European Convention on Human Rights

Debate between Jack Straw and William Cash

Tuesday 19th June 2012 Commons Chamber

[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.

Protection of Freedoms Bill

Debate between Jack Straw and William Cash

Tuesday 1st March 2011 Commons Chamber

[Mr Straw]

I will deal with each of those measures in turn, and then come to the contents of the Bill. I will run through them in the order they appear in my notes. On surveillance measures, the Regulation of Investigatory Powers Act 2000 was introduced, again by me, to do what it says in the title—to regulate investigatory powers. My predecessor, now Lord Howard, had started that regulation. Before 1996, there was no regulation of those powers, and the most extraordinary situation obtained inside the police. They suited themselves whether to put microphones in walls. They had guidelines from the Association of Chief Police Officers, but there was no statutory supervision or proper regulation, and no account was taken of the equipment used. That was improved, to some extent, by my predecessor, and then comprehensively by RIPA. However, I accept that the provisions in RIPA have been used by local authorities, in respect of minor offences, in a way that was never intended, so I support the change proposed in the Bill.

I also support the change on wheel-clamping. I will have to look at some of the detail, but like my right hon. Friend the shadow Home Secretary I strongly celebrate the campaign by my right hon. Friend the Member for Doncaster Central (Ms Winterton), who has been promoted partly because of this and has now had to take Trappist vows as Opposition Chief Whip. I also strongly support a campaign that my right hon. Friend the Member for Kirkcaldy and Cowdenbeath (Mr Brown) began on the elimination of all convictions involving consensual relations with gay men.

The hon. Member for Carshalton and Wallington (Tom Brake) asked me about counter-terrorism powers. Although we did not get everything right, the introduction of those powers needs to be seen in context. The Terrorism Act 2000 was approved by the House—I cannot remember where the Liberal Democrats were, but I remember that the Conservatives supported it. However, section 44 was intended to be used in a much narrower way than has been the case, so I have no objection to its effective redefinition in the Bill.

We got it wrong on 90 days—I am perfectly happy to say that—but it must be seen in the context of what happened on 11 September 2001. People were terrified, and the first responsibility of any Government is to secure the most fundamental liberty—the right to life. Of course, we still needed to have a balance, and we sought one, but we did not quite get it right. I am perfectly happy to say that. I simply say to the hon. Gentleman, however, that although the prescription in the Bill of 14 days is fine as a standard, the contortions in the Bill and in draft legislation that would provide for a reserve power of 28 days will prove impractical. The reserve power, which we all agree ought to be there, has to be used in circumstances in which it is virtually impossible for the Home Secretary to disclose the details. The full-scale parliamentary legislative process that would follow a recall of Parliament—you can bet your life that that is how it would happen, because that is how terrorists operate—would be the most extraordinary and mocking ever seen: the Home Secretary would have to come to the House and say, “I want this legislation to double the period of maximum detention, but I can’t tell you why.” It would be far better, in those circumstances, to say, “Here is a power for the Secretary of State for which he or she will be accountable in due time.” Given that he or she is the only individual in possession of all the information that should trigger this power, the responsibility for triggering it should rest with the Secretary of State by way of a special order.

[Mr Cash]

Will the right hon. Gentleman, to whom I am listening carefully, seek, as a former Home Secretary, to answer the question I put to the shadow Home Secretary regarding habeas corpus? I also asked Charles Clarke, another former Home Secretary, whether habeas corpus would survive these provisions. I never got a satisfactory answer. Does the right hon. Gentleman accept that these provisions do affect habeas corpus, but that, as I insist in my Bill, which comes out tomorrow, habeas corpus is absolute and must apply in all terrorism cases?

[Mr Straw]

I do not want to get drawn too far down this road, but the hon. Gentleman will know that until the Police and Criminal Evidence Act 1984 and the recommendations of the royal commission that preceded it, there was no statutory regulation of the length of time for which, or the circumstances in which, the police could hold a suspect. It is extraordinary, if we think about it. There were judges’ rules, which were non-statutory, and the only effective check on an arbitrary use of power—apart from practice—was habeas corpus. If somebody was locked up for too long, his solicitor or friends would threaten a writ of habeas corpus. That was how it worked, and I would refer those who think that those were halcyon days for criminal justice to the 2010 Judicial Studies Board lecture in which the current Lord Chief Justice, Lord Judge, reflected on his time as a junior at the Bar and on how that non-statutory system of regulation led—as I saw when I was a young barrister in the 1970s—to fitting up, to words being put into criminals’ mouths and sometimes to very substantial and totally unacceptable physical pressure and violence against suspects. Of course, one consequence was that confession statements were often successfully challenged. Habeas corpus is one part of the law, but where there is more recent statute, the courts will go to that first.

