Post Office (Horizon System) Offences Bill (Instructions)

Debate between Joanna Cherry and Alistair Carmichael

Monday 29th April 2024 Commons Chamber

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I thank the hon. Member for Motherwell and Wishaw (Marion Fellows) for organising the briefing for us today. I attended it; I think there was only one sub-postmaster and one solicitor present at the time, but it was useful to hear from them. I pay tribute, as I have done before, to her for the work that she has done.

I suppose it is a consequence of the motion before the House that we have emphasised its procedural aspects more heavily than the outcomes, but the House today needs to focus on the best possible outcomes for sub-postmasters. If there had been insistence on the Northern Ireland Assembly drawing up legislation, that would have required a 12-week minimum statutory consultation period, and that would have produced a worse outcome for sub-postmasters in Northern Ireland. For that reason, I thought that the direction in which the Minister moved was absolutely sensible.

I am afraid that I do not take the same view on the position in Scotland. Including Scotland in the Bill would leave unresolved issues, and the Bill would therefore leave Scottish postmasters in a poorer position than those in the rest of the country.

[Joanna Cherry]

rose—

[Mr Carmichael]

Will the hon. and learned Lady let me explain why I take that view? On 16 January, the Lord Advocate made the following observations, and I think that she is quite right:

“The vast majority of the cases that may be affected by the issue were cases in which the accused pled guilty to the offence. Often, those pleas were tendered under legal representation. Although it is impossible to comment on every case, prosecutors do not mark cases to proceed in the absence of corroboration—they simply do not do that. Defence solicitors do not advise clients to plead guilty in the absence of corroboration. In cases that proceed to trial, the sheriffs do not convict in the absence of corroboration. As a result, it is reasonable to infer that, in cases that resulted in a conviction—whether by guilty plea or conviction after trial—other evidence was available that was capable of supporting the finding of guilt…As I have explained, not every Horizon case will involve a miscarriage of justice. In some cases, there was sufficient evidence to support a criminal conviction.”—[Scottish Parliament Official Report, 16 January 2024; c. 22-27]

That is the view and analysis of the Lord Advocate. Essentially, what she is saying—I have always believed that this is right—is that because of the way that the laws of evidence and procedure operate in Scotland, and in particular because of the need for corroboration, qualitative safeguards that bring better outcomes are available to people who are before the Scottish courts. The presence of corroboration is an important part of Scots law, and the Lord Advocate is right to highlight that. As she has raised these issues, I believe that it is better for legislation to be made in the Scottish Parliament, where the equivalent to this stage would take place in a committee, and not in the Chamber, as is the case here; again, that is preferable.

[Joanna Cherry]

Does the right hon. Gentleman not appreciate that the concerns that the Lord Advocate has expressed are similar to those expressed by lawyers from across these islands about this legislation? Ultimately, it is Parliament’s decision whether to exonerate. Has he read the evidence given to the Criminal Justice Committee, and does he disagree with Professor Chalmers, who said that the purpose of the Bill is to make sure that convictions can be quashed, so that innocent people can be compensated quickly; that the scandal originated with a faulty computer system and dubious investigating procedures in a UK-wide institution; and that the scheme for compensation is UK-wide, so the paving legislation should be UK wide? That is not my opinion; it is the opinion of one of Scotland’s most pre-eminent criminal lawyers, the regius professor at Glasgow. Can the right hon. Gentleman tell me why he is wrong?

[Mr Carmichael]

The hon. and learned Lady has said herself that this is a matter of opinion. I put great confidence in the opinion of Professor Chalmers, but I come to a different conclusion, because the route to conviction lay through civil servants employed by the Scottish Government—[Interruption.] As the hon. and learned Lady reminds us, almost three decades ago, I was one of them, so I understand perfectly how the system works, and I also understand that if I ever got it wrong—incredible though that suggestion may seem—the accountability for my mistake would be through the Lord Advocate.

--- Later in debate ---

[Mr Carmichael]

The hon. Lady knows that I agree with her a lot more than either of us would ever admit, but on this matter, there is clearly a difference of opinion. The decision on whether the route to exoneration should be through the Scottish Parliament or through this place is a political choice.

[Joanna Cherry]

I sense that the right hon. Gentleman is reaching his peroration, and as we are both Scots lawyers, I wonder if he will join me in correcting the Labour party spokesperson, the hon. Member for Bethnal Green and Bow (Rushanara Ali). She said repeatedly that the Scottish judiciary did not want this legislation. The right hon. Gentleman will know that the Scottish judiciary, like the English judiciary, would never comment on the desirability of legislation. Does he agree that the hon. Lady was getting mixed up with the Lord Advocate? Perhaps she should have a chance to correct the record later, because it is very important that the House does not give the impression that the Scottish judiciary have been criticising Parliament when they have not.

