Bill of Rights

Debate between Joanna Cherry and Dominic Raab

Wednesday 22nd June 2022 Commons Chamber

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

As acting Chair of the Joint Committee on Human Rights, I wish to remind the Secretary of State that we have completed two in-depth, unanimous cross-party reports, which concluded that the Human Rights Act is working well and does not need to be repealed or replaced. Indeed, that was the conclusion of the independent review, which the Secretary of State commissioned and then ignored.

When we visited Strasbourg last week, we were told that UK Government Ministers have given repeated assurances that the UK will remain in the ECHR, and I was pleased to hear the Secretary of State reiterate that assurance this morning. However, the Prime Minister did make some veiled threats in the opposite direction last week. If we are to stay in the ECHR, it needs to be done with integrity. We cannot pick and choose which convention rights we want to observe or for whom we want to observe them. Does the Secretary of State appreciate that the United Kingdom’s disengagement from the ECHR—make no mistake, Mr Speaker, that is what this Bill is about—risks giving encouragement to populist Governments in eastern Europe who have scant regard for human rights or, indeed, the rule of law?

[The Deputy Prime Minister]

No, I am afraid I do not agree with the hon. and learned Lady, not least because I do not see how she can sustain the argument that we are dislocating ourselves when not only are we remaining a state party, but it is in the Bill of Rights as well.

I pay tribute to the work of the hon. and learned Lady’s Committee. I appeared in front of the JCHR on 8 December. The noble Lord Wolfson appeared on 2 February, and I am attending again on 20 July. We will pay great respect to the role of the Joint Committee, but, of course, we know that there are likely to be objections and we will try to assuage those held by her and her members as best we can.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 9th November 2021 Commons Chamber

[Dominic Raab]

My right hon. Friend is right that we have seen a 12% boost to the Department’s budget, which will see £11.5 billion invested by the end of the Parliament. That will help us build prison places and invest in tagging as well as the drugs, skills and work regimes for people in prison and on licence to cut reoffending and protect the public.

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

The Law Society of Scotland has explained in detail why clause 2 of the Judicial Review and Courts Bill requires the Scottish Parliament’s legislative consent—it is basically because judicial review is a devolved matter. When I raised that with the Minister on Second Reading, he said that he would write to me addressing the Law Society’s detailed arguments. When should I expect to receive that letter?

Judicial Review and Courts Bill

Debate between Joanna Cherry and Dominic Raab

2nd reading
Tuesday 26th October 2021 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Dominic Raab)]

I beg to move, That the Bill be now read a Second time.

This Bill makes good on our Government’s manifesto pledge to ensure that judicial review is not subject to abuse and to deliver more effective, more efficient justice for the citizens of our country. I pay tribute to my right hon. and learned Friend the Member for South Swindon (Robert Buckland) for all of his work in preparing the Bill and for his outstanding tenure as Lord Chancellor and Justice Secretary.

I first want to address the so-called Cart reviews. That is the means by which the High Court reviews decisions of the upper tribunal to refuse permission to appeal a first-tier tribunal decision.

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

Will the right hon. Gentleman give way?

[Dominic Raab]

May I make a bit of progress?

Let me take one immigration case by way of illustration. A claimant whose leave to remain was revoked because of his dishonesty challenged that decision in the High Court. He was granted permission to bring his judicial review despite exhausting the appeal process at the immigration tribunal. The challenge was eventually dismissed, but not before it was sent back to the upper tribunal. At that point, the judges, Messrs Lane and Ockleton, noted that

“it appears that permission was granted on grounds which had no merit, ought to have been withdrawn by their proponent, and do not seem to have been regarded as giving a reasonable prospect of success even in the granting of permission.”

That is just one illustration. To give a sense of scale, on average, there are 750 judicial reviews against the upper tribunal alone each year, the vast majority of which are immigration cases. The success rate is just 3.4%. For completeness as well as appeals on immigration, the upper tribunal also hears cases on administrative and regulatory matters—things such as social security tax and property cases.

[Joanna Cherry]

I am grateful to the Lord Chancellor for giving way. I would like to intervene later on the specifics of this matter, but may I start by asking him this: the right to judicial review in Scotland is protected by article 19 of the Treaty of Union and it is a devolved matter under the Scotland Act 2016. His predecessor gave me a written assurance that the focus of this Bill would be on UK powers and procedures relevant only to the jurisdiction of England and Wales. Will he tell my why that promise has been broken?

[Dominic Raab]

It has not been broken, but I shall come on to address that when I deal with the devolution dimension in a little while.

Of course there must be accountability, but allowing such a large volume of flawed challenges just skews the system. Allowing a legal war of attrition—not just against the Government, but, as in this case, against the judiciary themselves—undermines the integrity of the two-tier tribunal process, which was set up precisely to deal both fairly and efficiently with immigration cases. That wastes court time and taxpayers’ money, which should be focused on reviewing more serious and credible cases. The Supreme Court Justice Lord Brown foresaw that this very problem would arise in his judgment in the original Cart case back in 2011 and he said then that

“the rule of law is weakened, not strengthened, if a disproportionate part of the courts’ resources is devoted to finding a very occasional grain of wheat on a threshing floor full of chaff.”

Regrettably, he was proved right. It is also worth noting the more recent commentary by Lord Hope of Craighead, another of the presiding judges in the Cart case, who said in the other place earlier this year that these types of reviews have not worked and that it is time “to end them.”

[Dominic Raab]

Of course I cannot second guess the judicial decisions made in individual cases, but what I can say is that of course we want to protect the integrity not just of judicial accountability, but of the tribunal process, which we have established precisely to deal with those cases as well as others that I have discussed. The Bill will address the problem in a sensible and proportionate way, preventing Cart appeals except in the most exceptional circumstances, such as the upper tribunal deciding a type of case outside its jurisdiction, in bad faith or with some fundamental procedural error, such as not hearing one side of the case, which would clearly be wrong. Our approach will ensure that the 180 judge-days spent on Cart reviews, every year, are no longer wasted. In that way, taxpayers’ money is saved and the immigration system can function more effectively.

I would be interested to know whether Labour will support us in this matter. I have done my homework—[Interruption.] The right hon. Member for Tottenham (Mr Lammy) is laughing, but if Labour plans to vote against this Bill on the basis of Cart, I would point out that the shadow Justice Secretary personally proposed a much broader so-called ouster clause back in 2003 in Labour’s Asylum and Immigration Bill—[Interruption.] The right hon. Gentleman said that he was young and naive. I am not sure what that makes him now. Forgive me if I am reminding him of a stressful moment in his career, but it was the Asylum and Immigration Bill back in 2003. It did not have any of the exceptions and it was not as constrained as the Bill before the House today. He did not just support the measure; he proposed the measure. He was a Minister in the Department for Constitutional Affairs. I am not sure whether he has forgotten about that, but I am afraid that the Opposition have zero credibility in opposing a more targeted measure that they proposed before.

The Bill will remove Cart for the whole of the UK, but only in respect of reserved matters. I hope that all hon. Members will agree that we must have consistency in routes of appeal to preserve a coherent and efficient immigration policy and indeed the integrity of the UK’s borders.

[Joanna Cherry]

The Lord Chancellor will be aware—I am sure that this will be covered in other speeches—that the evidential basis for this law change in England has been questioned, but the Law Society of Scotland has said that there is no evidence of any such problem in Scotland. On the contrary, there is good recent evidence of a Cart—or Eba judicial review as we call them in Scotland—in which the first tier tribunal and the upper tier judge misunderstood the petitioners’ evidence, and the Appeal Court intervened to reduce the upper tribunal’s decision, refusing it permission to appeal. Does he accept that there is absolutely no evidential basis, north or south of the border, for the need for these kind of procedures to be withdrawn, and can he tell me why he is forcing a restriction on the Scottish legal system for which there is no evidential basis?

