[Relevant documents: Eighth Report from the Joint Committee on Human Rights on Legislative Scrutiny: Immigration Bill, HC935.]
Consideration of Bill, as amended in the Public Bill Committee
New Clause 11
‘(1) This section applies if the referral and investigation scheme is extended by an order under section 48 (an “extension order”).
(2) The Secretary of State may make administrative regulations in connection with the application of the scheme—
(a) to proposed marriages or civil partnerships under the law of Scotland (insofar as the scheme is extended to them), and
(b) to proposed marriages or civil partnerships under the law of Northern Ireland (insofar as the scheme is extended to them).
(3) For that purpose “administrative regulations” means regulations of any kind set out in Schedule (Sham marriage and civil partnership: administrative regulations) (sham marriage and civil partnership: administrative regulations).
(4) The Secretary of State may by order make provision about—
(a) the information that must or may be given, or
(b) the matters in respect of which evidence must or may be given,
in relation to proposed marriages or civil partnerships under the law of Scotland or Northern Ireland in cases where one or both of the parties is not a relevant national.
(5) An order under subsection (4) may amend, repeal or revoke any enactment (including an enactment contained in this Act or in provision made by an extension order or an order under subsection (4)).
(6) If an extension order makes provision (“information disclosure provision”) having similar effect to the provision made by paragraph 2 of Schedule 55 about the disclosure of information for immigration purposes, the Secretary of State may by order specify other immigration purposes (in addition to those specified in provision made by an extension order or in any provision made under this subsection) for which information may be disclosed under the information disclosure provision.
(7) The Secretary of State must consult—
(a) the Registrar General for Scotland before making administrative regulations, or an order under subsection (4), in relation to proposed marriages or civil partnerships under the law of Scotland;
(b) the Registrar General for Northern Ireland before making administrative regulations, or an order under subsection (4), in relation to proposed marriages or civil partnerships under the law of Northern Ireland.
(8) Expressions used in this section or Schedule (Sham marriage and civil partnership: administrative regulations) that are also used in section 48have the same meanings in this section or Schedule (Sham marriage and civil partnership: administrative regulations) as in section 48.’.—(Mrs May.)
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
Government new clause 12—Power to charge fees for attendance services in particular cases.
Government new clause 18—Deprivation of citizenship: conduct seriously prejudicial to vital interests of the UK—
‘(1) In section 40 of the British Nationality Act 1981 (deprivation of citizenship), after subsection (4) insert—
“(4A) But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if—
(a) the citizenship status results from the person’s naturalisation, and
(b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, any of the Islands, or any British overseas territory.”
(2) In deciding whether to make an order under subsection (2) of section 40 of the British Nationality Act 1981 in a case which falls within subsection (4A) of that Act, the Secretary of State may take account of the manner in which a person conducted him or herself before this section came into force.’
Manuscript amendment (a) to Government new clause 18, after proposed new subsection (4A)(b) in subsection (1), insert
(c) the court gives the Secretary of State permission under subsection (4B).
(4B) (1) This sub-section applies if the Secretary of State:
(a) makes the relevant decisions in relation to an individual in a case which falls within subsection (4A)
(b) makes an application to the court for permission to make an order.
(2) The application must set out how the deprivation is conducive to the public good and how the person, while having that citizenship status, has conducted himself or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom, and of the islands, or any British overseas territory.
(3) The function of the court on the application is:
(a) to determine whether the relevant decision of the Secretary of State is
obviously flawed, and
(b) to determine whether to give permission to deprive a person of citizenship in a case which falls within subsection (4A)
(4) In determining the application, the court must apply the principles applicable on an application for judicial review.
(5) In a case where the court determines that a decision of the Secretary of State in relation to the conditions set out in subsection (4A)(b) is obviously flawed, the court may not give permission under this section.
(6) In any other case, the court may give permission under this section.’.
Manuscript amendment (b) to Government new clause 18, after subsection (2), insert—
‘(3) The court is the appropriate tribunal for the purposes of section 7 of the Human Rights Act 1998.’.