[Mr Carmichael]

I say gently to the hon. and learned Lady that the Scottish judiciary would never comment publicly because, in my experience, they have ways of making their views known. But she is right to point out that on this occasion, the Opposition spokesperson confused the office of the Lord Advocate with the judiciary. I would say to the hon. and learned Lady, however, that that in itself demonstrates to me the need for this matter to be dealt with where the expertise lies, which is the Scottish Parliament.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Joanna Cherry and Alistair Carmichael

Consideration of Lords amendments
Monday 18th March 2024 Commons Chamber

[Mr Carmichael]

Would there not be some sense in allowing Home Office decision makers to take account of the Home Office evidence that has been gathered together in the way that the hon. and learned Lady describes?

[Joanna Cherry]

The document was withdrawn for a while and updated in January, so I only saw it and read it in detail just before my trip to Rwanda. I was really quite appalled that Government Ministers could continue to state that Rwanda is a safe country from a human rights perspective in the face of the evidence that they themselves collated. I really want to hear a colourable answer to that point.

Before the Joint Committee on Human Rights left the UK, we took steps to find out about the human rights situation in Rwanda. The evidence that we heard gave me great cause for concern about the curtailment of freedom of expression in Rwanda for those who wish to criticise the Government. The US State Department, Amnesty International and Human Rights Watch have reported evidence of unlawful or arbitrary killings, disappearances and torture. One area of particular concern for asylum seekers sent from the UK is the protection of same-sex-attracted and transgender people. The Foreign Office travel advice for Rwanda warns British gay people and British trans people that individuals

“can experience discrimination and abuse, including from local authorities. There are no specific anti-discrimination laws that protect LGBT+ individuals”.

When I put that to Government officials and others with whom we met, I was reassured that the Rwandan constitution contains a general protection against discrimination, which it does, but sexuality and gender identity are not listed there. Crucially, nobody was able to show me any evidence that a gay or transgender person has ever availed themselves of the anti-discrimination protections in the constitution. People were at great pains to tell me that homosexuality and transgenderism are not criminal offences in Rwanda. Sorry to be light-hearted, but whoop-de-doo. As a lesbian, I can tell the House that the mere fact that one is not criminalised is only the start of the story.

I think Rwanda is where the UK was on LGBT rights about 50 years ago. Yes, it is ahead of many other African countries because it is not illegal to be gay or trans in Rwanda, but there are no positive rights and no equal rights protections. We need to acknowledge that, because there are people who come to the United Kingdom because they are gay, transexual or transgender, and they know that we in the United Kingdom have great, world-class equal rights for gay and transgender people. If they are coming here for those protections, they are perfectly entitled to be concerned about being sent to a country such as Rwanda, where no such protections exist.

Many others come to this country because they were dissidents in their country—they have criticised their Government. They come to the United Kingdom, because —so far at least; touch wood—we still have freedom of expression. I am not sure that Rwanda can be described as having the same freedom of expression protections that we enjoy in the UK.

Asylum seekers also come to this country who have been human rights defenders in their country and have been persecuted for it. Again, touch wood, we in this country still have full human rights protections. That, based on the evidence of the Home Office itself, is not the position in Rwanda.

Covid-19: Contracts and Public Inquiry

Debate between Joanna Cherry and Alistair Carmichael

Wednesday 7th July 2021 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

If I may, I am going to return to the subject of the motion, which is about methods of scrutiny of the United Kingdom Government.

It has been clear from the outset of the current Prime Minister’s term of office that this is a Tory Government who abhor scrutiny. Shortly after he took office, the Prime Minister tried to shut down Parliament completely. He did so because he was finding its scrutiny of his Government’s hapless progress towards Brexit tiresome. But it is Parliament’s job to scrutinise, and no matter how tiresome hon. Members on the Government Benches may find the subject of the debate, it is actually rather important.

I say to the hon. Member for South Suffolk (James Cartlidge) that I suspect that his constituents, like mine, also care about how their hard-earned money is spent by his Government. They are rightly concerned because two court cases so far—there are others in the pipeline—have revealed that there are major question marks over whether this Government have abused their privilege to line the pockets of their mates.

This Parliament, when it was unlawfully prorogued, sat again only because of the intervention of the courts. That is an indication of how important the rule of law is, and one of the many reasons why the UK Government want to reduce both the scope and the availability of judicial review.

An unlawfully prorogued Parliament is dangerous for democracy, but so is a supine Parliament, and this Parliament is, frankly, a shadow of its former self. Regulations impinging on our basic civil liberties during the covid crisis have been rushed through with the minimum of parliamentary debate. It is not just urgent business regarding covid that this Government treat in a cursory fashion in this Parliament. Earlier this week, we saw a Bill with major implications for civil liberties—including the civil liberties of the Gypsy, Roma and Traveller community, who are protesting outside Parliament this afternoon—go through without proper debate or scrutiny because of the ridiculously short time that the Government allocated to hundreds of new clauses and amendments.

The brutal fact is that this Government do not like evidence-based policy making. In fact, they do not like evidence full stop. They like to run the country and the four nations of this Union free from scrutiny or accountability. They like to do so based on their little Britain, me first ideology and the personal ambition of Ministers—Ministers who have not dared to show their face in the House this afternoon—who look only to their mates for assistance, in return for handsome remuneration and keeping records minimal.

