John McDonnell
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European Convention on Human Rights
John McDonnell Excerpts(12 years, 5 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Mrs May
I shall make a little progress, if I may, because I have taken a number of interventions.
With the changes that I am making, there will generally be no need for a separate assessment of article 8 beyond the requirements set out in the immigration rules. Compliance with the immigration rules will mean compliance with article 8, other than in truly exceptional circumstances. So, a foreign criminal who does not meet the criteria set out in the rules will be deported and they will not have a second bite at the cherry via article 8. Similarly, a migrant seeking to come to the UK to join a partner must meet the criteria set out in the rules or a visa will be refused and there will be no separate article 8 claim. The immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature.
Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.
Some have suggested that Parliament cannot set out how article 8 should be qualified because we are bound by the European convention on human rights. They evidently do not understand that article 8 is a right that is qualified by the convention itself. Of course, judges will continue to consider each case on its individual merits, but it is the courts themselves that have said that Parliament needs to make its views clear. In a case in 2007, the House of Lords said that a statement from Parliament was needed on where the public interest lies in the operation of article 8 in immigration cases. The Court of Appeal, last year and this year, has indicated that greater weight is to be given to the public interest when that has been endorsed by Parliament. Today’s motion provides the courts with the statement and the endorsement from Parliament that they have said is needed. The courts should then give that statement from the elected legislature the weight that it deserves.
John McDonnell
Will the right hon. Lady clarify whether we are legislating today? Are we passing into law the rules that she published less than a week ago?
Mrs May
The motion recognises the qualification of article 8 and invites the House to agree that it is set out in the immigration rules. The immigration rules themselves have been laid before Parliament—[Interruption.] I am very happy to read the motion again. It states that the House
“agrees that the conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”
John McDonnell (Hayes and Harlington) (Lab)
Unfortunately the Home Secretary is not present, but let me place on record that I have a good deal of time for her. I think that her speech a few years ago about “the nasty party” was incredibly courageous. [Interruption.] I was trying to make a wider point. I think that it helped to change a bit of the culture of politics in this country. However, I am extremely disappointed in the process that is taking place today. I no longer know what we are debating, or what the purpose of the debate is. If its purpose is to establish some form of credentials for the House—to cause the courts to acknowledge statements in the House and thus, to an extent, shape their judgments in the light of the debate—this is not the way to go about it.
Normally we would debate legislation, and the legislative proposals would be published in good time. Often, as one of my hon. Friends pointed out, those proposals would be presented to the relevant Committee of the House, which in this instance would probably be the Joint Committee on Human Rights. We would receive a report, a legislative proposal would be debated in the House in some form, and then, as a result of a vote, legislation would be enacted. That is the way in which we not only legislate, but shape the interpretation of legislation by the courts.
Pete Wishart
Like the hon. Gentleman, I am totally confused about what we are voting for this evening. There have been three explanations of what the vote at 8.30 pm will entail, but the danger is that we may be voting for the immigration rules in their entirety, as laid out last week. That is unacceptable to me, and I am sure that it is unacceptable to the hon. Gentleman.
John McDonnell
Let me finish the point I was making, which is that this is an object lesson in how not to go about influencing others, and certainly not the courts. The immigration rules’ legislative proposals were published only a week ago, and there are 45 pages of amendments to what is an even more detailed document. I ask Members who have read all that material to put up their hand. For the benefit of Hansard, I note that one Member has raised their arm—or perhaps two.
Mr Cash
As an assiduous reader of these documents, may I mention that the Journal Office has advised that the use of an approval motion for such rules is normally subject to negative procedure, although that is not taking place in this instance, and the contention that Parliament’s view is subject to review by the courts is also surprising in the context of article 9 of the Bill of Rights? The Clerks have clearly therefore taken on board some serious points regarding the procedure that is being followed.
John McDonnell
I heard those points when they were made previously, and the House of Commons Library note provided to us describes this as an unusual process—I put it no stronger than that. We are having this debate only a matter of days after having received the detailed and complex documents to which I referred, and I simply do not understand the reason for this haste.
Moreover, the first section of the motion is a statement of the obvious; article 8 is, indeed, a qualified right. It then tries to inveigle us into a commitment to support the immigration rules that we received only a few days ago, and which have not been debated. That is an unacceptable attempt to bounce the House into agreeing to something that many of us have genuine concerns about.
We would welcome a wider debate. I know this might sound unusual, but, frankly, I want to consult my constituents on the matter. I want to understand their concerns about these new rules. My anxiety is that we are now entering a political phase. During some Members’ speeches, certain other Members were suggesting, “Well, vote against the motion.” I want nothing to do with this motion, but they were shouting and bearding people about voting against the motion—[Interruption.] I do not think the hon. Member for Crewe and Nantwich (Mr Timpson) has been in the Chamber since the beginning of the debate, has he?
John McDonnell
I apologise and withdraw that comment, therefore, but there were definitely shouts of, “Well, vote against it.” Such behaviour draws us into the realm of political knockabout, when we should be having a considered debate about the legislative proposals, and what that results in is clear to anybody who has seen the Daily Telegraph campaign currently being waged, in which it is naming judges and publishing their performance in individual trials. It is saying how many people those judges have deported over the last period. This is taking the form of a witch hunt, therefore, and it is an unacceptable attempt to influence the judiciary. I agree with the hon. Member for Keighley (Kris Hopkins) that there needs to be an honest debate about immigration, but to drag things down into a political knockabout on how to vote on a motion that is irrelevant in respect of any legislation is unacceptable and clouds the atmosphere in this House, and thereby undermines its ability to influence any law court or judge.