[Dominic Raab]

In fairness, I think have presented the evidential basis: 750 cases each year and barely a 3% success rate. Of course, the integrity of the tribunal needs to be protected. There are safeguards and exceptions. The Bill is not nearly as broad as the Bill tabled by the right hon. Member for Tottenham back in 2003. This is the right way for the House to proceed.

[Joanna Cherry]

Will the Secretary of State give way?

[Dominic Raab]

I will make some progress; I have given way to the hon. and learned Lady twice.

The Bill will reform quashing orders so that we can strike a better balance between the essential judicial accountability over the Executive and the ability of an elected Government to deliver their mandate in a lawful but orderly way. Let me give one example: the case of Her Majesty’s Treasury v. Ahmed back in 2010. In that case, the then Government acted on best information, including intelligence, and froze the funds of three brothers suspected of being al-Qaeda terrorists. They did so under the auspices of two Orders in Council, which were made in 2006 under the powers of the United Nations Act 1946. The Supreme Court considered whether the orders were ultra vires of that Act and therefore invalid.

The 1946 Act gave the Government the power to give effect to UN Security Council resolutions on threats posed by international terrorism. However, the Supreme Court decided that the orders went beyond what was necessary and expedient for implementing the relevant resolution, because the orders provided that a person’s assets could be frozen on the basis of a “reasonable suspicion” of involvement in terrorism, rather than a higher standard of evidential proof that the court deemed that the law required. The court quashed the orders immediately, irrespective of the ability of the Government to reassess or revise the order, because it concluded that it did not have the power to suspend the effect of the quashing order. That required Parliament to rush through new legislation to protect the public by preventing suspected terrorists from accessing those funds, because Ministers no longer had the powers that they believed they could exercise under the relevant legislation.

This Bill simply remedies that measure of inflexibility by giving the judiciary the power to issue a suspended—or, indeed, a prospective—quashing order, allowing the Government a reasonable period of time to review the orders and/or the legislation itself. If that had been available in the Ahmed case, it could have prevented considerable disruption and potential risk, while safe- guarding the judiciary’s vital scrutiny of the Executive in such an important area of national security.

Hong Kong National Security Legislation: UK Response

Debate between Joanna Cherry and Dominic Raab

Tuesday 2nd June 2020 Commons Chamber

[Dominic Raab]

My hon. Friend is quite right to reflect, as others have done already, on the fact that if China is willing to interfere on political and autonomy grounds, it is also likely to pose a longer-term threat to the economic prosperity and economic model that Hong Kong reflects and embodies. We in the UK are mindful of that, not only from an investment point of view but, frankly, from the point of view of individuals who are trying to run livelihoods or invest in Hong Kong. The sad reality is that if China continues down this track, it will strangle what has long been the jewel in the economic crown. It is clear to me that China is putting politics, as it views it, ahead of economics. I am afraid that is a natural consequence of the creeping violation of Hong Kong’s autonomy that we see.

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

Freedom of expression and peaceful assembly are precious human rights the world over. I am sure we have all been reminded of that as we have watched the situation in the United States of America develop over the past 48 hours—I heard what the hon. Member for Leicester East (Claudia Webbe) had to say about that—but what specific representations and specific pressure is the Secretary of State bringing to bear on the Government of Hong Kong to ensure that police handling of protests is necessary and proportionate?

[Dominic Raab]

I totally agree with the hon. and learned Lady on that point. We disagree about many things, but one thing about which we have always firmly agreed is the upholding of those elementary human rights, including the essential freedoms of peaceful protest, which are the aspiration of the people of Hong Kong. As I mentioned to the shadow Foreign Secretary, the hon. Member for Wigan (Lisa Nandy), I raised the need for a fully independent and robust investigation into the recent events, including the police treatment of protesters, in my first conversation with Carrie Lam back on 9 August. I made that clear then and we have done so consistently since. We recognise the concerns about the Independent Police Complaints Council and we have been working to see what we can do to reinforce it and to make it stronger. We also recognise the inherent weaknesses in it, which is why we will continue, in line with the shadow Foreign Secretary, to call for a fully independent inquiry into those actions. I hope the hon. and learned Lady will support that.

Turkish Incursion into Northern Syria

Debate between Joanna Cherry and Dominic Raab

Tuesday 15th October 2019 Commons Chamber

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

On Radio 4 this morning, there was harrowing testimony from a British woman who is a volunteer ambulance driver in the region about the atrocities that she has witnessed. There is a big Kurdish community in Scotland, and they have a community centre at Dumbryden in my constituency. I know that the Kurdish community in my constituency will be very keen to know, as I am, what assistance the UK Government are giving, as opposed to UK volunteers on the ground, and what steps the UK Government are taking to prevent such atrocities from being perpetrated against civilians by our NATO ally.

[Dominic Raab]

The hon. and learned Lady makes a very powerful point, and I pay tribute to her for the work she does with her community centre for the Kurdish community here. I think a lot of hon. Members in all parts of the House will be in a similar position. The best we can do, given this dire situation, is seek to end Turkey’s military incursion as soon as possible, continue to talk with all our partners and allies—right across the spectrum from the United States through to our European partners—and work very closely with the UN agencies to try both to prevent those atrocities from happening and to provide the humanitarian help that many so sorely need.

Leaving the EU: Meaningful Vote

Debate between Joanna Cherry and Dominic Raab

Monday 22nd October 2018 Commons Chamber

[Dominic Raab]

There is nothing tokenistic about the meaningful vote set out under section 13, which will be on the deal that we do with the European Union—good for the UK and good for the EU—or the alternative, which is to leave the EU without that deal. The procedure that my hon. Friend refers to is clearly spelled out in section 13. The memorandum to which she referred was not somehow snuck out; it was given at the request of the Procedure Committee and made public so that every hon. Member could see it.

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

A number of parliamentarians are trying to establish whether article 50 can be unilaterally revoked. The Court of Justice of the European Union will hear that question on 27 November. If it says that article 50 can be revoked, does the Secretary of State accept that it would be open to this House to amend the Government’s motion, ordaining them to take whatever action is necessary to revoke article 50 and get us out of this unholy mess?

[Dominic Raab]

The Government have no intention of supporting a second referendum or the revocation of article 50.

Brexit Negotiations and No Deal Contingency Planning

Debate between Joanna Cherry and Dominic Raab

Tuesday 4th September 2018 Commons Chamber

[Dominic Raab]

My hon. Friend is absolutely right. It sounds like my permanent secretary was doing a rather good job earlier today, so I will go immediately back to the Department and praise him to the rooftops. On the timing, we need to aim for the October Council; there is a measure of leeway and we need to be mindful of the Brussels process and that there is some slippage, but I think we should be aiming for the October Council.

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

An opinion poll commissioned by Best for Britain showed yesterday that a majority of Scots favour independence if the UK leaves the European Union as planned; is that a risk the Minister is willing to take?

[Dominic Raab]

The hon. and learned Lady will know that our proposals are devised to make sure we have a strong deal with the EU that works for all quarters of the UK and respects the territorial and economic integrity of the UK—and, no, what she asks is not something we are willing to countenance.