The way in which the Government have handled the emergency covid-19 contracts typifies that approach. The sad thing for British parliamentary democracy is that it is only through judicial processes instigated by concerned citizens acting through the Good Law Project that the full scale of this Government’s chicanery has come to light. So far, the Good Law Project has brought two successful legal challenges against the Government’s handling of pandemic-related procurement, but there are quite a few more in the pipeline, and I suspect there will be more than two successes to come. The two successes so far have established that both the former Health Secretary and the current—for now—Chancellor of the Duchy of Lancaster acted unlawfully. That is a really serious matter, and we would be failing in our duty as an Opposition if we did not bring it to the Floor of the House.

Over and over again, we have heard representatives of the Government try to argue that in the case of the Good Law Project v. Minister for the Cabinet Office, the Court did not find the Government guilty of any actual bias. That is a total red herring, however. The Good Law Project did not seek a finding of actual bias; it sought a finding of apparent bias, which is a well-understood legal term. The test for apparent bias in the law of England, and indeed that of Scotland, is whether the

“circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger,”

that the decision maker was biased. That is the test that the Court applied.

Looking at the contract awarded by the Cabinet Office, the Court found that a fair-minded and informed observer would conclude that there was a real possibility that the Government had awarded a significant contract to a company on the basis of bias. In layman’s terms, that means that the Court found that the Cabinet Office awarded a lucrative contract on the basis of favouritism. Even in the middle of a crisis, that is illegal. It is illegal because that money is not the Government’s, but the taxpayer’s. It is my constituents’ money; it is the money of the constituents of the hon. Member for South Suffolk; and it is the money of all our constituents.

These court processes have brought to light emails that would never otherwise have got into the public domain. These emails show that the much-maligned newspaper The Guardian newspaper and openDemocracy were right last year when they alleged that there was institutional cronyism at the heart of the British Government.

[Mr Carmichael]

I very much share the hon. and learned Lady’s analysis of the work of openDemocracy and the Good Law Project. On the subject of emails that are only now coming into the public domain, does she agree that intervening to delay the publication of data relating to care home deaths in Scotland, as a story in The Scotsman indicates that Fiona Hyslop did, was, at the very least, ill advised?

[Joanna Cherry]

I am not aware of the detail of that allegation, but, like the right hon. Gentleman, I was elected by my constituents—for my sins—to come to Westminster to scrutinise the actings of the British Government. Just earlier this year, a whole bunch of MSPs were elected to scrutinise the actings of the Scottish Government, and that is for them to do. Today, I am focusing on this Government.

The point I want to make—I am coming to a close, because I know others want to speak—is that the sunlight that these two judicial reviews have shone on the Government’s back-door dealings shows why a judge-led inquiry is so important. Even when this Government lose in court, they cannot tell the truth about the reasons why they lost. That is why the power of a judge-led inquiry to compel witnesses and the production of documents will be so important. Not telling the truth, or indeed not telling the whole truth when on oath is a very serious matter. In a judge-led inquiry, doing so would have the sorts of repercussions that ought to make most people—even in this Government—think twice. Witnesses are far less likely to get away with prevarication and obfuscation under questioning from lawyers, supervised by a judge. An approach to government that involves saying, “The cat ate the paper trail” or, “My redaction pen is my trusty shield” will not cut it in a judge-led inquiry. Obstructing judicial orders for documents constitutes contempt of court, and experience shows that that threat in a judge-led inquiry often brings to light records that would otherwise have found their way to the virtual shredder.

There is something wrong with British democracy, in that a Government elected by only 43.6% of the UK-wide vote can rule like a dictatorship, treating this Parliament as an inconvenience. Seen from Scotland, the situation is even worse: this Government have no mandate in Scotland, and the party that does have a mandate—the Scottish National party—is frequently treated with contempt in this House. In the past few days, we found out what most of us already suspected: the Prime Minister has so little respect for democracy in Scotland that he wants to close Scotland’s Parliament down. He does not need to worry too much about this Westminster Parliament, because he has already emasculated it.

The rule of law is our only hope. That is what the Good Law Project’s successful cases show: the only way that we can get to the truth of what this lot have been up to is by litigation and a judge-led inquiry. No wonder they are so desperate to limit the scope and availability of judicial review, and no wonder they fear a judge-led inquiry.

Investigatory Powers Bill

Debate between Joanna Cherry and Alistair Carmichael

Ping Pong: House of Commons
Tuesday 15th November 2016 Commons Chamber

[Joanna Cherry]

I rise to support the shadow Home Secretary and her motion to accept these amendments. I will keep my comments brief. I will not go into the Scottish angle because I covered that in some detail last time.

The other place is clearly seeking to use these amendments to bring pressure on the UK Government to bring section 40 into force. The SNP is happy to lend its support to that effort, particularly as these amendments would afford protection and legal redress for those who suffer as a result of the most egregious sort of interception without legal authority when phone hacking is carried out by newspapers. Those who have not hacked, do not hack and do not intend to hack have nothing to fear from these provisions. Contrary to what has been said in the newspapers by many who advocate on behalf of wealthy newspaper proprietors and contrary to what has been said by some Government Members, there is a get-out clause in these provisions where a newspaper is sued unfairly and unjustly, and that is the just and equitable exception. We have to trust that the courts will implement that properly, as we trust them daily to implement justice and equity.

