Immigration Bill

Debate between Julian Brazier and Richard Shepherd

Thursday 30th January 2014 Commons Chamber

[Mr Brazier]

That question runs across several different issues. I was making the same point that the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Select Committee, made, which was about people who take up arms abroad. Whether they were born in this country or not, there is a long tradition of stripping citizenship from people who commit such offences. On the issue of murder, if somebody holds British citizenship, I would not allow the Executive a specific power in that area. I hope that answers the hon. Lady’s question.

I strongly support new clause 15. We have heard about the various cases, including one from the right hon. Member for Blackburn, and we have gone around the buoy of these three centres of power—the British Parliament, the British courts and the ECHR. I strongly support the view of Lord Judge, the outstanding retiring Lord Chief Justice, that Parliament needs to make it clear which, ultimately, is the supreme court for British law. Is it the UK Supreme Court, as he suggests it should be, or are we going to concede that the final word lies in Strasbourg? I firmly believe that the final word should stay in this country.

The point that my hon. Friend the Member for Esher and Walton made, which was repeated by a number of other people—including my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg)—is that while his proposal is almost certainly incompatible with recent rulings of the European Court of Human Rights, that cannot mean that it is illegal. This is a sovereign Parliament. We can pass the measure and the courts can try cases under it. If we make it clear, as I believe we should, that the Supreme Court in this country should be the supreme court, we do not have a problem. It is by pursuing cases such as this that we can finally sort out whether or not, as some Members on both sides claim, it is possible to sort out these issues and still accept the ultimate sovereignty of Strasbourg. We believe that we have to sort it out by, as Lord Judge argued, stating that Parliament is ultimately a sovereign body and that the Supreme Court in this country is indeed the British supreme court. Only by having a measure like this can we sort that out.

[Sir Richard Shepherd (Aldridge-Brownhills) (Con)]

I am very grateful to my hon. Friend, who mentioned our colleague the hon. Member for Esher and Walton. Our course has been different historically. In the Somerset case in the second half of the 18th century, a slave had escaped and arrived in London and with the help of, I think, the Quakers, made an appearance in front of the courts. It was held that within our jurisdiction in this country he was entitled to the protection of the law. Somerset was given habeas corpus although he was not a citizen of this country and merely a slave who was passing through this country. That was our tradition, you know.

[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.