EU Withdrawal Agreement: Legislation

Debate between Joanna Cherry and Dominic Raab

Tuesday 24th July 2018 Commons Chamber

[Dominic Raab]

I think that many European businesses are well aware of that. On Friday, we had a meeting at Chevening with a whole range of leaders of businesses small and large, and there was widespread positive feeling about our negotiating position and many offers to help. It will not be just me going around the capitals of Europe; there will be a lot of support from businesses trying to ensure that we get this deal in the principled, pragmatic way that has been set out in the White Paper.

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

In the Secretary of State’s previous incarnation, he campaigned for the repeal of the Human Rights Act and its replacement with a Bill of Rights. Despite campaigning vigorously since 2009, he failed to secure his objective, and the Government have now ditched the policy. What makes him think that he can finalise the remaining 20% of the withdrawal agreement and solve the difficult question of the Irish border in a matter of months?

[Dominic Raab]

I always argued that we should stay within the European convention on human rights, but that we should look at how it is implemented in UK law. However, the Government’s position is clear on that. More broadly, the hon. and learned Lady is quite right to point out the time pressure that we are under, but we have set out a principled but pragmatic approach. We are bringing extra energy to the negotiations. I am going out to see Michel Barnier again on Thursday and will be offering to see him regularly throughout the summer. If that good will, pragmatism and energy are reciprocated, we will get a deal in October.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 5th December 2017 Commons Chamber

[Dominic Raab]

My hon. Friend is right. Of course, I take very seriously the concerns of those who think we need to mitigate the risks, and that is what our negotiations and the EU (Withdrawal) Bill will do. We also have a huge opportunity to promote UK legal services on a global level through trade liberalisation and by promoting the UK as a hub for international dispute settlement. We should grasp the opportunities as well as managing the risks.

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

Last month—just two weeks ago—while the House debated the EU (Withdrawal) Bill, the Prime Minister’s spokesman told journalists that the Government expect the role of the European Court of Justice to remain unchanged during an implementation period of two years after the Brexit date in March 2019. Will the Minister confirm to the House that that means that it will not be possible to bring into force large parts of the EU (Withdrawal Bill), including the repeal of the European Communities Act 1972, until the end of the implementation period?

[Dominic Raab]

The position is set out in the EU (Withdrawal) Bill, and the hon. and learned Lady will know from Committee debates that we have made it very clear that we are not going to pre-empt or prejudge the outcome of the negotiations on either the withdrawal agreement or the implementation period.

[Joanna Cherry]

Last week “Sky News” reported that the Government wish to stay in the European Aviation Safety Agency after Brexit and accept that that will mean remaining under the jurisdiction of the European Court of Justice, because it is the ultimate arbiter of EASA rulings. Will the Minister now confirm that this means the Prime Minister’s red line of no ECJ jurisdiction after Brexit has been shown to be utterly and completely untenable?

[Dominic Raab]

I am afraid that the hon. and learned Lady is relying yet again on second-hand reports via the media. We will not pre-empt or prejudice the outcome of negotiations on the partnership deal, and I hope that she will support us in getting the very best deal for that sector and for the UK as a whole.

European Union (Withdrawal) Bill

Debate between Joanna Cherry and Dominic Raab

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Dominic Raab]

I will just make a little bit of progress and then I will give way to my right hon. and learned Friend.

I will address the detail of this by reference to the new clauses and amendments that have been tabled, because they usefully highlight and flag up the different concerns of hon. Members. As a matter of guiding principle, I hope all hon. Members can agree that we should not make changes that exacerbate the risk of legal uncertainty, which I think goes to the point my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) was making in his intervention. Our substantive law will remain the same on exit day, but it would be wrong in principle—indeed, I think we would find it counter- productive in practice—to seek to cling to all the procedural mechanisms that are inherent, intrinsic and inextricable institutional features of EU membership.

[Joanna Cherry]

Will the Minister give way?

[Dominic Raab]

I will not give way just for the moment, but I will give way to the hon. and learned Lady shortly.

--- Later in debate ---

[Joanna Cherry]

Will the Minister give way?

[Dominic Raab]

I will give way shortly to the hon. and learned Lady, because I know she supports some of the amendments.

I turn now to amendments 297, 298 and 299, tabled my right hon. and learned Friend the Member for Beaconsfield, and to amendments 285 and 286, tabled by the leader of the Labour party, the right hon. Member for Islington North (Jeremy Corbyn). My right hon. and learned Friend the Member for Beaconsfield wishes to remove any reference to “any rule of law”, which is a reference in the Bill to common law rules in relation to provisions addressing supremacy of EU law. In effect, his amendments—at least as I have understood them, and I stand to be corrected—would allow EU law to continue to trump the common law after the date of exit. However, this would undermine both of the key strategic objectives of the Bill. It would mean in relation to common law rules articulated after exit day that retained EU law trumps them, undermining the UK’s basic constitutional hierarchy that we are seeking to restore and affirm.

--- Later in debate ---

[Dominic Raab]

My hon. Friend makes a considered and thoughtful point. Given the changes we are making—for the purposes of greater certainty and clarity—I respectfully suggest to my right hon. and learned Friend the Member for Beaconsfield and other hon. Members across the House that it is worth having some clarity and certainty on this point.

I turn now to amendments 285 and 286. We discussed similar amendments from the leader of the Labour party on day one of the Committee in relation to clause 6, and for the same reasons given during that debate, we cannot support them. I note again what the Prime Minister said in her Florence speech:

“The United Kingdom will cease to be a member of the European Union on the 29th March 2019”.

I will not speculate on the contents of the withdrawal agreement. The Government will do whatever is necessary to prepare for our exit and have already made it clear that separate primary legislation will be brought forward to implement the terms of the withdrawal agreement and any implementation period. With that in mind, the amendments would pre-empt and prejudge the outcome of the negotiations and introduce a straitjacket of inflexibility for the duration of any implementation period. We are all in the House committed to securing the very best deal with our EU friends and partners, and I respectfully suggest that the amendments would undermine that objective. I urge the leader of the Labour party not to press them.

[Joanna Cherry]

The hon. Gentleman said earlier that one of his guiding principles was not to exacerbate any legal uncertainty, but the Exiting the European Union Committee has heard evidence from a senior lawyer that the body of retained law will contain instruments that make explicit reference to the charter. If the charter is not part of retained EU law, how are the courts supposed to interpret the body of retained law that refers to it?

[Dominic Raab]

The hon. and learned Lady makes a perfectly respectable and legitimate point, but I will address it in the context of amendment 8, tabled in the name of the my right hon. and learned Friend the Member for Beaconsfield, and amendment 46, tabled in the name of the Leader of the Opposition, both of which, in different ways, seek to retain the charter of fundamental rights in domestic law after exit by removing subsections (4) and (5) of Clause 5. I understand and appreciate the sentiments behind the amendments. Hon. Members are understandably concerned that as we leave the EU we do not see any diminution or reduction in the substantive rights we all enjoy. The Government are unequivocally committed to that objective. I remind the Committee again of the country’s record of pioneering, defending and protecting human rights standards since well before the EU existed and of our ability as a nation to withstand the darker moments in European history that have touched other less fortunate nations.

--- Later in debate ---

[Dominic Raab]

I am going to make a bit of progress, but I will give way shortly.

Let me, again, be clear about what the Bill does. It takes a snapshot of substantive EU law, including the underlying fundamental rights and principles at the point of exit. It converts those into UK law, where they will sit alongside the Human Rights Act and other UK legislation on human rights. That is a crucial point. As my right hon. and learned Friend the Member for Beaconsfield rather perceptively asked during debates on the Lisbon Treaty in 2008,

“Will the Lord Chancellor confirm that every country that is a member of the European Union is also a signatory of the European Convention on Human Rights? Indeed, I believe that every single one has incorporated it. In view of that, what is the purpose of the charter of fundamental rights?”—[Official Report, 5 February 2008; Vol. 471, c. 804.]