In the other place Baroness Hollins pointed out what this is really about. A widespread criminal conspiracy involving more than one newspaper group lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry, which came to conclusions that were supported cross-party in this House. The Government committed to implementing them; they are now failing to do so. As I said in an intervention, they are seeking to replace the public semi-judicial inquiry that was Leveson with a consultation in which the Government will consider proposals behind closed doors without the benefit of submissions and evidence being given in public, and that is not right.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Does the hon. and learned Lady recall that the reason we reached the agreement we did was a determination that politicians should have no role in this, so does she share my frustration that we are here again in November 2016 still discussing this?

[Joanna Cherry]

I agree. I was not here when these matters were previously discussed in this House but I followed that closely and it was all about taking politicians out of the mix. The Government’s consultation is putting politicians into the driving seat—and Government politicians at that. That is exactly what many of us did not want to happen, and it is what Leveson said should not happen.

I support these amendments because they now stand alone and do not impinge on the other provisions of the Bill. As Lord Pannick said in the House of Lords, these amendments are now in scope. They are supplementary to what is there already and they do not detract from the security issues in the Bill. I believe these two points meet many of the objections put forward by Ministers.

The amendments are on point and relate to the subject matter of the Bill because they deal with the consequences of unlawful interceptions of communications. At the risk of tooting the SNP’s trumpet too often, I simply remind the House again that new clause 8 came into the Bill as a result of a suggestion made by me and my colleague in the Bill Committee, my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands).

These amendments will apply to new and old phone hacking claims alike, but they are not objectionable, as being retrospective, because in considering how to deal with costs the court must look to the issue of whether the defendant was registered with an approved regulator at the time when the claim was commenced.

I believe the remaining objections to the amendments are misplaced. If the Government are concerned about these amendments causing delay to the passage of this important Bill, all they need to do is bite the bullet and implement section 40 and then we can forget about the amendments, and I invite them to do that.

Rights of EU Nationals

Debate between Joanna Cherry and Alistair Carmichael

Wednesday 19th October 2016 Commons Chamber

[Joanna Cherry]

I will take more interventions later, but I would like to make some progress as I am conscious that many other Members want to speak.

Scotland is an inclusive and outward-looking society. We recognise the immense contribution that migrants make to our economy, society and culture. We firmly believe that similar views are held by many throughout the rest of the United Kingdom. We appeal to the UK Government to listen to the voices from across the UK of those who do not want EU nationals living in the United Kingdom used as bargaining chips in the Brexit negotiations. This Union of nations should be better than that.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I think we can agree that the right hon. and learned Member for Rushcliffe (Mr Clarke) is right to say that no one in this House would want to see EU nationals who are living and working here expelled. The point is that there are people out there who have been emboldened by the current political climate who want to see EU nationals living here expelled, and worse. The sort of signal that the hon. and learned Lady is calling for, which I support, would be very powerful in saying that the views of those people are wholeheartedly rejected by all right-thinking people.

[Joanna Cherry]

I am grateful to the right hon. Gentleman for that point; I am also grateful for the support of the Liberal Democrats and, indeed, of Plaid Cymru for the motion.

Investigatory Powers Bill

Debate between Joanna Cherry and Alistair Carmichael

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Mr Carmichael]

I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.

We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.

On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.

[Joanna Cherry]

I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?

[Mr Carmichael]

The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.

To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.

That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.

Investigatory Powers Bill

Debate between Joanna Cherry and Alistair Carmichael

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

[Joanna Cherry]

I have unashamedly tabled a lot of amendments to the Bill, including to part 8, and the Scottish National party will also support amendments tabled by others.

I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), with whom I worked closely in Committee. There are areas of divergence between the SNP and Labour on the Bill, but it was a pleasure to work with him and I hope that there will be other occasions on which Labour and the SNP can work together harmoniously.

I recognise that the Government have made significant concessions on part 1 of the Bill. I welcome their attempt in new clause 5 to introduce an overarching privacy requirement. Their belated conversion to the central recommendation of the Intelligence and Security Committee is a tribute to the arguments advanced by Opposition Members in Committee. I have to say, however, that I prefer new clause 21, tabled by the Labour party, which trenchantly states that regard must be given to the Human Rights Act 1998. For reasons that other hon. Members have already given, that is important. It is encouraging to see the Government making reference in their own amendments to the Human Rights Act. That gives me hope that they might have retreated from their plan to repeal the Act even further than we had hoped. That could be one of the little bits of good news to come out of this exercise.

I am also happy to welcome Government new clause 6, and I thank the Minister for Security for acknowledging that it reflects an amendment that was tabled by my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and me. It is quite an historic occasion when the Government accept an amendment tabled by the SNP, and I should like to mark it. I just wish that they would look at more of my amendments, but I fear that they will not do so. We are, however, pleased that the Government have seen fit to respond to a number of the concerns raised in Committee. That said, I want to be clear that they will have to go an awful lot further before the Scottish National Party can contemplate giving the Bill our support.

