for Canterbury (Mr Brazier) has just said that he wants the House to discuss the wider issues of immigration, and I entirely agree with him. The immigration rule changes, to which the motion refers in a coda, go much wider than simply the interpretation of article 8 in respect of the deportation of foreign criminals. I would say, parenthetically, to the Home Secretary that while I support many of the other changes, I remain concerned about some of them, not least the removal of the right of appeal in family visit cases, which I introduced in the late 1990s. That measure has worked well and fairly, and in my experience it has led to abuse in very few cases. I therefore support the motion before the House in the context in which it has been brought forward—namely, to deal with the problem of the deportation of foreign national criminals.

The particular case that got me heavily involved in this matter as a constituency MP was the death in a motor accident of young Amy Houston. She was walking with her brother in Newfield drive in my constituency when a vehicle driven by an asylum seeker, Mr Mohammed Ibrahim, knocked her down and killed her, although she was alive for six hours after the event. He drove off without stopping or giving up any details. Amy’s bereaved father, Paul Houston, lives in the constituency of my hon. Friend the Member for Hyndburn (Graham Jones), who will give the House many more details of the case.

That asylum seeker, an Iraqi Kurd, was convicted of a series of offences arising from the accident. He had no driving qualifications, he was driving while disqualified and uninsured, and driving without a valid test certificate. Subsequently, he was cautioned by the police for the possession of cannabis and for burglary and theft. He was again convicted of driving while disqualified and uninsured, and, six years after the accident, convicted of the offences of harassment, damage to property and theft, for which he was fined. In 2008, he was also arrested and fined £200 for offences arising from a dispute with the woman he subsequently claimed to have married. I shall call her Mrs Smith, as there are children involved and I have no wish to involve them.

That man’s rights of appeal were completely exhausted, and he was due to be sent back. When the matter went to appeal—at Mr Houston’s behest and mine—to an immigration judge, one of the points that the judge regarded as acting in the man’s favour was the fact that the Home Office had made no effort to deport him between 2002, when his right to remain here was exhausted, and 2006. That was because it would not have been safe to deport Mr Ibrahim to Iraq at that time, for reasons of which everybody was aware. Notwithstanding that, it was decided that the relationship he had formed with Mrs Smith, by whom he had had two children, was sufficient to justify a family life entitlement under article 8.

I have to say—I and my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson) looked at this—that the evidence of a successful family life was very flimsy indeed. There was total confusion in the court about whether the two had been married and where the marriage had taken place—in Blackburn or Birmingham. Those two places are different and separated by well over 100 miles. There was dispute about the date. On her own admission, Mrs Smith visited this man only once during the nine months in which he was detained as an immigration detainee.

At the behest of my right hon. Friend, the former Home Secretary, there was a further appeal. We had hoped that the courts would use this as a test case to change the law in the direction that the current Home Secretary now rightly seeks. I regret to say that, sadly, that did not happen. As a result, I strongly believe that the only alternative, however imperfect, is to bring forward this motion and try to get a change in the approach of the courts.

I want to apologise to you, Mr Deputy Speaker, to the Home Secretary and to the House, because I have to leave shortly before 6 o’clock. I also apologise to the Minister for Immigration, as I shall not be in my place to hear his winding-up speech—unusually, in my case.

In saying all this, I make no criticism of the judiciary who dealt with these cases. One thing I learned from much contact with the senior judiciary is that precisely because the system rightly sees itself as subordinate to Parliament but does its best to interpret Parliament’s will, the courts sometimes get caught by precedent. As senior members of the judiciary sometimes told me in respect of other cases, unless there is an appeal that really hits the spot, which they can then sort out, the only remaining course is sometimes for Parliament to seek to clarify the law.

[Mr Cash]

rose—

[Mr Brazier]

rose—

[Mr Straw]

I give way briefly to the hon. Member for Stone (Mr Cash) first.

[Mr Cash]

I am most grateful. In dealing with the critical question of proportionality, which is what arises in these cases when a balance needs to be struck by the courts either way, does the right hon. Gentleman agree that, in the absence of very express provision, it will be impossible to fetter the court’s discretion—even with a steer from the wording—in the determination? The evidence is that individual judges will tend to continue to make their own judgment, whatever Parliament seeks to say.

[Mr Straw]

I am afraid that I do not accept that. A feature of our courts is that they are, quite properly, very conscious of the need to apply the law as they believe Parliament has laid it down. I am confident—I cannot be certain—that, had this proposed approach been passed by Parliament and if necessary enshrined in legislation, the courts would have been able to exercise their judgment on proportionality in a way that showed proper respect to the Houston family and to that poor child rather than to Mr Ibrahim and the woman with whom, in my judgment, he formed a relationship solely in order to evade immigration control and deportation.

[Mr Brazier]

The right hon. Gentleman is generous in giving way. He is also generous-spirited in saying that he makes no criticism of the judge concerned, in the light of that truly extraordinary judgment. Does he accept, however, that if the motion is passed and such cases continue to arise, it will be time for parliamentarians to start to criticise judges?

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[Mr Straw]

I think that it is a matter of style. It is perfectly right and proper for Members of Parliament to dissent from what the courts have said, as I do here, but I do not think it proper for them to insult or abuse members of the judiciary. It is the essence of our democracy that we have a separation of powers, and that can work only if each side respects it.

My final point is one that I put briefly to the Home Secretary when she made a statement, and it concerns the ending of the confidentiality of judgments in cases such as this. There is good reason for asylum cases themselves to be confidential; indeed, we are bound to that by the 1951 Refugee convention. However, I do not believe that when someone has failed in an asylum case and subsequently seeks something very different, it is right or in the public interest for the whole of the judicial determinations—pages of them—to be effectively kept secret.

It was only by accident that I got hold of that judgment. I was asked by the Home Office not to disclose it to Mr Houston. It was an extraordinary circumstance. Confidentiality in such cases means that the argument that the judiciary come up with is not open to the public scrutiny that is essential if our law is to apply itself properly.