New clause 13—Right of appeal: Impact assessment—
‘Before the Secretary of State makes an order under section 65 (commencement) to bring into force section 11 (Right of appeal to First-tier Tribunal) he must—
(a) undertake an impact assessment of—
(i) the number of appeals effected by the provisions of section 11; and
(ii) the costs attributable to appeals to First-tier Tribunals; and
(b) lay a copy of a report on that impact assessment before Parliament.’.
New clause 15—Exceptions to automatic deportation—
‘(1) The UK Borders Act 2007 is amended as follows.
(2) In section 33 (Exceptions), in subsection (2)(a), for “Convention rights”, substitute “rights under Articles 2 or 3 of the Convention”.
(3) In section 33, after subsection (6A), insert—
“(6B) Exception 7 is where the Secretary of State thinks, taking into account all the circumstances of the case including the seriousness of the offence, that removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would cause such manifest and overwhelming harm to his children that it overrides the public interest in removal.”.
(4) In section 38 (Interpretation)—
(a) after subsection (3), insert—
“(3A) In section 32, “Convention rights” has the same meaning as in the Human Rights Act 1998 (c. 42).”;
(b) omit paragraph (4)(b);
(c) after subsection (4) insert—
“(4A) In section 33, “rights under Articles 2 or 3 of the Convention” means Articles 2 or 3 of “the Convention” as defined in the Human Rights Act 1998 (c. 42).”.’.
Amendment 74, in clause 1, page 2, line 34, at end add—
‘(7) The Secretary of State shall by order—
(a) ensure that children are not detained for immigration purposes, except in the following circumstances—
(i) where the Home Secretary reasonably believes they are a threat to national security;
(ii) in port or border cases where departure is the following day and no application for a visa or asylum has been made; or
(iii) to provide pre-departure accommodation under subsection (7)(b); and
(b) ensure that if a child requires accommodation prior to departure it is—
(i) dedicated pre-departure accommodation which is subject to inspection by HMIP;
(ii) for a maximum period of 72 hours;
(iii) following a recommendation made by the Independent Family Returns Panel, and
(iv) with their family.
(8) Where subsection (7)(a)(ii) and (iii) applies, the officer responsible must ensure that children are only separated from their parents and carers for the purposes of child protection.’.
Amendment 79, page 2, line 38 leave out clause 3.
Amendment 56, in clause 3, page 2, line 41, at end insert—
‘(1A) In paragraph 16 (detention of persons liable to examination or removal) after paragraph (4) insert—
(5) A person detained under this paragraph must be released on bail in accordance with paragraph 22 after no later than the twenty-eighth day following that on which the person was detained.”.’.
Amendment 57, page 3, line 10, leave out subsection (3) and insert—
‘(3) In paragraph 22 (bail) at end insert—
(4) The following provisions apply if a person is detained under any provision of this Act—
(a) The Secretary of State must arrange a reference to the First-tier Tribunal for it to determine whether the detained person should be released on bail;
(b) The Secretary of State must secure that a first reference to the First-tier Tribunal is made no later than the eighth day following that on which the detained person was detained;
(c) If the detained person remains in detention, the Secretary of State must secure that a second reference to the First-tier Tribunal or Commission is made no later than the thirty-sixth day following that on which the detained person was detained;
(d) The First-tier Tribunal hearing a case referred to it under this section must proceed as if the detained person had made an application to it for bail; and
(e) The First-tier Tribunal must determine the matter—
(i) on a first reference, before the tenth day following that on which the person concerned was detained; and
(ii) on a second reference, before the thirty-eighth day following that on which he was detained.
(5) For the purposes of this paragraph, “First-tier Tribunal” means—
(a) if the detained person has brought an appeal under the Immigration Acts, the chamber of the First-tier Tribunal dealing with his appeal; and
(b) in any other case, such chamber of the First-tier Tribunal as the Secretary of State considers appropriate.
(6) In case of a detained person to whom section 3(2) of the Special Immigration Appeals Commission Act 1997 applies (jurisdiction in relation to bail for persons detained on grounds of national security) a reference under sub-paragraph (3)(a) above, shall be to the Commission and not to the First-tier Tribunal.
(7) Rules made by the Lord Chancellor under section 5 of the Special Immigration Appeals Commission Act 1997 may include provision made for the purposes of this paragraph.”.’.
Amendment 73, page 4, line 23, leave out clause 5.