During the same debate, my right hon. and learned Friend made the point, far better than I can—and I say this with all due deference—that the risk of adopting the charter was that it would, at least potentially, run into conflict with domestic human rights law, thereby creating at least the potential for legal confusion. This is the point that I want to make to my right hon. and learned Friend the Member for Rushcliffe. If we incorporated or implemented the charter, we would in effect be triplicating human rights standards in UK law, opening up wide scope for uncertainty. My right hon. and learned Friend the Member for Beaconsfield was right about that then, and I think he is right about it now.

[Joanna Cherry]

With all due respect, I do not understand the point that the Minister is making. The charter is already part of UK law, because we are a member of the European Union.

[Dominic Raab]

As we leave the European Union, it will make no sense to retain the institutional framework of membership. What we will do is retain, in the way that I have described very carefully, the substantive rights that were codified in the charter. If, when we publish the memorandum, the hon. and learned Lady, or any Member on either side of the House, thinks that there is a gaping gap, we will be able to address that.

--- Later in debate ---

[Joanna Cherry]

I rise to give my support and that of the Scottish National party to the amendments designed to retain the charter of fundamental rights in domestic law, and those designed to preserve legal remedies for individuals and businesses to enforce these rights in the courts and to be compensated when the rights are breached.

It is heartening to see such strong cross-party support for these amendments. I very much hope that the Conservative rebels will have the courage of their convictions to push these amendments to a vote tonight, despite the unpleasant pressure they have been subjected to as a result of the actions of certain newspapers. That is a matter for them. There are other cross-party amendments on the charter that I am sure will be pressed to a vote if those in the name of the right hon. and learned Member for Beaconsfield (Mr Grieve) are not.

Before I address why the SNP supports these amendments, I have a crucial question for the Minister. It needs to be answered, not for my benefit, but for the benefit of the whole House and, indeed, the country. The clause we are debating revolves around the supremacy of EU law and whether the charter will be part of domestic law after exit day, but, as has already been mentioned in our debate, this morning the Prime Minister’s official spokesman told a routine Westminster briefing that the Government expect

“the ECJ’s role to be unchanged during an ‘implementation period’ of around two years following the official Brexit date in March 2019”.

Are those on the Treasury Bench aware of that statement? Can they explain to us how it impacts on what we are debating today? If the Prime Minister is of the view, as her spokesman has said, that the Court of Justice’s role will be unchanged during a two-year implementation period from exit day, not only is the rather ridiculous amendment brought to this House by the Government last week defining exit day rendered utterly meaningless, but much of the debate we are having this afternoon about clause 5 and, indeed, the debate we had last week about clause 6 and other clauses are rendered meaningless.

I am not trying to score a party political point here. This is a matter of legal certainty which is of the utmost importance to all UK citizens and to UK business and universities. Which is it? Is what the Prime Minister’s official spokesman said this morning correct? Is the Court of Justice’s role going to continue unchanged during a two-year implementation period and, if so, how does that impact what we are debating today? I am very happy for the Minister to intervene on me to clarify that, but if he wishes to take advice, I am sure that his ministerial colleague the Solicitor General will clarify that vital point and the impact of the Prime Minister’s statement this morning on the entirety of this Bill, and most particularly the clause we are debating.

In any event, if this somewhat holed-beneath-the-waterline Bill is to survive and limp on, the SNP commits itself wholeheartedly to the amendments to keep the charter of fundamental rights, to keep individuals’ and businesses’ rights to sue and enforce, and to make those rights meaningful, because that is what the individual right of enforcement and Francovich damages are all about: making rights meaningful. For anyone who has studied law, a right without a remedy is a pretty useless thing; it is trite law.

The Scottish Government published their programme for government earlier this year, and reiterated their commitment to international human rights norms. It is important to remember that human rights are not wholly reserved by this Parliament when it comes to the devolution settlement, so what the Scottish Government choose to do could be very important, particularly if Scotland is to be taken out of the European Union against her will. My colleagues in the Scottish Government have emphasised that it is essential that existing safeguards are not undermined by Brexit, and that the rights enjoyed by everyone in these islands, as EU citizens, need to be permanently locked into a future deal. That is why we oppose the removal of the EU charter of fundamental rights from domestic law, and why we opposed the Government’s previous desire to repeal the Human Rights Act.

I was interested in the Minister’s reiteration—in fairness, this has been reiterated by the Government several times as part of this debate—that there is no intention to withdraw from the European convention on human rights. But, as I have already said, rights without remedies are not much use. The great thing about the Human Rights Act was that it gave UK citizens the opportunity to enforce their rights by raising actions in the courts of their own jurisdiction. Will the Minister—or the Solicitor General, when he gets to his feet—confirm the Government’s intentions regarding the Human Rights Act?

[Dominic Raab]

I think I have already said this, but I am very happy to reaffirm for the hon. and learned Lady that the Government have no plans to withdraw from the ECHR, or to revise or repeal the Human Rights Act.

[Joanna Cherry]

I am grateful to the Minister for that. I had understood that the revision and repeal of the Human Rights Act was on the back burner, but Members on this side of the House and many Conservative Members can celebrate a great victory if that plan has now been dropped and the Government are backing down on it. Unfortunately, I very much doubt that we will be in the mood for celebration as we are facing the Government’s chaotic plans for Brexit, and that is what we have to discuss today.

My colleagues in the Scottish Government in Edinburgh have recently reiterated their firm commitment to the idea that international human rights norms should not just be signed up to by the jurisdictions of these islands, but should be given direct effect by giving individuals and businesses the opportunity to raise and realise their rights in the courts. The Scottish Government have indicated that they intend to

“implement the socio-economic duty in the Equality Act 2010 by the end of this year, placing a requirement on key parts of the public sector, including Scottish Ministers, to have due regard to reducing the inequalities caused by socio-economic disadvantage when taking strategic decisions. This is a key component of our approach to tackling poverty.”

The Scottish Government also committed in their programme for government to look at how they can further embed human, social, cultural and economic rights, including the UN convention on the rights of the child. That is an indication that the Scottish Government’s direction of travel on international human rights norms is very different from the UK Government’s. It reflects the fact, as I said earlier, that human rights are not a reserved matter save in so far as the repeal or amendment of the Human Rights Act is concerned. Indeed, the Scottish Government have the power to legislate to protect human rights and intend to do so.

That leads me to comment briefly on new clause 78 and a new right in relation to equality that is intended to apply across the United Kingdom. There is a laudable intention behind the new clause, but its application in Scotland, Wales and Northern Ireland would require discussion with and the consent of devolved Administrations, if it were to be incorporated into the devolution statutes. The Scottish Government’s and Scottish National party’s position on human rights also reflects the wishes of voters in Scotland, who voted to remain in the EU by a considerable margin and voted in considerably larger numbers for parties that support international human rights norms than for those that do not.

It is about time that this Parliament started to recognise that views across these islands are quite divergent from the sort of Brexit that the Government are proposing. The cross-party amendments would go some way towards the aim of keeping us in the charter and keeping remedies for UK citizens. Of course, that is not to say that there are not many people in England and Wales who voted to leave and also wish to see the charter of fundamental rights preserved. We heard, if I may say so, a typically eloquent speech by the right hon. and learned Member for Beaconsfield, who said that the rights that have come into our law as a result of our membership of the European Union have done good across these islands, particularly for the most vulnerable people in our society. One would hope that we could agree on that on a cross-party basis.