Let me turn now to other matters in the Bill about which I have some serious reservations. As the Member of Parliament for Blackburn, I have had many representations about closed circuit television. I do not know whether my experience is any different from that of anyone else in the Chamber, but all the representations I have received about closed circuit television have been requests from constituents to introduce more of it. In the whole of my 32 years in this House, I have never had a single representation seeking the removal of CCTV monitors. Not one. The demand is there because it makes people feel safe, and I bet that this experience is shared across the Chamber. I cannot remember an occasion as Home Secretary when I received any representations suggesting that the existing system, which we should bear in mind is subject to control under data protection and other measures, was unsatisfactory.

Parliamentary Voting System and Constituencies Bill

Debate between Jack Straw and William Cash

Tuesday 15th February 2011 Commons Chamber

[Mr Straw]

Like my hon. Friend the Member for Rhondda (Chris Bryant), I am a supporter of the alternative vote system, as I have made clear, not least in a tract that few people read, to which I contributed with my right hon. Friend the Member for Neath (Mr Hain) in 1986. I also spelt it out in this House on 9 February 2010 in a very big debate on AV. On the issue of consistency, the hon. Member for Forest of Dean (Mr Harper) may recall that he voted against the whole idea of having a referendum on AV then, so there is always a place in heaven for sinners to repent. On the threshold, I say to him that the excuse of technical defects in an amendment is the last refuge of a Minister who has nothing to say. If the only problems with Lord Rooker’s amendment are technical defects, he should ask the parliamentary counsel to draft amendments and they will go through like a dose of salts.

On the principle, the Minister was arguing against an all-or-nothing threshold, saying that if we did not reach the threshold—this is a very different one from that for the Scottish Assembly in 1979—the whole referendum result would be nugatory. That is not the case here, because this is a skilfully put together threshold. As my hon. Friend the Member for Rhondda says, it does not render nugatory a result on a 39% or 35% turnout; it brings the matter back to this House. However, were the turnout derisory, we would of course need to think again. For those reasons, I strongly urge hon. Members from all parts of the House, regardless of their view on the merits or otherwise of AV, to vote for this Lords amendment.

[Mr Cash]

Last night, Lord Rooker, to whom I pay great tribute, said that his amendment required tweaking, which is what my amendment (a) does. In a nutshell, it says that if the threshold of 40% is not reached, the Minister would have an obligation to introduce legislation to repeal the alternative vote provisions. Why do I say that?

Fixed-term Parliaments Bill

Debate between Jack Straw and William Cash

Wednesday 24th November 2010 Commons Chamber

[Mr Straw]

No, it would not. There is nothing in paragraph (c) that would, in law, prevent a Prime Minister from being party to an arrangement to secure his own demise and go for a general election. If these provisions go through, there will be nothing, in law, that can be done about that theoretical possibility.

Professor Robert Hazell, in evidence to the Lords Constitution Committee, made a very pertinent comment on this point when he said that political incentives should prove a force for stability. Whatever may have been appropriate in Germany in one very unusual case where the Chancellor did indeed arrange to move a motion of no confidence in his own Government, the prospect of a Prime Minister of this country coming to the House to move a motion of no confidence in his own Administration without suffering immediate popular and parliamentary derision, and a significant loss of votes at the poll that would then follow, is fanciful.

[Mr William Cash (Stone) (Con)]

I might have expected that the right hon. Gentleman would hit the nail on the head. He is really talking about the great damage that lies within these provisions—namely, that they are in defiance of the democratic mandate. This is about Whips and patronage; it has nothing to do with the people outside. My only suggestion—it is not a criticism—would be that he may want to qualify his reference to the impact on this House by talking about the impact on our electoral and democratic system and thereby the damage done to the people of this country.

[Mr Straw]

I accept what the hon. Gentleman says and thank him for the compliment.

I have a number of rules that I try to follow in politics, one of which is that fancy tactics never work. This is a fancy tactic. I am sorry to say—it is not that I have anything personal against them—that one can see the Liberal Democrats, who were, as described by one of their members, a perpetual Opposition think-tank until they suddenly and unexpectedly found themselves in government, thinking up this wheeze on the basis that because it had happened in Scotland and, no doubt, in Latvia or Leichtenstein, it would work here. However, we have a more direct system of democracy; we may criticise, and I hope that we do. [Interruption.] I hear someone referring to Scotland. I happen to think, on reflection, that the relevant section in the Scotland Act is redundant, but different considerations applied at the time. One consideration—I mean this in no disobliging way to Scottish colleagues of all parties—is that the Scottish Parliament is a creature of this House, legally, whereas we have to be responsible for our own rules.