As I said on Second Reading, we would like to be able to support some aspects of the Bill, because they are necessary for law enforcement across these islands and reflect some powers that are already in force in Scotland. It is also a good idea to consolidate the powers and to have a modern, comprehensive law. However, we remain concerned about the legality of some of the powers that are still on the face of the Bill and the fact that they significantly exceed, such as with the retention of internet connection records, what is authorised in other western democracies. We continue to have severe concerns about the bulk powers enabled by parts 6 and 7 of the Bill. We are pleased that the Government have conceded that there should be a properly independent review of the bulk powers, which was argued for by both Labour and SNP Members in Committee, but we are yet to see confirmation of the review’s remit. I want to associate myself with what the hon. and learned Member for Holborn and St Pancras said about the review needing to look not at whether the bulk powers are useful, but at whether they are necessary. We look forward to the publication of the correspondence between the Government and the Labour party, so that we can see what is being proposed. My hon. Friends the Members for Paisley and Renfrewshire North and for Glasgow North East (Anne McLaughlin) will address bulk powers and internet connection records in more detail tomorrow.

I led for the SNP in Committee, where we tabled numerous amendments to try to get the principle of suspicion-based surveillance to run throughout the Bill. We support the idea that warrants should be focused and specific and that oversight should be robust and meaningful. Nearly all our amendments were opposed or ignored by the Government, which is why we cannot give the Bill our support at this stage.

On Second Reading, the right hon. and learned Member for Rushcliffe (Mr Clarke) sought to mock me for making what he described as

“combative and partisan speeches in support of an abstention”.—[Official Report, 15 March 2016; Vol. 607, c. 847.]

He expressed a degree of confidence in a shared consensus across this House about the principles that we should be adopting. I am afraid that my experience in Committee has shown his confidence to be misplaced. The amendments tabled by the Government for debate today are only a partial response to our legitimate concerns. The Government need to pay more than lip service to the importance of privacy and to the principles of necessity and proportionality.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I am grateful to the hon. and learned Lady for giving way, because I agree with what she is saying. May I suggest that there is one means by which the Government could demonstrate good faith? In order to get to a vote on new clause 21, we will first have to vote down new clause 5. If the Government are serious about listening to the House, could they not withdraw new clause 5 to allow us to have a vote on new clause 21?

[Joanna Cherry]

That is an excellent suggestion that the Government should consider carefully.

I also mentioned on Second Reading that the United Nations special rapporteur had expressed concern about the Bill’s provisions, especially the bulk powers. That is why it remains the SNP’s position that until such time as a case has been made for the necessity of bulk powers, they should be removed from the Bill.

I make no apology for tabling numerous amendments, because this is a constitutionally important Bill. Their purpose is to try to bring the Bill into line with international human rights norms and to make it properly lawful. If the Bill is passed in its current form, there is a real risk that it will be the subject of challenge. Many of the threads running through it, such as the retention of data and bulk powers, have already been the subject of successful challenges or are awaiting the outcome of decisions. We need to be careful about passing powers into law when their legality has already been questioned by the European Court of Human Rights in Strasbourg, the European Court of Justice in Luxembourg, and a court in England.

In reality, I know that our amendments will not be accepted because we are already running out of time. We simply have not had enough time to consider the Bill. We have two days for Report, which I know is unusual, but we have short periods of time to speak about important parts of the Bill. I am only at the stage of making some introductory remarks and will have to curtail what I say about part 8 in the interest of other Members getting the right to speak. That will happen as we go through each part of programme motion.

Human Rights Framework: Scotland

Debate between Joanna Cherry and Alistair Carmichael

Wednesday 2nd March 2016 Westminster Hall

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I congratulate the hon. Member for Dumfries and Galloway (Richard Arkless) on obtaining this debate. I apologise for being a little late, but I caught up during the latter stages of his contribution. I was interested to hear the speech by the hon. Member for Rutherglen and Hamilton West (Margaret Ferrier), who dealt with the threat posed by the discussion that is clearly going on within Government on the future of the Human Rights Act 1998. Without disagreeing with what she said, this is a moment where we might stop and take stock. If the Government are conducting a good-faith exercise, it need not be a threat, and it could be an opportunity.

Let us not forget that the implementation of the Human Rights Act brought a greater and more immediate degree of access to convention rights. The convention was written in the 1950s and the framework of human rights and wider jurisprudence was very different from the one we have today. Nowadays, there is a whole range of different rights, including employment rights and social and economic rights, that are worthy of protection and of being given the same status as the right to a family life, for example, which is an important part of the ECHR. Those are the sorts of rights that I would like to see brought in. If this is a good-faith exercise on the part of the Government—that remains to be seen, and I am prepared to give them the benefit of the doubt for the moment, because we have never heard much by way of progress, although perhaps the Minister will have something to tell us today—I am happy to engage with them on the basis of broadening and strengthening the human rights covered by the Human Rights Act.