The procedure the Government have introduced today completely undermines the credibility of the House on this matter. We need to get back to the normal processes of legislation. We need to ensure Members have the necessary information well in advance of any debate, rather than having it in the curtailed time scale that we have experienced on this occasion—and that is particularly important in this instance, as the matter under discussion is very complex, and very sensitive as well. The full procedures of the House should be followed, including referring the matter for consideration by the relevant Committees of the House which will then report back, and giving Members the time to consult their constituents and then to come to a considered view and arrive at a decision on a vote. That vote may well prove to be unanimous, because people will feel they have been fully involved. No court can interpret this current process as expressing the definitive will of the House, however, because many Members will have not a clue what we are voting on as the information has been provided so late.
Mr Cash
I just wonder whether the hon. Gentleman noticed that the Home Secretary referred to the fact that as yet nobody has placed a prayer of annulment to the immigration rules. I understand the rules were introduced into the House only on 13 June. I therefore suspect that, in the event of such a prayer being put, he has the option—and the right—to call for a vote on the substance of the rules.
John McDonnell
That is exactly the point I was about to make. It is important that Members take their responsibilities seriously and that the motion is prayed against. That will enable us to go through the due process of this House, so we can arrive at a decision that Members will feel party to, and that then will have some substance and significance in influencing future judgments in the courts—taking into account, of course, the separation of powers.
Today’s debate is almost a waste of time. It will be looked on as an embarrassment to the House. If we want to improve the standing of MPs and the Houses of Parliament within our community, this is not the route we should be pursuing. I therefore want nothing to do with this motion. I want my position recorded very clearly. I oppose the motion and I wish to get back to a process of legislating whereby every Member feels fully involved—and involved in a process that is serious and significant, not trite as in this instance.
John McDonnell
If the hon. and learned Gentleman’s argument is that what we are doing today is virtually meaningless, I agree, but where does that fit with Pepper v. Hart, which we have always used as the guide to what influences a court’s decisions, and which defines very narrowly how a reference to Parliament—in other words, to a ministerial statement that gives guidance on existing legislation—can be made?
Mr Cox
May I say first that it is not my argument—and the hon. Gentleman knows it. It is a forensic point, which does not do his subtlety and sophistication justice, to suggest that I am saying that this is meaningless. On the contrary, I am saying that it has meaning but we must not overestimate the meaning that it has.
Mr Cox
No! It makes a useful and practical contribution and is a useful measure that, to the extent that the courts are able to perceive what has gone on here, will no doubt provide a useful added measure of weight to the Home Secretary’s discretion. As for Pepper v. Hart, that is concerned of course with primary legislation and the detailed interpretation of individual clauses.
All that is being done here is that the courts are being invited to take note that the motion before us is not simply the executive fiat of the Home Secretary, and that the Home Secretary has put it before Parliament—much the same would have applied if it had been challenged under the 40-day procedure—and a debate about it has been held. Indeed, the courts in the past have examined motions and resolutions of this House and pointed out that they were merely resolutions, but they have not ignored them, and that is exactly what I expect will happen in this situation.
So the motion is perfectly reasonable. It is a laudable attempt to give this House the opportunity to have its say, and if I may say so there was a degree of pedantry from Opposition Front Benchers, who stood on their moral high horse and said, “This should have been primary legislation.” Of course it should not; the immigration rules already have a statutory procedure for amendment, through the Home Secretary’s laying them before Parliament. That is how they are amended, so we ought to avoid the forensic froth of suggesting that this is not a useful and practical—albeit, I accept, limited—measure.
There is no doubt that the Executive have the right, supported by Parliament in whatever measure they ask Parliament to support them, to put to the courts a degree of guidance on the exercise of the courts’ undoubted discretion to decide what is proportionate. This is not an attempt to fetter the courts; it cannot be. As my hon. Friend the Member for Stone (Mr Cash) has so often said, the courts are “unfetterable”. They will not be fettered by this House, and rightly so. The courts must exercise an independent, individual judgment.
There are other circumstances, however, in which the Executive seek to give guidance to the courts on what they consider proportionate in the circumstances. Let me give the House another example. The Home Secretary has a discretion to make an exclusion order against somebody outside this country whom it is not conducive to the public good to admit.
In—I think—2007 or 2008, what is called an acceptable behaviours policy was promulgated, setting out the general approach that a Home Secretary will take to what is a proportionate decision when people have made expressions that make them undesirable entrants to this country. That was done because, of course, article 10 on freedom of expression can be invoked, and the acceptable behaviours policy provides a broad framework for the discretion that the Home Secretary is to exercise in deciding whether to admit such a person who is guilty of such statements.
The sentencing guidelines are not dissimilar. They are guidance to a court on how a discretion might be used, but they are not binding: they cannot fetter the independent and individual judgment of the court. So, in my view, what is being proposed here is not without precedent in other areas. It is a limited, practical measure, and it is one that the House should strongly support, because there is a widespread belief among the public—sometimes wrongly held, as the hon. Member for Perth and North Perthshire has said, and sometimes a caricature—that the Human Rights Act is a shield for all kinds of disgraceful behaviour. The motion before us will do something to restore public confidence in the decisions that the courts make, and will demonstrate that the Government and this House are conscious that a change needs to be made. What will that do? It will assist the courts in striking the right balance and in achieving a degree of consistency, and, in my respectful submission, that is a wholly laudable aim to which this House ought to give its support.