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unanimous cross-party reports, which concluded that the Human Rights Act is working well and does not need to be repealed or replaced.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.