At this stage, it is useful to remember the history of the debate that brought us to where we are today. Essentially, the creation of the Human Rights Act and the terms in which it was introduced were something of a fudge. Throughout the 1990s and back into the 1980s—and possibly before that, for all I know—there was ongoing and substantial debate about the creation of a British Bill of Rights. I say that it was a fudge because the creation of a Bill in the terms that were discussed would have brought with it a fairly substantial challenge to the conventional Diceyan view of parliamentary sovereignty and the sovereignty of this place.

The justiciability of decisions taken by Government and Parliament was something that Tony Blair just did not have the stomach for taking on, even in the early years of the 1997 Government. For that reason, he came forward with a fudge, albeit an elegant one. It compelled courts to bring consideration of convention rights in an immediate way that meant that citizens did not have to go through the whole rigmarole of taking things to the European Court of Human Rights. Indeed, it has worked well ever since. In the time since the Human Rights Act was introduced, we have seen a substantial revision of the Diceyan view of parliamentary sovereignty. If we were to start with a Bill of Rights today, it would not scare the horses in the way that it clearly scared Tony Blair back in the late 1990s.

[Joanna Cherry]

Like me, the right hon. Gentleman is a Scots lawyer. Does he agree that the Diceyan view of the sovereignty of Parliament is very much a doctrine of English constitutional law? In Scottish constitutional law, there is a very strong foundation, recently reiterated by Lord Hope in the Supreme Court, in Jackson v. Attorney General, that the doctrine of parliamentary sovereignty is an English doctrine and that in Scotland the people are sovereign.

[Mr Carmichael]

That was a debate that we enjoyed in the 1990s—I say “enjoyed”, but I use the word in the loosest possible sense—in the days of the constitutional convention. It was the underpinning of the claim of right that led to the Scottish Parliament being founded. There is a fairly long pedigree of jurisprudence in Scots law. Dredging my memory of the days of constitutional law, I go back to the case of MacCormick v. Lord Advocate, where that view was well-founded, albeit in obiter dictum.

The opportunity is there for something more to be done with human rights and a new Bill of Rights that would build on the Act that we currently enjoy. I hope the Minister would be open to that. More important and more fundamental to me than the Human Rights Act is that this country should remain a party to the European convention on human rights. If the worst predictions of the hon. Member for Rutherglen and Hamilton West were to come true and the Human Rights Act were repealed, that would not deprive us of the convention rights; it would just make them that much more inaccessible. It would take us back to the situation we had before the 1998 Act, when citizens could access their convention rights, but it ultimately required going all the way to the European Court of Human Rights. That would be a genuine retrograde step.

To pick up the point made by the hon. Member for Dumfries and Galloway, that would also put us in rather poor company. In fact, leaving the convention on human rights would leave the United Kingdom sitting—I hope rather uncomfortably—with Belarus.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

It is a pleasure to serve under your chairpersonship, Mrs Main.

My hon. Friend the Member for Dumfries and Galloway (Richard Arkless), who secured this debate, made it clear that he specifically wanted to talk about legalities. He has argued that human rights are integral to the devolution settlement, and he referred to the fact that the European convention on human rights is written into the Scotland Act 1998 in sections 29 and 57, which provide that the Scottish Parliament cannot pass any legislation that is contrary to any of the convention rights, and a Scottish Minister or a Member of the Scottish Government cannot pass legislation or carry out any act that is contrary to convention rights. Neither of those sections would be changed by a simple repeal of the Human Rights Act, because they are part of the Scotland Act.

My hon. Friend also made the point that if we look at the scheme of devolution that was devised by the late Donald Dewar, who was the first ever First Minister of Scotland, his plan was simple and, in my view, to be lauded: everything would be devolved unless it was specifically reserved. We find in schedule 5 of the Scotland Act a list of the matters that are specifically reserved to the United Kingdom Parliament, but one will search in vain for any mention of human rights in schedule 5, so in my respectful submission it is not correct to say that human rights are a reserved matter. They are a devolved matter. My hon. Friend asked the Minister to confirm whether he agrees that, as a matter of statutory interpretation, human rights are not reserved to the United Kingdom Parliament.

It must be recognised squarely that in terms of schedule 4, the Human Rights Act cannot be modified or repealed by the Scottish Parliament. The Scottish National party and the Scottish Government accept that. However, we argue, as my hon. Friend did, that because human rights are not reserved in terms of the Scotland Act, if the British Parliament wants to repeal the Human Rights Act and replace it with a British Bill of Rights, it will be legislating in the field of human rights, and under the Sewel convention it must seek the legislative consent of the Scottish Parliament. Hopefully, by the time we get to that stage, the Sewel convention will be on a statutory footing as proposed in clause 2 of the Scotland Bill.

I reiterate my hon. Friend’s question to the Minister: does he accept that for repeal of the Human Rights Act, and for repeal of anything in the Scotland Act, a legislative consent motion would be required from the Scottish Parliament? Also, does he appreciate that as recently as the end of 2014, more than 100 Members of the Scottish Parliament indicated that they supported the Human Rights Act? A cross-party majority was in support. Is he also aware that the First Minister of Scotland, Nicola Sturgeon, has made it very clear that her Government, which has a majority in the Scottish Parliament, would never support repeal? So does he accept that, with regard to the future framework for human rights not only in Scotland but across the UK, the British Government could not repeal the Human Rights Act and replace it with a British Bill of Rights without the consent of the Scottish Parliament and that that is extremely likely to be withheld? The third question that my hon. Friend posed was the question of whether the British Bill of Rights will apply to Scotland. If it is going to apply to Scotland, does the Minister accept that there would have to be a legislative consent motion?