Amendment 1, page 8, line 19, leave out clause 11.
Government amendment 6.
Amendment 80, in clause 12, page 10, leave out lines 18 to 33.
Government amendment 7.
Amendment 81, page 11, line 32, leave out clause 13.
Amendment 2, in clause 14, page 12, line 22, at end insert—
‘(za) first, to the best interests of any child affected by a decision as specified in section 117A(1).’.
Amendment 3, page 13, line 11, leave out ‘qualifying’.
Amendment 4, page 13, line 12, leave out ‘reasonable to expect’ and insert
‘in the best interests of’.
Amendment 62, page 13, leave out lines 14 to 39 and insert—
117C Cases involving Foreign Criminals
(1) No decision of the Secretary of State under section 33(6B) (Exceptions) of the UK Borders Act 2007 may be questioned except on appeal to the High Court.
(2) For the purposes of determining whether to give permission to appeal and determining any such appeal under subsection (1) the High Court must apply the procedures and principles which would be applied by it on an application for judicial review.’.
Amendment 58, page 13, leave out lines 19 to 39 and insert—
‘(3) The promotion of the best interests of children is in the public interest.’.
Amendment 5, page 13, line 44, leave out from beginning to end of line 3 on page 14.
Government amendments 23 to 26, 45 to 53 and 27.
Amendment 61, in clause 65, page 50, line 27, at end insert—
‘( ) Section 1 and Part II of this Act shall come into force on a day to be appointed, being no earlier than the day on which an order made by the Lord Chancellor under section 9(2)(a) of the Legal Aid, Sentencing and Punishment of Offenders Act 2013 in respect of civil legal services in connection with removal under section 1 and appeals under Part II comes into effect.’.
Government new schedule 1—Sham marriage and civil partnership: administrative regulations.
Amendment 60, in schedule 1, page 54, line 13, leave out paragraph (5).
Government amendments 28 to 44, 8 to 16, and 54.
Government motion to transfer paragraph 44 of schedule 8.
It might be helpful, before I comment on new clause 11, to set the context in which the amendments and new clauses are being moved.
This is an important Bill. It has, I think, widespread support outside this House, and will ensure that the Government have greater ability to make it harder for people to live in the United Kingdom illegally. It will make it easier for us to be able to remove people who are here illegally and will streamline the process for appeals, reducing the number of appeals from 17 to four. It will also, crucially, enable us, in certain circumstances, to deport individuals before they have their appeals, so that their right of appeal is outside of this country. It also introduces a variety of measures, one of which I will be coming on to speak to, because it relates to some of the technical amendments ensuring that people who come to this country for a temporary period contribute to our public services, as I think every hard-working family would expect them to do. It is this Government who are putting that through in the Bill.
The Bill is important because it will enhance our ability to deal with a number of immigration matters, although that is against the background of our success in reducing net migration into this country and particularly in dealing with the abuse of certain immigration routes, notably student visas. That is the context of these amendments. I take the point made by the hon. Member for Brighton, Pavilion (Caroline Lucas) about the number of amendments, but many of them are very technical and minor amendments.
Government new clause 11 is intended to ensure that the marriage and civil partnership provisions work as effectively as possible. Importantly, part 4 of the Bill will establish a new referral and investigation scheme to prevent sham marriages and civil partnerships from gaining an immigration advantage. Increasingly, sham marriages are being used as a back-door route around immigration rules. The ability to do that has been extended by the Metock case in the European Court, which has enabled people from outside the EU married to someone within the EU to gain free movement rights. There is concern about sham marriages not only in the UK, but in other parts of the EU, and the UK is leading work across Europe.
The right hon. Lady is right about sham marriages, which are an issue I tried to raise last summer. It is crazy that the law does not allow registry offices to provide information on all marriages being sought, where immigration might be an issue, directly to the Home Office. At the moment, Home Office officials have to go and look at the board on the wall in the office. Could we not change the law?
The Bill will enable that reporting mechanism. In particular, because we are extending the period that the Home Office has in which to investigate, we should see more cases being investigated. The large number of sham marriages is a problem. Sadly—I am an active member of the Church of England—there have been court cases involving Church of England clergymen actively conducting sham marriages and being brought to justice as a result. It is important, however, that we have the mechanisms in place to deal with that.