A lot of misinformation is going around about the charter, and that stems from a resistance to the idea that it is either desirable or necessary for international human rights norms to have direct effect in the United Kingdom. We have to recognise that the logical result of that antipathy to giving direct effect to international human rights norms is to take away rights, and the ability to realise them, from British citizens and businesses. That is surely not a desirable state of affairs, no matter which side of the House one sits on.

As we have heard from a number of hon. Members, the Government have tried to reassure us that importing EU law without also importing the charter will make no difference to the protection of rights in the various jurisdictions of the United Kingdom. Indeed, they state in paragraphs 99 and 100 of the explanatory notes to the Bill that it is unnecessary to include the charter as part of retained law because it merely codifies rights and principles already inherent in EU law. That is what the Minister told us from the Dispatch Box. As others have said, that rather begs a question: if it is just a simple codification, why bother not incorporating the charter?

As I pointed out in an intervention on the Minister, the Exiting the European Union Committee heard evidence from a senior legal academic who said that there will be legislation in retained EU law that refers to the charter, so there will be a lack of legal certainty if the charter is not there. The Minister would no doubt say, “Yes, but the general principles will still be there.” But the charter existed as a codification of the general principles in order to make them more readily accessible.

I am interested to see the list that the Minister is going to produce on 5 December, but he could make his life a lot easier—I know that he and his colleagues have a lot on their plate at the moment—if he just incorporated the charter, rather than running around with bits of paper listing the general principles when they are all listed in the charter anyway. Surely that would be the logical and practical thing to do; unless there is, to use someone else’s phrase, some devilish plot, whereby removing the charter of fundamental rights means that rights will be removed. There is some evidential basis for believing that at least some Government Members think it is a good thing not to incorporate the charter of fundamental rights because it includes rights that they do not like. I am sorry to single out one Government Member, but I did read the article in The Sun yesterday by the hon. Member for Fareham (Suella Fernandes). I am not normally a reader of The Sun, but it caught my eye on Google that it contained an article about the charter of fundamental rights and I thought that every newspaper should be given a chance from time to time, so I had a little look. Like me, the hon. Lady is a lawyer, and she writes:

“This week Parliament will be asked to vote on whether to incorporate the EU’s Charter of Fundamental Rights into UK law. If Labour, acting with others, manage to force this through there will be legal chaos. Not only will it hand new and long lasting powers to UK courts”,

but it has also

“crept into many areas of UK law, from asylum to even national security.”

So there we have it in the words of at least one Conservative Member. There are things in the charter of fundamental rights that some on the Government Benches do not wish to be incorporated into our law.

European Union (Withdrawal) Bill

Debate between Joanna Cherry and Dominic Raab

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Dominic Raab]

I am grateful to my right hon. and learned Friend. I absolutely agree that the scope and parameters of the different options will need to be settled, but I think he has implicitly accepted and recognised that that is the subject of diplomacy. As has been said, we cannot put the legislative cart before the diplomatic horse, and I fear that that is what the amendment would do.

I now turn to amendment 202, which was tabled by the right hon. Member for Ross, Skye and Lochaber (Ian Blackford) and also relates to amendment 384. In leaving the EU, we will bring about an end to the direct jurisdiction of the European Court of Justice, and this Bill is essential to ensuring the sovereignty of our Parliament as we take back democratic control. We understand, of course, the desire to ensure a smooth and orderly exit and continuity for those who have commenced matters before the courts before exit. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) also made this point.

That is why we set out in our July position paper, “Ongoing Union judicial and administrative proceedings”, that we believe that UK cases before the ECJ on exit day should not be interrupted but should be able to continue to a binding judgment. We recognise that parties involved in such cases before the ECJ will have already gone through various stages of the process, potentially including making oral and/or written submissions. We do not think that they should have to repeat those stages before the UK courts, as this would not provide certainty but undermine it. The amendment would add further uncertainty rather than mitigate it. Pending matters before the UK courts will be able to reach a final judgment post exit without needing referral to the European Court. The Bill will convert directly applicable EU law into domestic law, so our domestic courts will then apply to those matters. In this way, we will have certainty about how the jurisdiction of the ECJ in the UK will be brought to an end.

Permitting the European Court to continue ruling on cases that were not before it procedurally on the day of withdrawal, as the amendment proposes, would give rise to considerable uncertainty. It would extend the period under which the European Court would continue to issue judgments in respect of the UK, and it is absolutely impossible to predict how long that may last. Furthermore, after exit day the UK will no longer be a member state of the EU. Under the EU treaties, the European Court itself can rule only on questions referred to it by member state courts, so it follows that without a new and separate international agreement, the references envisaged by the amendment would not, in any event, be possible.

[Joanna Cherry]

I am sure that the hon. Gentleman is aware of the arrangements that were made in relation to the Privy Council when New Zealand chose to have its own supreme court. In fact, cases from New Zealand are still going to the Privy Council. All we are contemplating with these amendments, which I will address in more detail in a moment, is a similar arrangement.

[Dominic Raab]

I take the point that the hon. and learned Lady makes, but that is not the same mechanism. It is not analogous and it is not desirable.

--- Later in debate ---

[Dominic Raab]

My right hon. Friend raises an excellent, if rather esoteric, point, but it is also fundamentally about clause 5 and schedule 1. If he can be patient, we will turn to that next week and, I hope, address all his concerns.

To sum up, I hope that I have at least sought to address all the underlying concerns in each of the amendments and, given the need to maximise legal certainty, minimise confusion and ensure a smooth transition, that all hon. Members will make sure that clause 6 stands part of the Bill unamended.

[Joanna Cherry]

I rise to speak to amendment 137, which stands in my name and, I am happy to say, the names of many other hon. Members on these Benches, and to amendments 202 and 203, which stand in the name of my right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford) and other Members on the SNP Benches. I was particularly delighted to hear the Labour party spokesman say that Labour was supporting my amendment 137, which also has the support of the Trades Union Congress, Justice, the Equality and Human Rights Commission and the Fawcett Society.

I will endeavour to explain in detail why amendment 137 is necessary. In essence, we have tabled it because it is necessary to create legal certainty for individuals and businesses by giving a clear instruction to the courts about how to treat decisions of the European Court of Justice after exit day. I am afraid that the Bill does not give that degree of clarity. The purpose of the amendment is also to protect the judiciary from having to make decisions open to political criticism. We saw some pretty heinous political criticism of judges on the Supreme Court earlier this year, and we have heard judges on that Court express concern about the possibility of not being given proper direction in the Bill. My amendment seeks to address that issue. Finally, and perhaps most importantly for our constituents, the amendment will encourage UK rights protections to keep pace with EU rights after Brexit.

Amendment 202 is also about giving certainty to individuals and businesses with cases pending before the domestic courts on exit day. I listened carefully to what the right hon. Member for Chesham and Amersham (Mrs Gillan) said about her amendments, with which I have great sympathy. Amendments 202 and 203 have a similar purpose. I also listened with care to what the Minister said, but I regret that he has not given me any comfort that anything in the Bill will give the certainty required for people in the midst of litigation on exit day. That is why we seek to define a “pending matter” in amendment 384 as

“any litigation which has been commenced in any court or tribunal in the United Kingdom and which is not finally determined at exit day”.

We need clarity. It is not just me who says so, or those who support the amendment; these amendments were drafted with some care by the Law Society of Scotland, and I submit that they are necessary to protect litigants’ legitimate expectations, but I will return to that in a moment.