The First Minister of Scotland has been keen to emphasise on several occasions that she wants to preserve the Human Rights Act for the whole of the United Kingdom, not just for Scotland. There is no question of the Scottish Government doing a deal whereby Scotland would get out of the repeal of the Human Rights Act and leave the rest of our partner nations in the United Kingdom swinging in the wind. My hon. Friend the Member for Rutherglen and Hamilton West (Margaret Ferrier) stressed the universality of human rights, and the First Minister of Scotland has argued that it is important they are kept for the whole of the United Kingdom, so it is not the intention of the Scottish National party or the Scottish Government to do any deal. We would like to be involved in the cross-party movement to keep human rights for the whole of the United Kingdom.

That feeds into another point made by both my hon. Friends. The repeal of the Human Rights Act would send out completely the wrong message to the world about the United Kingdom’s direction of travel on human rights. It is striking to look at the testimony of Hossam Bahgat, the director of the Egyptian Initiative for Personal Rights. He was involved in the Tahrir square uprising five years ago and said:

“The most important thing that the British can do to support human, rights in Egypt is to support human rights in the United Kingdom...It is significantly more difficult for us to fight for universal human rights in our country, if your country publicly walks away from the same universal rights.”

To his great credit, the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve), made a similar point when he recently highlighted the fact that Russia is already using the UK’s position on human rights to delay implementing European Court judgments and that the UK is being cited by countries such as Venezuela as justification for ignoring obligations under the American convention on human rights.

When the right hon. and learned Gentleman spoke in Edinburgh last September, he described the ECHR as

“arguably the single most important legal and political instrument for promoting human rights on our planet.”

He has previously stated that if the UK is

“instrumental in damaging its effectiveness it will sit very strangely with our settled policy of promoting human rights globally.”

That is a voice from the Minister’s party supporting the notion that it would be unfortunate if Britain sent out the wrong message about our support for human rights.

[Mr Alistair Carmichael]

I very much agree with the hon. and learned Lady on the question of universality. When I went to Cameroon a few years ago to work on a Voluntary Service Overseas-funded project that provided legal aid to people who could not afford it, I was struck by the fact that when I went into lawyers’ offices and courts, there was the universal declaration of human rights. We always think of it as being quite high-flown and possibly even overblown, but they rely on it in courts of first instance. Does the hon. and learned Lady agree that the Human Rights Act need not be the last word in human rights? Legislation could be introduced in several areas to give protection that is more contemporarily relevant than that envisaged in the 1950s.

[Joanna Cherry]

I absolutely agree with the right hon. Gentleman. As my hon. Friend the Member for Dumfries and Galloway indicated, the Scottish Government are already attempting to hard-wire human rights into all their social policy—not only the human rights enshrined in the ECHR, but social and economic rights. For example, the Scottish Government have made it clear that when they have the additional powers they hope to get to develop a social security system for Scotland, respect for the dignity of the individual will be at the heart of the system. We are keen to move the human rights debate on in Scotland, which is why the Scottish Government brought in Scotland’s national action plan for human rights. When the Council of Europe’s Commissioner for Human Rights visited Scotland in January, he singled out the national action plan for support.

I totally agree with the right hon. Gentleman that socioeconomic rights are important. Many other countries in the world recognise that and have such rights in their written constitutions. The constitution of the new Republic of South Africa, which was drafted, at least in part, by one of the finest lawyers on the planet still living, Albie Sachs, recognises the importance of socioeconomic rights, which are embedded in it. Some of the Nordic states’ constitutions also embed socioeconomic rights. As my hon. Friend the Member for Dumfries and Galloway said, it is our hope that when we become independent we will have a constitutional convention to write a constitution for an independent Scotland. We will look at the models and examples of other forward-looking democracies—not only in the west, but including examples such as South Africa—and seek to write socioeconomic rights into our constitution.

There is universal recognition among all those who have spoken so far of the importance and universality of human rights. We are of one voice, across the SNP-Lib Dem divide, in saying that socioeconomic rights are important and that the rights in the ECHR are only a floor for human rights, not a ceiling. The right hon. Member for Orkney and Shetland (Mr Carmichael) expressed the hope that the currently proposed consultation might be brought forward and might look at socioeconomic rights. I am far less of an optimist than he is. All the noises I have heard coming from the Government Benches have suggested that it will be an exercise in reducing rather than bolstering human rights protections. Regardless of the purpose of the exercise, do the Government accept that human rights are devolved, not reserved, and that the legislative consent of the Scottish Parliament must be sought before there is any interference in the human rights regime that effects Scotland?