My right hon. Friend mentions that the notice period for marriages will be extended, which I fully support, but will she also confirm that the Bill will provide for shorter periods in exceptional circumstances? For example, people fighting in our armed forces overseas might, for very legitimate reasons, need a shorter notice period.
I am grateful to my hon. Friend for giving me the opportunity to clarify this issue. We will retain that ability, in certain emergency circumstances, to reduce that period for people with an urgent need to marry. It could be in the circumstances he highlights or, for example, where someone is on their deathbed. That is another emergency circumstance we want to cover.
It is important that we can deal fully and properly with sham marriages, and I believe that the Bill will enhance our ability to do that.
The right hon. Lady will know that marriages and civil partnerships are covered by Scots law and are matters for the Scottish Government. Why, therefore, is there not a legislative consent motion for this or any other part of the Bill? Surely, there should be an LCM in the Scottish Parliament so that these things can be discussed and passed properly.
If the hon. Gentleman will have a little patience—I know he might find it difficult—I will explain how the Bill will enable us to discuss such matters with the Scottish Government.
The basic design of the scheme is straightforward, but the statutory framework into which it has to be introduced is complex—marriage law in England and Wales dates back to 1949—which is why we are bringing forward further technical changes. The changes need to be reflected in the law governing civil partnership, thereby doubling the number of amendments that are required. I have said before on a number of occasions that I think it is preferable for the Government not to table too many amendments at this stage, but these are minor and technical. I hope that people will appreciate the importance, when dealing with a part of the law that is so complex, of ensuring that we are able to make amendments to ensure we get it right and that the operation of the law is appropriate.
I strongly support the Home Secretary on the extension of the time period so as to make it more difficult for those who wish to engage in sham marriages and illegal enterprises of that sort, but will there be a provision to shorten the period in exceptional circumstances? For example, what about someone serving in Her Majesty’s armed forces who is about to be deployed overseas, or someone suffering from a terminal illness? I am concerned about this. Will the Home Secretary expand on the response she gave a few minutes ago? I have heard of several examples—
Order. I am extraordinarily grateful to the hon. Gentleman. I think that what might be called by a lawyer the gravamen of his point has been heard. I do not think that a judge in one of the courts in which the hon. Gentleman has served would have allowed him to bang on for the length of time I have allowed him.
To clarify, the Bill increases the marriage and civil partnership notice period from 15 to 28 days in England and Wales for all couples, and allows it to be extended to 70 days where there are reasonable grounds to suspect a sham. But we will be retaining the ability in emergency cases such as those set out by my hon. Friend to require the notice period to be shorter than is being provided for.
I accept that we are changing the law in relation to the state obligations of civil registrars, which is part of the state apparatus in relation to this matter. There is not a requirement on clergy to report in this way. With his background, I am sure that the hon. Gentleman will share with me a desire to give a clear message that we have considerable concerns where we see clergymen indulging in the practices that I referred to earlier. We have discussed new measures with the Church of England and the Church in Wales and will continue to involve them in our plans for implementation. We are removing bands on the common licence route for non-EEA nationals to ensure that couples within the scope of the referral scheme are correctly identified. I hope that that gives the hon. Gentleman some comfort.
They will refer all non-EEA marriages to the Home Office, and the purpose of the extension of the notice is that it gives further time for investigations to be conducted. In particular, the possibility of allowing that notice period to be extended to 70 days where there are reasonable grounds to suspect a sham will enable the Home Office to investigate whether there is a genuine relationship and take immigration enforcement action where these are indeed sham cases. That will mean that an immigration advantage cannot be gained by entering into a marriage or civil partnership, if that were to go ahead. The Bill extends the powers for information to be shared by and with registration officials to help tackle these problems of sham marriages, immigration offences and, indeed, wider criminality and abuse.
I promised the hon. Member for Perth and North Perthshire (Pete Wishart) that I would refer to Scotland. The amendments allow further discussion with colleagues in Scotland and Northern reland about the extension there of the referral and investigation scheme. The new clause and schedule reflect no change in our overall approach but clarify the basis on which the Secretary of State may make regulations for the scheme in Scotland and Northern Ireland.
