Safety of Rwanda (Asylum and Immigration) Bill

Debate between Joanna Cherry and Jeremy Wright

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[Sir Jeremy Wright]

I am grateful to my hon. Friend for his intervention. I know, Dame Rosie, you would not want me to abuse the privilege you have given us to range slightly more widely in this debate to range quite that widely, so I will not. He is right that I am making a fairly precise point about what this language appears to me to say. I stress that I do not think it is necessary to include this language in order to achieve the objective that the Government have set in this legislation—with which I have some sympathy, although their methods make me nervous, and I make no bones about that. Worse than unnecessary, it presents some dangers that I do not think we need to present in order to achieve the Government’s objectives.

I suspect my hon. and learned Friend the Minister will tell me in a few moments’ or hours’ time that I do not need to worry about any of this. He may give two reasons for that. First, he may say that the Bill does not mean what I think it means. You will forgive me for saying this, Dame Rosie, but I am increasingly troubled that in this place we answer points such as mine by saying, “Yes, well, it doesn’t really mean that, and we don’t really mean that by it.” We should be concerned as legislators with what the language we are passing into law actually says, not what we meant to say. I am concerned that what this language says is not in accordance with what I am sure the Minister wants to do or what the Government want to do, but it might none the less have that effect, or be taken by others to mean the things that I am concerned about.

When the Bill says what a safe country is, it is potentially confusing two different things. One is deeming our own compliance with international law, which I do not think any country should be able to do, and the other is saying that Parliament resolves to do something even if it contravenes the UK’s international law obligations, which, going back to the previous intervention by the hon. Member for Walthamstow (Stella Creasy), I do think the British Parliament can do. We as a legislature can resolve to do that if we so choose.

We have to decide whether that is a wise and sensible thing to do, with all the ramifications it might bring, but as a matter of law it seems to me that the UK Parliament can, if it wishes, pass a law to say, “Despite or irrespective of our international responsibilities, this is none the less what we want to do.” That is not the same as deeming our own compliance with international law, which I worry this language almost certainly seems to do.

The point I make about the UK Parliament being able to do things even when they contravene its international responsibilities is already in the Bill and reflected in the language of clause 1(4)(b), which points out that

“the validity of an Act is unaffected by international law.”

Quite right. We can, if we so choose, deem a country a safe country for the purposes of domestic decision making if we want to. What I do not think we can or should do is legislate to say that we comply with our international law responsibilities when we do not—and when, crucially, to achieve the objective of this Bill we do not need to.

The second reason the Minister may give for why I do not need to worry myself about all this is that he may say that domestic and international law exist on different planes, and that this legislation is only targeted in any event at domestic authorities, so the Bill could not, even if it chose to try, deem our compliance with international law in actual fact. I would agree with that. It is perfectly true that domestic law and international law operate on different planes, and it is not likely that this Bill could determine any question of international law before any international tribunal.

If that is so, though, why include the language? If it does not have any meaning or legal effect, it does not serve any purpose, but I fear it may send a damaging political signal to other states. The language I am concerned about, which amendments 54 and 55 would remove, is either offensive or otiose, and in either respect the Bill would be better without it.

[Joanna Cherry]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright). I find myself in agreement with much of what he said, and he made his points very forcefully.

I rise to speak to amendments 32, 33 and 34 and new clause 4 in my name and amendments 4 and 5 in the name of my hon. Friend the Member for Glasgow North (Patrick Grady), and to support the amendments in the name of my hon. Friend the Member for Glasgow Central (Alison Thewliss). I also want to comment on clause 3 and clause 5 stand part and the amendments that have been put forward, particularly by the right hon. Member for Newark (Robert Jenrick), in my capacity as Chair of the Joint Committee on Human Rights.

I turn first to my amendments, which relate to the impact of this Bill in Scotland, and in which respect I am speaking in a personal capacity. My amendments and those of my hon. Friend the Member for Glasgow North deal with the extent of the Bill, its extension to Scotland and the date of its commencement in Scotland. We both seek to prevent this Bill’s extending to Scotland and, in the event that we are not successful in doing that, my amendments seek to ensure that the Bill will not extend to Scotland without the legislative consent of the Scottish Parliament and that nothing in it will interfere with the supervisory jurisdiction of the Court of Session or its nobile officium. I will explain what that means later.

We must not forget that the regime this Bill seeks to impose, together with the Illegal Migration Act 2023, is imposed on asylum seekers across the United Kingdom, not just those who arrive in small boats on the Kent coast. The UK Government have not forgotten that, and that is why they want this Bill, with its far-reaching and unprecedented ouster clauses, to extend to Scotland. Accordingly, asylum seekers in Scotland looking to our courts for protection will find that the courts in Scotland have been emasculated in the same way as this Bill emasculates the courts of England and Wales.