The underlying theme of all these amendments is the need to create the legal certainty that hon. Members on both sides of the House have referred to today. It is, of course, an absolute requirement of the rule of law that there should be legal certainty. I regret to say, however, that clause 6 does not give that degree of legal certainty. In accordance with our mandate the Scottish National party opposes Brexit, but we understand the need for withdrawal legislation, and we want to reach agreement on it if possible. We also want to ensure that the legislation is properly framed. Clause 6 is not properly framed, because it does not give the certainty that is required.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 31st October 2017 Commons Chamber

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

The Government’s EU position papers on enforcement and dispute resolution and on security, law enforcement and justice have significant implications for the Scottish legal system and for areas of law devolved to the Scottish Parliament. Yet, in advance of the publication of those papers, there was absolutely no consultation with the Scottish Government or the Scottish Law Officers. What assurance can the Minister give me that such oversight will not happen again?

[Dominic Raab]

I do not know about the specific drafting in the papers, but there was considerable dialogue with all the devolved Administrations on the substance underpinning the position papers and the negotiating position that the UK has taken.

[Joanna Cherry]

Sir David Edward, a distinguished jurist and a former judge at the Court of Justice, recently gave evidence to the Scottish Parliament about these papers. He said, and I quote, that “the UK Government has overlooked the significance of the separate Scottish legal system, the Scottish judicial system and the Scottish prosecution system in relation to justice and home affairs issues such as Europol, the European Arrest Warrant, cross-border information systems and the conventions and regulations about recognition and enforcement of judgments.” Will the Minister undertake to meet me so that these oversights might be rectified?

[Dominic Raab]

I thank the hon. and learned Lady, but she has not actually pointed to one aspect, one paragraph or one point in the position paper that she thinks we have got wrong. We certainly accept, recognise and, indeed, embrace the huge contribution that the Scottish justice and legal systems make. In relation to the justice and home affairs strand of the negotiations, we will of course bear in mind very closely the different contours across the whole UK.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 5th September 2017 Commons Chamber

[Dominic Raab]

We will certainly look into all aspects of the various Select Committee reports when charting the way forward.

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

May I start by welcoming the Minister to his place?

The Supreme Court ruled that the secondary legislation that brought in the employment tribunal fees interfered with access to justice and employment rights, and that it discriminated unlawfully. Does the Minister accept that the Supreme Court’s judgment illustrates that fundamental rights such as equality and access to justice should not be changed or undermined by secondary legislation that receives little or no parliamentary scrutiny?

[Dominic Raab]

The hon. and learned Lady makes her point in a typically powerful way. The Supreme Court also recognised that fees can have a role to play. Of course, they do help to secure justice and access to justice by making the necessary resources available. Equally, we recognise that we got the balance wrong. That is why we have taken immediate action to end the fees. We will be coming up with proposals on the practical arrangements for reimbursement shortly.

[Joanna Cherry]

In 2015, the Scottish Government said that as soon as the power to do so was devolved—and that is pending—they would abolish employment tribunal fees. Does the Minister agree that the fact that the Scottish Government chose to do that voluntarily—the UK Government were forced to do so by the Supreme Court—shows that the case for the devolution of employment law to Scotland is strong so that the Scottish Government may protect the interests of Scottish workers and access to justice?

[Dominic Raab]

We are fully in favour of the principle of devolution. A whole range of justice matters have been devolved, and we will look very carefully at how we get the balance right.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 14th June 2016 Commons Chamber

[Mr Raab]

My hon. Friend makes his powerful point in an eloquent way. There is a recognition across the House, on whichever side of the wider debate, that some of the laws that have come out of the EU have been damaging to civil liberties, whether involving the European arrest warrant and the injustice inflicted on my constituent Colin Dines, or the right to be forgotten, which has a muzzling effect on free speech. There are certainly areas of concern, on whichever side of the wider debate Members are.

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

Gender equality is recognised as a fundamental human right by the European Union, and a report from the TUC has identified 20 key areas in which European Union law has enhanced the rights of working women, often in the face of opposition from Tory Governments. How does the Minister propose to ensure that these hard-won employment rights are protected in the event of a Brexit?

[Mr Raab]

I thank the hon. and learned Lady for her question. First, the vast majority of equal pay rights and women’s and workplace rights have been introduced by this House—by elected representatives accountable to the British people. I am surprised that she believes that the human rights and wider rights of our citizens and her constituents are better protected at EU level by bureaucrats and unaccountable politicians rather than by hon. Members in this House who are accountable to the British people.

[Joanna Cherry]

As the Minister well knows, we did not get equal pay for work of equal value until the European Court intervened, and we have wide maternity rights only because of European directives. The Prime Minister’s former adviser Steve Hilton, who supports leaving the EU, said in 2011 that maternity leave should be abolished. Does the Minister wish to add his voice to that particular pungent voice? If not, which employment rights would he abolish in the event of a Brexit?

[Mr Raab]

I thank the hon. and learned Lady for that, but I do not think that any of the factual assertions she has made are right. There is absolutely no plan such as that she suggests, and I do not support abolishing paternity rights; in fact, when I was a Back Bencher under the last Government and this point was raised, I was fully in favour of transferable parental leave. She is mistaken in what she says, but what is most striking is that the message she is sending to her constituents and the wider citizens of this country is that they should have no faith in her ability and that of the Scottish National party in this House to protect their rights.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 26th April 2016 Commons Chamber

[Mr Raab]

My hon. Friend is tempting me—coaxing me, I might say—down a route that I am not going to take. I have set out the Government’s position very clearly, and our current plans, at least, do not involve withdrawing from the convention.

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

The Minister says that he and the Government want to stay in the convention, but we know that he wants to leave the European Union. The Home Secretary told us yesterday that she wants to leave the convention, but she wants to remain in the European Union. Should we understand that the Government are as divided on the question of ECHR membership as they are on the question of EU membership?

[Mr Raab]

No.

[Joanna Cherry]

SNP Members have been asking for a long time when the Government will publish their consultation paper on repeal of the Human Rights Act. Does the Minister understand that the Home Secretary’s statement yesterday has caused particular concern in Scotland, because in Scotland the convention is embedded in the devolution settlement, as it is in the other devolved Administrations? Does he appreciate that the convention could never be withdrawn from without the consent of the Scottish Parliament, and that there is no question of that consent ever being given?

[Mr Raab]

I hope that I have reassured the hon. and learned Lady by reiterating the Government’s position.

Human Rights Framework: Scotland

Debate between Joanna Cherry and Dominic Raab

Wednesday 2nd March 2016 Westminster Hall

[The Parliamentary Under-Secretary of State for Justice (Mr Dominic Raab)]

It is an honour and a pleasure to serve under your chairmanship, Mrs Main, for the first time, I think. We have stood shoulder to shoulder on many issues and you have steered us wisely thorough this debate.

I congratulate the hon. Member for Dumfries and Galloway (Richard Arkless) on securing the debate, and other hon. Members on their stimulating contributions. In particular, I thank the right hon. Member for Orkney and Shetland (Mr Carmichael) for sharing his fantasy of a British Bill of Rights with us. The serious point that he made is that the Human Rights Act is not the last word on human Rights: it is not the perfect incarnation of human rights in this country, and therefore it can admit of change. I sensed agreement on that point, so the real bone of contention is what that change might look like, rather than the principled question of whether the Human Rights Act has become untouchable.