New clause 11 also makes specific provision for the Secretary of State to make regulations and orders concerning the operation of the referral and investigation scheme in Scotland and Northern Ireland when a clause 48 order has been made to extend the scheme there. Regulations concerning the operation of the scheme in Scotland and Northern Ireland will be subject to consultation with the relevant Registrar General, as they are in England and Wales, and they will be subject to the negative resolution procedure.
New schedule 1 supports the new clause by setting out the purposes for which regulations can be made under it, for example in respect of the specified evidence required of couples referred under the scheme. Amendment 27 to clause 64 provides for any order made under the new clause, for example in respect of the information required to give notice when an non-EEA national is involved, to be subject to the affirmative resolution procedure. Amendments 23 to 26 to clause 52 provide an explicit reference in respect of the requirement for certain non-EEA nationals to give notice at a designated register office of civil partnerships to be formed in Scotland or Northern Ireland, in a similar manner to the existing provision relating to England and Wales, and it clarifies the requirements in such cases.
Amendments 28 and 29 to schedule 4 reflect the fact that the Marriage (Same Sex Couples) Act 2013 will, where applicable, allow same-sex couples to provide evidence of consent to a same-sex marriage from their religious organisation’s relevant governing authority after notice of marriage has been given. The amendments will ensure that such couples are not prevented from giving notice if they do not yet have the evidence.
Amendment 30 to schedule 4 ensures that the requirement to provide additional information at the point of giving notice does not apply to a proposed marriage between former civil partners one of whom has changed sex. Amendment 37 to schedule 4 is an equivalent provision for a proposed civil partnership between former spouses one of whom has changed sex. Such couples will not be within the scope of the referral scheme, because no immigration advantage could be obtained from the marriage or civil partnership, and there is therefore no need for the provision of the additional information.
Amendments 31 to 33 to schedule 4, which relate to marriage, and amendments 38 to 40 to schedule 4, which relate to civil partnership, clarify the drafting of the requirement for additional information from couples who are within the scope of the scheme. They also limit the requirement to provide details of other names and aliases that are used to couples when one or both parties state that they do not have the appropriate immigration status or a relevant visa, or state that they have it but provide no evidence. Amendments 34 and 42 to schedule 4 make minor drafting corrections.
Amendment 35 to schedule 4, which relates to marriage, and amendment 41 to schedule 4, which relates to civil partnership, ensure that the Secretary of State notifies the couple, as well as the registration official, of the decision on an application to shorten the notice period in exceptional circumstances in a case referred under the scheme.
Amendment 36 to schedule 4, which relates to marriage, does two things. First, it makes a consequential change reflecting the new notice provisions. Secondly—along with amendment 43, which relates to civil partnership—it ensures that the legal validity of a marriage or civil partnership cannot be challenged just because notice of a decision under the referral and investigation scheme was not properly given by the Secretary of State.
Let me give the Home Secretary some time in which to take a breath before she continues to go through her 50 amendments. Does she think it unfortunate that the Government did not include the amendments in the original Bill, rather than tabling them on Report and not giving us enough time to debate them?
When my hon. Friend made a similar point during Home Office Questions on Monday, I said that I thought that it was always better for the Government to be able to ensure that they had covered every aspect of a Bill in the original drafting, and I am sure that that view is shared throughout the House. However, as I said at the beginning of my speech today, these are very technical issues, many of which, including some that I shall discuss later, were raised in Committee. It was appropriate for the Government to respond to the points that were raised then, and to table amendments accordingly when that proved necessary.
Amendment 44 to schedule 5 will enable registration officials to disclose information about reports of suspected shams to the Registrar General under sections 24 and 24A of the Immigration and Asylum Act 1999, as well as to other registration officials and the Secretary of State. That will support inter-agency work to tackle sham marriages and civil partnerships. New clause 12, which I tabled, relates to the deprivation of citizenship.