As well as having their jurisdiction ousted on certain matters of fact, as was debated yesterday, the Scottish courts will find themselves unable to apply the Human Rights Act or to respect the United Kingdom’s obligations under the European convention on human rights and other international treaties. I believe that that constitutes a serious and unprecedented intrusion on the jurisdiction of the Scottish courts, and a serious interference with the separation of powers between legislature, Executive and judiciary. I do not think that this Parliament should be rubber-stamping the Bill at all, but particularly not in relation to Scotland.

Online Safety Bill

Debate between Joanna Cherry and Jeremy Wright

Report stage
Tuesday 12th July 2022 Commons Chamber

[Sir Jeremy Wright]

Yes, that is a possible way forward. Ofcom will need to produce a code of practice in this area. I am sure my hon. Friend on the Front Bench will say that that is a suitable way to deal with the problem that I have identified. It may well be, but at this stage, it is right for the House to recognise that the drafting of the Bill at the moment seeks to offer support to platforms, for which I am sure they will be grateful, but it will need to offer some more in order to allow these judgments to be made.

I restate the point that I have made in previous debates on this subject: there is little point in this House passing legislation aimed to make the internet a safer place if the legislation does not work as it is intended to. If our regime does not work, we will keep not a single person any safer. It is important, therefore, that we think about this Bill not in its overarching statements and principles but, particularly at this stage of consideration, in terms of how it will actually work.

You will not find a bigger supporter of the Bill in this House than me, Madam Deputy Speaker, but I want to see it work well and be effective. That means that some of the problems that I am highlighting must be addressed. Because humility is a good way to approach debates on something as ground-breaking and complex as this, I do not pretend that I have all the right answers. These amendments have been tabled because the Bill as it stands does not quite yet do the job that we want it to do. It is a good Bill—it needs to pass—but it can be better, and I very much hope that this process will improve it.

[Joanna Cherry]

I rise to speak to new clause 24 and amendments 193 and 191 tabled in my name. I also want to specifically give my support to new clause 6 and amendments 33 and 34 in the name of the right hon. Member for Kingston upon Hull North (Dame Diana Johnson).

The purpose of my amendments, as I have indicated in a number of interventions, is to ensure that, when moderating content, category 1 service providers such as Twitter abide by the anti-discrimination law of our domestic legal systems—that is to say the duties set out in the Equality Act 2010 not to discriminate against, harass or victimise their users on the grounds of a protected characteristic.

I quickly want to say a preliminary word about the Bill. Like all responsible MPs, I recognise the growing concern about online harms, and the need to protect service users, especially children, from harmful and illegal content online. That said, the House of Lords’ Communication and Digital Committee was correct to note that the internet is not currently the unregulated Wild West that some people say it is, and that civil and criminal law already applies to activities online as well as offline.

The duty of care, which the Bill seeks to impose on online services, will be a significant departure from existing legislation regulating online content. It will allow for a more preventative approach to regulating illegal online content and will form part of a unified regulatory framework applying to a wide range of online services. I welcome the benefits that this would represent, especially with respect to preventing the proliferation of child sexual and emotional abuse online.

Before I became an MP, I worked for a number of years as a specialist sex crimes prosecutor, so I am all too aware of how children are targeted online. Sadly, there are far too many people in our society, often hiding in plain sight, who seek to exploit children. I must emphasise that child safeguarding should be a No. 1 priority for any Government. In so far as this Bill does that, I applaud it. However, I do have some concerns that there is a significant risk that the Bill will lead to censorship of legal speech by online platforms. For the reasons that were set out by the right hon. Member for Haltemprice and Howden (Mr Davis), I am also a bit worried that it will give the Government unacceptable controls over what we can and cannot say online, so I am keen to support any amendments that would ameliorate those aspects of the Bill. I say this to those Members around the Chamber who might be looking puzzled: make no mistake, when the Bill gives greater power to online service providers to regulate content, there is a very real risk that they will be lobbied by certain groups to regulate what is actually legal free speech by other groups. That is partly what my amendment is designed to avoid.

[Sir Jeremy Wright]

What the hon. and learned Lady says is sensible, but does she accept—this is a point the Minister made earlier—that, at the moment, the platforms have almost unfettered control over what they take down and what they leave up? What this Bill does is present a framework for the balancing exercise that they ought to apply in making those decisions.