The Government are fully committed to the protection of human rights across the UK. This debate is an important opportunity to reflect on what that protection looks like now, what it might look like in the future and how it might be improved. The Prime Minister made it clear that the Government will work in the interests of all four nations of the UK, and it goes without saying that I share that commitment. One of the things that unites us as a country is our shared commitment to liberty and the rule of law. Although that commitment has evolved though different instruments, from Magna Carta and the 1689 Bill of Rights in England and Wales, to the Scottish Claim of Right, the nations of the UK have evolved with a shared commitment to the common values that underpin human rights and, indeed, the Union.

As an Englishman, I am proud to pay tribute to the Scottish landmarks on Britain’s long road to liberty. I mentioned the Claim of Right, to which can be added the Criminal Procedure Act 1701, which established and entrenched the principle of habeas corpus in Scots law. Scotland has produced some of our very finest thinkers on the subject of liberty and the rule of law. I would single out David Hume and his essays on the liberty of the press and civil liberty. He regarded Government not as the enemy of liberty but as a necessary condition for liberty. As hon. and right hon. Members will know, his work came in the context of the period after the Act of Union, so it was part of the intellectual fabric that binds this United Kingdom.

We share not only the values, but the things that emanate from them—the practical products of a commitment to liberty, such as free elections, a ban on cruel and unusual punishment, free and fair trials, and free speech. Those values and their product found voice and strength in Scotland as in the rest of the United Kingdom and are shared across the UK. At the same time, we must reflect on the pluralism within the UK and that the UK is a union of diverse interests, history and legal traditions. Notwithstanding our shared commitment to rights and liberty, there are areas where we diverge. We can look, for example, to the right to trial by jury that exists in England and Wales. Jury trial is practised in Scotland, but it is not there as a strict right, which is perfectly legitimate and respectable. There is room for different applications of fundamental freedoms across the UK. That diversity is not merely to be expected; it is to be welcomed. It would be odd were the SNP, which is effectively committed to secession, not to think that that pluralism was a good idea.

[Joanna Cherry]

Will the Minister give way?

[Mr Raab]

I will just make a little progress and then I will certainly take interventions.

The balance between shared values and the different application of those values finds voice today in Scotland’s human rights framework. The protection of rights and liberty remains at the heart of Scotland’s devolution settlement—a point made well by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and the hon. Member for Dumfries and Galloway. The compatibility of devolved legislation with fundamental human rights is central to the competence of the Scottish Parliament. While competence for the UK’s human rights framework remains with the UK Government and this House, the Scottish Parliament and the Scottish Government are responsible for the application of human rights in devolved areas and are free to act on human rights issues within devolved policy areas. The core substantive rights are common across the UK, but we have an element of pluralism in our approach to the procedural mechanism for protecting human rights. That variable procedural geometry means that the application of human rights admits some measure of variation across the UK.

We had lots of theoretical considerations of the human rights position as it applies in the UK and in Scotland, but let us discuss some tangible illustrations. Unlike in England and Wales, for example, the Scottish Government do not provide for mandatory fatal accident inquiries for unnatural deaths of persons detained under mental health laws, despite some criticism from the Scottish Human Rights Commission. Another example is the hourly rousing of detainees in police cells, which takes place in Scotland but applies only to vulnerable detainees in England. Her Majesty’s inspectorate of constabulary in Scotland recommended reform in that area. A third example—again, this list is illustrative, not exhaustive—is the notification period for demonstrations in Scotland, which is 28 days compared with six days in England. That has been the subject of criticism by the UN’s special rapporteur on the rights to freedom of peaceful assembly and of association. It is also highlighted in “Is Scotland Fairer?” the Equality and Human Rights Commission’s latest report, along with other areas that the commission concluded required improvement, such as violence and harassment against children and young persons and hate crimes perpetrated on grounds of disability or sexual orientation.

I should make it clear that the Government support the principle that Scotland should have the freedom to take action on rights in devolved areas, in line with its own priorities for implementation, and to decide how it balances fundamental human rights with the need to implement practical and sensible policies for the people of Scotland.

--- Later in debate ---

[Joanna Cherry]

I mentioned in earlier that the Council of Europe’s commissioner for human rights recently visited the UK. Is the Minister aware that the commissioner complimented the Scottish Government on the fact that they are looking to go beyond the European convention on human rights by implementing other international human rights treaties directly into Scots law? Is the Minister aware that the commissioner also said:

“The Scottish National Action Plan for Human Rights is also a good example for”

the rest of the United Kingdom?

[Mr Raab]

I read the remarks of the commissioner. Indeed, I met him in person and he seemed satisfied with the assurances I gave him that our reforms, proposals and what we have in mind will not see us turn into the basket case of Europe or become like Belarus, which is nonsense that is bandied around frankly rather irresponsibly. I did meet the commissioner and did read his comments about Scotland, and it is right to pay tribute to the improvements and to what the rest of the Union can learn from Scotland. Action plans and the theoretical stuff is fine, but it is what we do in practice that really counts for the citizens of Scotland and indeed the rest of the UK.

In addition, the more powers that the Scottish Government assume for the implementation of human rights for the people of Scotland, the more they can be expected to be questioned and evaluated on the degree to which they live up to the responsibilities that they acquire. We hear an awful lot from the SNP in this House about how the UK Government and Parliament are threatening human rights in Scotland, but I hope that that is not being used as a distraction from considering the degree to which the Scottish Government meet their commitments in reality in Scotland. It is not about brandishing action plans, to which the hon. Member for Dumfries and Galloway referred, and making pious policy statements about human rights in theory instead of focusing on delivering in practice. Perhaps the hon. and learned Lady would like to respond to that point.

[Joanna Cherry]

I would not, because the Minister is here to answer questions put to him by us in this debate. I am conscious of the clock and that there is about three and a half minutes left. He has been asked a number of questions by my hon. Friend the Member for Dumfries and Galloway (Richard Arkless) that he has not yet answered. He has also been asked some important questions by the spokesperson for the official Opposition about the purdah period. Will the Minister answer those questions?

[Mr Raab]

I thank the hon. and learned Lady. We have given answers to all those questions before.

--- Later in debate ---

[Joanna Cherry]

Will the Minister give way?

[Mr Raab]

I will not because I have so little time left.

Under the Human Rights Act, however, once Scotland has devolved responsibility for the franchise, the only way that the Scottish Government will be able to retain the ban on prisoner voting is by relying on the nationwide ban enacted by the UK Parliament here at Westminster. It is one of those things that SNP Members should remember, ’fess up to and be a bit more honest and straightforward about when they hurl around the suggestion that we are attacking human rights.

There is actually widespread support in Scotland for replacing the Human Rights Act with a Bill of Rights, which has been borne out by all the YouGov polling.

[Joanna Cherry]

Nonsense!

[Mr Raab]

The hon. and learned Lady does not like the facts.

The truth is that the UK’s history of respect for human rights predates the Human Rights Act in all parts of the United Kingdom. That protection will continue to be totally central to our human rights framework in the years ahead. I look forward to many more opportunities to discuss the substance and detail of the framework with hon. Members in due course.

Question put,

That this House has considered the future framework for human rights in Scotland.

The Chair’s opinion as to the decision of the Question was challenged.

Question not decided (Standing Order No. 10(13)).

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 26th January 2016 Commons Chamber

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

When Nils Muižnieks, the Council of Europe Commissioner for Human Rights, visited the United Kingdom last week, he said that the repeatedly delayed launch of the consultation on the repeal of the Human Rights Act is

“creating an atmosphere of anxiety and concern in civil society and within the devolved administrations”.

Will the Minister tell us exactly when the consultation will be published?