It is not an easily ascertainable figure. The proposals that we are discussing will enable us to investigate more cases. We have made assumptions based on marriage registration statistics, the volume of reports of suspected sham cases from registrars and feedback from immigration caseworkers who deal with applications that are made on the basis of marriage or civil partnership. The resulting estimate was that between 4,000 and 10,000 applications a year are made to the Home Office on the basis of a sham marriage or civil partnership. My hon. Friend will see from the breadth of the estimate that we need to approach the matter with caution, but it does give a guide to the potential scale of the abuse. There are details in the explanatory paper that we have published on part 4 of the Bill. I expect these provisions to give us a greater ability to identify cases, and therefore to ascertain the number of them.
I apologise to the House, because I was getting ahead of myself in setting out my new clauses. New clause 12 relates to fees. I will come on to the new clause that relates to the deprivation of citizenship afterwards. On fees, we remain committed to ensuring that the UK continues to attract tourists and the brightest and best migrants, including those who are considered to be commercially important to the UK. To ensure that we can do that, it is important that our immigration and visa services are a match for or better than those provided anywhere else in the world.
In a number of important respects, our visa services are already world class. We have expanded and improved the network of visa application centres. There are now 200 around the world, with 12 in each of India and China compared to the three or four that are on offer from most of our competitors. We have introduced online application and booking systems, and 95% of applications are now submitted online. Online applications are supported by translated help text and extensive web guidance. We have also established a business network with dedicated UK visa staff to assist businesses with their visa requirements. All of that is in line with our desire to attract the brightest and best to the UK.
I endorse everything that the Home Secretary has said about the international section of the Home Office. Does she think that there is an opportunity for more face-to-face interviews to be conducted in the posts abroad, or at least for people to be interviewed from this country through the new system of televised interviews?
The right hon. Gentleman raises the important matter of face-to-face interviews. I have made it very clear that I want to increase the number of such interviews. We reached the number that I had hoped for by the end of the year, which was 100,000. Some of the interviews are physically face-to-face and some, as he has indicated, take place remotely through the use of video screens. That is an important tool in ensuring that people who apply for visas meet the criteria that have been set. I have seen interviews take place in a couple of countries overseas and have seen that the ability of our entry clearance officers to make judgments is enhanced considerably by conducting interviews, rather than just looking at a piece of paper. We have already achieved 100,000 interviews, but I want to see how we can extend that further across the visa system.
In addition to the elements I have already described, we also offer a world-leading range of optional premium services, known as added-value services. These offer faster processing or added convenience, and are provided in response to customer demand. They are of particular value to VIPs and other high net worth individuals who want to come to the UK to visit, work or study. Most of these services are standardised, in that the level of activity required to deliver the service can easily be defined.
Examples of the added-value services include three to five-day priority visa services available in more than 60 countries, including Russia, China, India and some Gulf states. We are expanding this to more than 90 by spring this year. They also include prime-time appointment services, available in 10 locations, offering extended opening hours for those who need the convenience of an appointment outside usual business hours. In India, we have introduced the “super priority” visa service, which allows regular visitors, business visitors and tier 2 applicants to get their visa processed in just 24 hours.
May I ask the Home Secretary about the current arrangements for issuing visas to travellers from Iran? I draw the attention of the House to the fact that I am co-chairman of the all-party parliamentary group on Iran. As a result of the invasion of the embassy at the end of 2011, we do not have an operational visa section—or any other section—in Tehran, and anyone applying for a visa has to go to Istanbul or Dubai. Many of those people then have to wait for days for their visa to be issued. Those people often have connections here. Will the right hon. Lady discuss this matter with the Foreign Secretary to see whether those arrangements could be speeded up?
I of course understand the right hon. Gentleman’s point. As he said, there are good reasons why we do not have the physical capacity for people to make their visa applications in Tehran. I will be happy to look into the processing that takes place in Dubai and Istanbul, and to see whether there is any way to ensure that the service can be of a higher standard.
In the same vein, concern has been expressed about the distances that people in China and Russia have to travel in order to get their visa applications processed. Will my right hon. Friend update the House on what is being done to ensure that the high-value customers that we are looking for do not have to travel thousands of miles to get a visa to come to Britain?
