Immigration Bill

Debate between Julian Brazier and Frank Dobson

Thursday 30th January 2014 Commons Chamber

[Mr Brazier]

That was indeed our tradition. It has of course been suspended many times, including for six years during the second world war when German citizens were locked up. There was a divided ruling in the House of Lords, as my hon. Friend will be well aware, on one such German citizen who brought a habeas corpus case.

My point is this: only by putting a measure through can we see whether or not it is possible to sort out this kind of scandalous situation while still allowing Strasbourg to be the supreme court. Can we test it? That is the only way. Personally I think we should do what Lord Judge recommends; we should pass an Act making it clear that the European Court of Human rights should not be our supreme court and that it is only there for persuasive purposes and that, ultimately, the Supreme Court in Britain is our supreme court and that Parliament is sovereign.

I want to touch for a couple of minutes on a subject that has not been discussed at all and is extremely relevant to my hon. Friend’s amendment, which is judicial activism. The legislation that followed the Human Rights Act gave huge powers of discretion to judges; in fact one of the most interesting comments coming out of the Court of Appeal ruling on 8 October 2013 was its comment in passing that the reference to exceptional circumstances in the rules—to which I objected when it went through—was consistent with the proportionality balancing exercise required by Strasbourg jurisprudence. In other words, basically it did not affect judicial discretion at all.

The fact is that individual judges—who have accepted so little guidance from Parliament or resolutions of the House of Commons in this matter—have, basically off their own backs, acted in extreme cases involving people guilty of the most revolting crimes and allowed an article 8 ruling to overrule that. That has happened even when the family connection here was pretty tenuous; in one case, the family connection was desperate to disassociate itself from the individual. That is a measure of the extent to which we are suffering from judicial activism among at least one portion of the judiciary. I want to see the constitutional side of this fixed and I want my hon. Friend’s amendment to be passed. I shall vote for it. I also believe that we will need to pass a measure to make it clear that the supreme court in this country is the British Supreme Court. But I suspect that we will still have a residual problem with the issue of judicial activism.

Let me end my speech by reminding the House of perhaps the most famous case of judicial activism within a common-law jurisdiction in modern history, the Dred Scott case of 1865. I remind those who talk about the rule of law that had President Lincoln not stood up to the Supreme Court in America—had he not said “I was elected as President on this mandate: to prevent the spread of slavery into new states”, and brushed away the court’s finding—there would have been no civil war between 1861 and 1865, and there would have been no end to slavery in America at that stage. I think that most people believe that what happened was right.

[Frank Dobson]

I shall try to be very brief.

The Home Secretary’s proposal to extend her powers in respect of the removal of British citizenship from a limited and specific group of people must be assessed against the judgment that it is in the national interest or for the public good. I have to say that I have never heard anyone give a single example of Britain’s having benefited from some individual’s loss of British citizenship, and I think that it behoves the Home Office, and possibly the Foreign Office, to find out whether there actually have been any such benefits, because there are certainly disbenefits. Harm is done, or can be done, when someone loses British citizenship, and I do not mean that harm is done to the person who loses his citizenship. I mean that harm is done to other people—to the rest of us.

In my constituency, a young Somali—I do not know whether he is a terrorist or not a terrorist—went to Somalia, got married and had children. He was going to come back to this country, for what purpose I know not, but when he went to Djibouti he was arrested. After his arrest, when he was being handed over to some Americans, he said “You cannot do that: I am a British citizen.” He was then told “You are not any more, because the Home Secretary has taken your citizenship away.” He ended up being kidnapped by the Americans, and is now facing a court in New York. If he has done something that merits his going before a court in New York and he has never previously been to America, he could presumably have been prosecuted here for the same offence.