Scotland Bill

Debate between Joanna Cherry and Alistair Carmichael

Monday 15th June 2015 Commons Chamber

[Joanna Cherry]

I rise to speak in favour of amendments 62 and 67. Amendment 67 would introduce to clause 11 a subsection that would remove the Human Rights Act from the list of protected provisions in schedule 4 to the Scotland Act 1998.

In the debate on the Gracious Speech, the Home Secretary confirmed that a Bill will be brought forward during this Parliament to introduce a Bill of Rights and to repeal the Human Rights Act. The Scottish National party has consistently opposed repeal of the Human Rights Act. We won the election in Scotland and therefore there is no mandate from the Scottish people for repeal of the Act. None the less, the Secretary of State for Scotland has confirmed, albeit on Radio Scotland, that repeal of the Human Rights Act will apply equally in Scotland as in England. At present, the Human Rights Act is listed as a protected provision in schedule 4 to the Scotland Act, which means that the Scottish Parliament cannot modify the Human Rights Act. Amendment 67 would change that.

The UK Government have not been clear on how potential changes to the United Kingdom’s relationship with the European convention on human rights and the abolition of the Human Rights Act could impact on the place of the ECHR in Scotland’s constitutional settlement. That is important because the ECHR is entrenched in the Scotland Act. For example, section 29(2)(d) provides that a provision that is incompatible with the ECHR is outwith the legislative competence of the Scottish Parliament, and section 57(2) provides that a member of the Scottish Government has no power to make any subordinate legislation or to do any act in so far as that would be incompatible with the ECHR.

Neither of those sections would be changed by simple repeal of the Human Rights Act alone. It is clear, therefore, that human rights are not specifically a reserved matter; they are partially devolved. Scottish National party Members therefore argue that any repeal of the Human Rights Act without first consulting the Scottish Parliament would violate the Sewel convention, whereby the Westminster Government will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.

Matters are further complicated by the fact that the Smith commission and the draft clauses proposed putting the Sewel convention on a legislative footing. There is therefore the prospect of a very real clash between the United Kingdom Government commitment to revise and reduce the role of the ECHR in United Kingdom law and their commitment to the Scottish electorate to implement the vow. There is a real possibility of a clash between the Scottish and Westminster Parliaments.

It is worth pausing to look at the realities of human rights in the United Kingdom and why they matter. As I said in my maiden speech, the United Kingdom in fact loses very few of the cases brought against it in Strasbourg. The United Kingdom once had a proud tradition of leading in Europe on human rights. It was elected to membership of the United Nations Human Rights Council in 2014 on a prospectus claiming that it was

“a passionate, committed and effective defender of human rights”.

Repealing the Human Rights Act would not really live up to that claim and would send out all the wrong signals. The right hon. and learned Member for Beaconsfield (Mr Grieve) said in 2014 that the proposal to repeal the Human Rights Act represented a

“failure of ambition…on the global promotion of human rights”.

Human rights matter to ordinary people in this country. Those who have benefited from the Human Rights Act include victims of domestic violence, who have been able to get better protection, and victims of rape, who have used the Act to ensure that the police properly investigate offences. Lesbian, gay, bisexual, transgender and intersex people have used human rights to overcome discrimination in this country. The families of military personnel killed on active service because the Ministry of Defence supplied them with outdated equipment have also benefited under the Human Rights Act. These rights are very real for ordinary United Kingdom citizens.

In Scotland, we have a national action plan for human rights, which has been co-produced in partnership with wider civil society. We have a United Nations- accredited Scottish Human Rights Commission, which is internationally acknowledged as one of the world’s best. As I said in my maiden speech, our commitment to human rights in Scotland extends not just to the ECHR, but beyond that to social and economic rights. Through our work on social justice and challenges such as that on fair work, we are intent on ensuring that people in Scotland can enjoy their economic, social and cultural human rights. Scotland is also a world leader in its work to give full effect to the rights of children. We are very proud of that record in Scotland and we wish to protect it—hence amendment 67.

As I have said, the amendment would have the effect of removing the Human Rights Act from the list of enactments that cannot be modified by the Scottish Parliament. If the Scottish Parliament was able to modify the Human Rights Act, that would allow the Scottish Government and the Scottish Parliament to establish a human rights regime in Scotland regardless of whether the Act was repealed by the UK Parliament.

I hasten to add that, as our First Minister has said, the SNP is committed to opposing the repeal of the Human Rights Act for the whole of the UK, not just for Scotland. However, in the unfortunate event that it is repealed for the whole of the UK, amendment 67 would enable us to do something about it, at least in Scotland. That position has the overwhelming support of the Scottish electorate, as evidenced by the 56 out of 59 MPs sitting beside and behind me.

[Mr Alistair Carmichael]

I will not detain the Committee because time is pressing.

I tabled amendments 21 and 22, which were authored by the Law Society of Scotland. The two issues that they deal with are fairly short in their compass and I do not intend to press them to a Division. However, I will be interested to hear the Minister’s response to them and to have it on the record.

Amendment 21 would include the parliamentary term of the Scottish Parliament within the provisions that can be altered only by way of a super-majority. Under amendment 22, the same would be true of boundaries. It is the wish of the Law Society of Scotland that it should not be possible to influence those matters by a simple majority merely for political advantage.