[Mr Raab]

As the hon. and learned Lady knows, I met Nils Muižnieks last week to talk through these issues, and there is absolutely no cause for anxiety. We will introduce proposals for full consultation in the near future—those proposals are going well—and she will hear more shortly.

[Joanna Cherry]

The commissioner also said:

“My impression is that the debate over the HRA in Westminster is not a true reflection of concerns outside England”.

Does the Minister appreciate that the impact on the devolved Administrations of an attempt to repeal the Human Rights Act would likely provoke a constitutional crisis?

[Mr Raab]

The hon. and learned Lady is absolutely right that the debate within the Westminster bubble, particularly the shrill scaremongering, is not reflective of wider public opinion outside the House, which is clearly and consistently in favour of a Bill of Rights to replace the Human Rights Act, including, she will note, in Scotland.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 8th December 2015 Commons Chamber

[Mr Raab]

My hon. Friend makes a powerful point. We respect the fact that the convention includes a common-sense list of rights, and we want to ensure that we have the proper interpretation of those rights. We also want to ensure that we have a Supreme Court that remains supreme. It should be said that where the goalposts of human rights shift, it should be elected Members here that have the last word.

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

It was reported last week that the long-awaited consultation on the Government’s plans to scrap the Human Rights Act would not be published until the new year. Will the Secretary of State confirm when he intends to bring forward a British Bill of Rights, and will he commit to ensuring a full consultation on these proposals and that adequate time will be given to consider and answer any responses to the consultation?

[Mr Raab]

We have made it clear that the proposals will be brought forward in the new year for full consultation. One area that we want to look at a bit further is the impact of the jurisprudence of the Court of Justice in Luxembourg as well as the Court of Justice in Strasbourg. I can reassure the hon. and learned Lady that we will take the Scottish view very seriously. I have already met the Scottish Justice Minister, Alex Neil, and a range of Scottish practitioners and non-governmental organisations. I look forward to continuing that consultation.

[Joanna Cherry]

In June the Secretary of State assured this House that, in his view, human rights were a reserved matter. Last week, however, he told the House of Lords Constitutional Affairs Committee that legislation regarding human rights is neither reserved nor devolved. Does he therefore now accept that any legislation repudiating the Human Rights Act and introducing a British Bill of Rights will require the consent of the Scottish Parliament? Is he aware that there is no question of such consent being given?

[Mr Raab]

As we have said many times before, revising the Human Rights Act can only be done by the UK Government, but implementation of many human rights issues is already devolved. I have to say that the SNP’s policy on this issue is rather “cake and eat it”. SNP Members suggest that Westminster is attacking Scottish human rights, but the SNP continues to agree that it does not want to give prisoners the vote. After the Scotland Bill becomes law, the Scottish Parliament will be able to decide who votes in Scottish elections, so the only way that the SNP will be able to maintain the bar on prisoner voting in Scottish elections is by relying on Westminster legislation. Can the hon. and learned Lady confirm that that is her intention?

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 3rd November 2015 Commons Chamber

[Mr Raab]

My hon. Friend expresses himself in his usual tenacious and powerful way. It is true that the Conservatives have a long tradition of upholding freedom under the rule of law. We want to protect and strengthen that tradition, but we also want to avoid human rights being abused. We want this place to have the last word on where the bar is set for human rights, and we want the Supreme Court to be the ultimate body deciding on and interpreting them.

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

I thank the Minister for confirming that there are no plans to withdraw from the ECHR at this stage, but I note that he earlier confirmed that there will be a consultation on repealing the Human Rights Act and replacing it with the Bill of Rights. As he knows, the Human Rights Act applies across the whole of the United Kingdom, including Scotland. How does he propose to engage the people who live in Scotland, their Government at Holyrood and their elected representatives in this Chamber in his consultation on repealing the Human Rights Act?

[Mr Raab]

Fully, expansively and at great length.

[Joanna Cherry]

Last week, despite objections from SNP Members in a debate on the Floor of the House, Conservative MPs joined forces with Labour MPs to ensure that no MPs representing a Scottish constituency would be on the Joint Committee on Human Rights, which scrutinises the compatibility of UK-wide Bills with human rights. In the light of that decision, how does the Minister expect us to have confidence that Scottish Members of Parliament will be fully involved in scrutiny of the implications of the Government’s consultations on repealing the Human Rights Act?

[Mr Raab]

I give the hon. and learned Lady my personal undertaking to talk to her and any other colleagues, as she wishes, when the time comes for publication.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 8th September 2015 Commons Chamber

[Mr Raab]

I understand the hon. Gentleman’s concern. I will not be drawn on the substance and detail of our proposals—[Hon. Members: “Why?”] We will have a consultation and there will be ample time. We want to retain fundamental rights reflected in the convention, but we need to ensure their sensible application and proper respect for the Supreme Court of this country as well as for the democratic role of hon. Members in this place and their legislative function. Our Bill of Rights and proposals will be considering those areas.

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

At Justice questions on 23 June, the Secretary of State said that human rights are a reserved matter under the devolution settlement. At a debate in Westminster Hall on 30 June, I urged the UK Government to reconsider that position, having regard to the precise terms of the Scotland Act 1998. Will the Minister confirm that his advisers have had the opportunity to study schedule 5 to the Act over the recess? Will he now accept that human rights are not listed there as a reserved matter and that if this Government therefore want to repeal the Human Rights Act and replace it with a British Bill of Rights they will be required first to consult the Scottish Parliament according to the Sewel convention?

[Mr Raab]

I thank the hon. Lady for her question. There will be full consultation and we are aware of the concerns that she and her party have raised. Revising the Human Rights Act can be done only by the UK Government, but at the same time the implementation of human rights issues are already substantially devolved to Scotland. Let me give one example. The Scottish Government have been criticised for failing to hold mandatory fatal accident inquiries when someone dies in a mental health institution. That is just one illustration, but the SNP needs to stop promoting the fiction that human rights in Scotland totally depend on or are threatened by Westminster and to focus more on living up to its own responsibilities.

--- Later in debate ---

[Mr Raab]

We are very clear about the absolute prohibition on torture, including in relation to the asylum regime. If the hon. Gentleman wants an overall steer, the major problems have been less with the text of the European convention than with its application. Some of those problems arise because of judicial legislation and others because of the operation of the Human Rights Act. Those problems are acknowledged across the political spectrum, including by senior members of the judiciary.

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

Can the Minister confirm whether the proposed Bill of Rights will grant all those living in the UK the same levels of protection, or will there be different levels of rights protection for different categories of person depending on whether they are a UK citizen or an EU or non-EU citizen?

[Mr Raab]

As I have said, I am not going to go into the substance and the detail. We will have plenty of opportunity to discuss that. There is already some variable geometry in the Human Rights Act in relation to the procedural framework, so we will be interested to hear the views of the SNP and other parties on those aspects.

Oral Answers to Questions

Debate between Joanna Cherry and Dominic Raab

Tuesday 23rd June 2015 Commons Chamber

[Mr Raab]

My hon. Friend is absolutely right. We have a strong record on human rights. We will continue to set an example around the world, but in our own domestic laws we do need to make sure that we have a common-sense balance. It is not a left or right issue; it is what the public expect as a matter of common sense.

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

Is the Minister aware that the Church of Scotland has expressed concern about his Government’s plans to repeal the Human Rights Act? Will he now support the Church of Scotland’s call for human rights to be fully devolved to the Scottish Parliament?

[Mr Raab]

We are well aware of the concerns that have been expressed. We will be consulting fully, including with the devolved Administrations, in due course.