[Joanna Cherry]

That is why I am giving the Bill a cautious welcome, but I still stand by my very legitimate concerns about the chilling effect of aspects of this Bill. I will give some examples in a moment about the problems that have arisen when organisations such as Twitter are left to their own devices on their moderation of content policy.

As all hon. Members will be aware, under the Equality Act there are a number of protected characteristics. These include: age; gender reassignment; being married or in a civil partnership; being pregnant or on maternity leave; disability; race, including colour, nationality, ethnic or national origin; religion or belief; sex and sexual orientation. It is against the law to discriminate, victimise or harass anyone because of any of those protected characteristics, but Twitter does discriminate against some of the protected characteristics. It often discriminates against women in the way that I described in an intervention earlier. It takes down expressions of feminist belief, but refuses to take down expressions of the utmost violent intent against women. It also discriminates against women who hold gender-critical beliefs. I remind hon. Members that, in terms of the Employment Appeal Tribunal’s decision in the case of Maya Forstater, the belief that sex matters is worthy of respect in a democratic society and, under the Equality Act, people cannot lawfully discriminate against women, or indeed men, who hold those views.

Twitter also sometimes discriminates against lesbians, gay men and bisexual people who assert that their sexual orientation is on the basis of sex, not gender, despite the fact that same-sex orientation, such as I hold, is a protected characteristic under the Equality Act.

At present, Twitter claims not to be covered by the Equality Act. I have seen correspondence from its lawyers that sets out the purported basis for that claim, partly under reference to schedule 25 to the Equality Act, and partly because it says:

“Twitter UK is included in an Irish Company and is incorporated in the Republic of Ireland. It does pursue economic activity through a fixed establishment in the UK but that relates to income through sales and marketing with the main activity being routed through Ireland.”

I very much doubt whether that would stand up in court, since Twitter is clearly providing a service in the United Kingdom, but it would be good if we took the opportunity of this Bill to clarify that the Equality Act applies to Twitter, so that when it applies moderation of content under the Bill, it will not discriminate against any of the protected characteristics.

The Joint Committee on Human Rights, of which I am currently the acting Chair, looked at this three years ago. We had a Twitter executive before our Committee and I questioned her at length about some of the content that Twitter was content to support in relation to violent threats against women and girls and, on the other hand, some of the content that Twitter took down because it did not like the expression of certain beliefs by feminists or lesbians.

We discovered on the Joint Committee on Human Rights that Twitter’s hateful conduct policy does not include sex as a protected characteristic. It does not reflect the domestic law of the United Kingdom in relation to anti-discrimination law. Back in October 2019, in the Committee’s report on democracy, freedom of expression and freedom of association, we recommended that Twitter should include sex as a protected characteristic in its hateful conduct policy, but Twitter has not done that. It seems Twitter thinks it is above the domestic law of the United Kingdom when it comes to anti-discrimination.

At that Committee, the Twitter executive assured me that certain violent memes that often appear on Twitter directed against women such as me and against many feminists in the United Kingdom, threatening us with death by shooting, should be removed. However, just in the past 48 hours I have seen an example of Twitter’s refusing to remove that meme. Colleagues should be assured that there is a problem here, and I would like us to direct our minds to it, as the Bill gives us an opportunity to do.

Whether or not Twitter is correctly praying in aid the loophole it says there is in the Equality Act—I think that is questionable—the Bill gives us the perfect opportunity to clarify matters. Clause 3 of clearly brings Twitter and other online service providers within the regulatory scheme of the Bill as a service with

“a significant number of United Kingdom users”.

The Bill squarely recognises that Twitter provides a service in the United Kingdom to UK users, so it is only a very small step to amend the Bill to make it absolutely clear that when it does so it should be subject to the Equality Act. That is what my new clause 24 seeks to do.

I have also tabled new clauses 193 and 191 to ensure that Twitter and other online platforms obey non-discrimination law regarding Ofcom’s production of codes of practice and guidance. The purpose of those amendments is to ensure that Ofcom consults with persons who have expertise in the Equality Act before producing those codes of conduct.

I will not push the new clauses to a vote. I had a very productive meeting with the Minister’s predecessor, the hon. Member for Croydon South (Chris Philp), who expressed a great deal of sympathy when I explained the position to him. I have been encouraged by the cross-party support for the new clauses, both in discussions before today with Members from all parties and in some of the comments made by various hon. Members today.

I am really hoping that the Government will take my new clauses away and give them very serious consideration, that they will look at the Joint Committee’s report from October 2019 and that either they will adopt these amendments or perhaps somebody else will take them forward in the other place.