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[Mr Straw]

My hon. Friend makes a very important point.

[Mr Cash]

Following the Minister’s intervention, may I take the liberty of correcting a point that was made regarding the German situation? Under the German constitution—a written constitution, of course—a two-thirds majority must be in each house, whereas the Bill’s provision applies only to the House of Commons. In addition, and more importantly, it must be two thirds of all those who vote in the Division in question, not two thirds of all seats. That is a very important difference.

[Mr Straw]

I accept that, and the history of the German constitution is very different from the history of ours, even though to a large extent we wrote it.

I will finish where I began, by referring to the explanation by the hon. Lady of the amendment that she moved, with which she does not agree. She pointed out that that was a consequence of her Committee having to rush through pre-legislative scrutiny. I sat on the Front Bench for part of the debates on the Bill, and I have yet to hear any convincing explanation from the Minister as to why they had to rush the Bill through.

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[Mr Straw]

If a Prime Minister really wanted to call an election of choice, they would not worry about the two-thirds majority requirement, because they would be very unlikely to get it. They would instead go for a motion of no confidence.

By legislating for a fixed-term Parliament, we will establish a clear political norm that Parliaments last for five years. Leaving aside the argument about whether the term should be four or five years, I happen to support that principle, and I believe that is where the British people are. However, if the confidence of the House is lost, or the Government of the day simply give up and vote for a motion of no confidence, there must be an election. In the absence of that, there should not.

I have arranged to go and sit in Westminster Hall at 4.30 pm to listen to a debate on a matter of interest to all Members from east Lancashire. If this debate is not concluded by then, I hope I may be excused.

[Mr Cash]

The Chamber is very empty, considering the significance of what is being done by clause 2. In a way, that reflects the decline of this Parliament, which some of us believe strongly needs to be rejuvenated, not on the basis of protestations of power being returned to the House, as we read in our manifesto, but in the reality of how legislation is introduced.

The clause is the turn of the screw by the coalition into our democratic system of government, which, at its essence, is about the individuality and votes of conscience of MPs, irrespective of the Whips and the patronage system. It creates a permanent constitutional change through a passive, silent revolution—the most silent revolution since our Parliament began. It is being done without a mandate of any kind for any party, in any manifesto, in any part of the political system.

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[Mr Cash]

I am more than delighted to reply to the hon. Gentleman. Sparring with him always causes me great amusement. As for what he says, there is a substantial difference. The threshold amendment that I moved on the other Bill was to do with the threshold of a number of people who would participate in the election, and not what was going on in this House. It was not even related to the question of the threshold of those who voted yes, as in the Scotland Act 1998 and the amendment of George Cunningham, the then Member for Finsbury and Islington, so there is a significant difference. I am talking about the trust that is given to us in this House and the manner in which we discharge it.

The coalition originally proposed 55%, but that was so manifestly absurd that the coalition agreement was then torn up and the figure was replaced with two thirds. If not 55%, why two thirds? The Scottish Parliament—I am using this analogy because it has already been raised, but I think that it is completely irrelevant—does not form Her Majesty’s Government. Decisions in time of war, a Finance Bill or any of the other great levers of power are determined, and will continue to be determined, by the United Kingdom Parliament. One such great exercise of power at a most important time was the confidence motion of 10 May 1940, which was passed, as it happened, by the Government, and it led to the demise of Neville Chamberlain’s Government, because everyone knew he had to go. I do not regard the Scottish parliamentary experience as relevant. If not two thirds, why not 75%, 60% or any other number that Harry Potter’s wand might conjure out of thin air?

[Mr Straw]

Will the hon. Gentleman speculate on what he thinks would have happened if the two-thirds rule had applied in May 1940?

[Mr Cash]

Absolutely. I entirely agree with the right hon. Gentleman. Furthermore, there was the motion of no confidence in the Callaghan Government in 1979, in which the numbers of votes were 310 against 311. The result of that vote may have been a matter of satisfaction for the Conservative party, but I am sure that it would not have been to others. However, if the two-thirds rule had been in operation, there would not have been a change in Government and that would have been a disaster for the country.

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[Mr Cash]

My hon. Friend with his customary originality brings into play a contemporary example. Imagine a two-thirds rule being applied in respect of Mr Cowen at this moment. Be in no doubt, there would be riots in the streets of Dublin. This is an essential question about the irresponsible manner in which this power could be used to induce results that are fundamentally undemocratic.

[Mr Straw]

I understand the Minister’s point that these provisions relate not to a motion of no confidence but to other motions for an early Dissolution. Given, too, the poor definitions of a motion of no confidence, we could anticipate a situation in which a Government who wish to cling to power, even though they lack a simple majority, could dodge and weave—because they determine the business of the House—for quite a period and ensure that the motion that went before the House was tabled under clause 2(1)(c) requiring a two-thirds majority in the hope of buying themselves a little time. If this provision were not in the Bill, the choice between going to the end of the period and having an early election would be much more stark.

[Mr Cash]

The right hon. Gentleman demonstrates why many people thought that he was one of the foremost leaders of the House of Commons. He understands the mechanics that lie behind such questions. Precisely what he has just said could easily happen. Indeed, many other things are likely to be conjured out of thin air by the wave of a magic wand of the kind that only Harry Potter seems able to use.

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[Mr Cash]

The Opposition’s thinking is not a matter for me. I happen to believe that our present constitutional arrangement should be sustained. It gives me no pleasure to know that the Opposition will vote with me on amendment 4. Their reasoning does not matter; what matters is the constitutional principle that I am advancing.

[Mr Straw]

I am grateful to the hon. Gentleman for his generosity in giving way. May I illustrate the point that he and I have made in answer to the Minister’s perfectly reasonable point? At first blush, it appears that the provisions of clause 2(1)(c) strengthen the role of the House against the Prime Minister. However, I remember what happened in 1979. I was a candidate at the 1979 election, so I was no longer working for the Government, but I was in very close touch with people for whom I had worked for three and a half years and knew a lot about what was happening. There was a crisis over the outcome of the Scottish Assembly referendum, and the Commons needed an occasion on which it could give vent to that feeling, because the various smaller parties had to have their positions put on the record. Had there been a provision in legislation for an early Dissolution by two-thirds majority, the Government of the day—

[Mr Straw]

In that situation, the Government of the day would have worked with the smaller parties and said, “You can have your shout on the two-thirds majority, and in return, we’ll give a bit of extra cash to Northern Ireland,” and so on. That would have happened. Therefore, the motion of no confidence would probably never have been tabled, and even if it had been, it probably would have been lost.

[Mr Cash]

I understand that point, and the right hon. Gentleman describes a sort of invitation to pork barrel politics.

Fixed-term Parliaments Bill

Debate between Jack Straw and William Cash

Monday 13th September 2010 Commons Chamber

[Mr Straw]

No, and that is the point. The courts will decline to entertain arguments, and actions, about what happens in the House, because they are banned from doing so; their job is to interpret legislation. The Government are inherently more vulnerable—I do not say that I share the view of the Clerk that they are very vulnerable—because they can get past the first base.

[Mr Cash]

As the right hon. Gentleman probably knows, I was very active on questions about the privileges of the House in relation to the Bill he just mentioned. Just now, the Chair of the Political and Constitutional Reform Committee implied that the views of the Clerk had effectively been overridden by the views of other experts. I have looked carefully at the evidence, and it is clear that the Clerk gave his view on 7 September whereas the main evidence, from all the other experts, was given on 21 August; in other words, the Clerk of the House of Commons—a distinguished expert and very knowledgeable about the House—gave his evidence in the light of the evidence that had already been given, save only for the oral evidence given by Professor Blackburn. The Committee did not ask Professor Blackburn specifically whether he repudiated the views of the Clerk of the House, so it seems to me—I hope the right hon. Gentleman agrees—that the matter remains very open and that both the Clerk and Professor Blackburn agree that there should have been a draft Bill for pre-legislative scrutiny. In those circumstances, the evidence is overwhelming that the scrutiny should be properly done.

[Mr Straw]

On the hon. Gentleman’s first point, it would have been difficult for me not to notice that he had taken an interest in privilege in relation to the Parliamentary Standards Bill, as he was scarcely ever not on his feet complaining about something or other that I was doing from the Treasury Bench. The Clerk was absolutely right to raise the issue and in the end we got through it. We were genuinely up against the clock with that measure, because the leaders of all three main parties had agreed both a timetable and broad outline contents.

In this case, I am not coming down on one side or the other, but the issue is sufficiently worrying that we need to take our time.