As I have said, we have been enhancing the various services that we are able to provide in a number of countries; that includes the expansion of our network of visa application centres. My hon. Friend mentioned Russia and China. In China, we have more visa application centres than any of the other Schengen countries. We have 12 such centres there; most of our competitors have only three or four. We are also constantly working with the tour groups that bring people over to the United Kingdom, to see how we can enhance the service that we offer. The ability to apply online is also important. Yes, we require biometrics to be taken, but we are enhancing our biometric capture capability. For example, in certain cases the biometric capture capability can go to the individual applying for the visa, rather than the individual being required to go to the visa application centre. So we are enhancing these services, and we are conscious of the issues that he has raised.
May I support what the right hon. Member for Blackburn (Mr Straw) has just said about people from Iran? I have a constituent who was in exactly the situation that has been mentioned. His parents had to go to Istanbul to apply for visas. They then had to decide whether to go back to Iran or to hang around in Istanbul for three or four weeks to see whether they could come here. They were left in limbo, and we really need a fast-track service to deal with the parents and other relatives of people of Iranian descent in the UK who want to come here to visit them.
I hear what my hon. Friend says and understand the real example that he gives of the problems that can arise. As I said to the right hon. Member for Blackburn (Mr Straw), I will indeed go away and look at the whole issue of how visas are being processed and the length of time that it is taking.
Earlier, I said that we had introduced a super priority visa service in India, which allows a visa to be processed in 24 hours. We will expand that service to China by summer this year, and to other locations by the end of the year. In China, Russia and southern India, we are offering a passport pass-back service for applicants who wish to retain their passport to travel or to apply for a visa to another country while their UK visa is being processed. As a result of such improvements, we have achieved customer service excellence accreditation in at least one visa-processing hub in each of our six global regions. I hope that that is good news for the right hon. Member for Leicester East (Keith Vaz), the Chairman of the Home Affairs Committee, who has had a longstanding concern about the services that are provided by the former UK Border Agency, which has now been broken up.
There is also strong demand for the bespoke services from overseas customers, who want us to go to them to deliver a visa service. Up to now, those bespoke services have been offered on a small-scale trial basis, mainly in China and the USA, to test demand and ensure viability. It is clear that demand for such services is strong, and we want to roll them out further. Neither the existing fees legislation nor the current Immigration Bill provisions provides powers that would enable a workable charging arrangement to be made for bespoke services. That only became clear after the Bill had been introduced.
Charging for statutory functions, whether connected to immigration or otherwise, is a technical area. As well as legislation and common-law precedent, there is much detailed guidance, such as “Managing Public Money”, which is published by the Treasury. The legislation and the guidance are there to ensure that the imposition of fees by public bodies, including Government Departments, is transparent, consistent and subject to proper scrutiny.
Fees for commercial services that are not connected to statutory functions are treated differently. For example, there is no requirement to set out in legislation fees for commercial services. It became clear after the Bill had been introduced that it would not be appropriate to treat bespoke services as commercial services and that the provisions in the Bill, while providing additional flexibility, would not be sufficient to enable a charging arrangement that would work in the real world. The main issue is that the services are bespoke. In other words, they vary considerably from one customer to another. That contrasts with other premium services, which are generally similar where they are delivered. For example, a bespoke service may compromise a member of staff visiting a customer at a location close to the visa centre. It could involve two members of staff travelling by air to another country with security escorts and overnight accommodation. It could involve the provision of services to several people, or several members of staff could be hiring a venue to provide services to a number of a firm’s employees.
The cost of providing a service could vary from around £100 to several thousand pounds depending on the precise nature of the request. It is not possible to use regulations to set out fees that take account of all the possible service variations that could apply, so we have made a new clause that enables fees for those services to be set without the need for regulations. In making those changes, we were keen to ensure that their effect was limited to this narrow but important range of bespoke services overseas. We do not want to take away the need for regulations on other visa and immigration fees, or deliberate restrictions on bespoke services fees to apply to charging for other premium services. To achieve that, we have separated out the part of the service that involves getting staff to the location of the customers’ choosing from the immigration services that may then be provided. The attendance service fee covers all the costs to the Home Office of our commercial visa partners preparing to deliver chargeable immigration functions. To put that plainly, it means that the cost of commercial partners’ staff time, travel, accommodation, security, venue hire and so on is charged as an attendance service fee. The fee will be priced on application, agreed between the customers making the request and the commercial partner based on the specific requirements of the service.
The cost of any related visa applications and any other premium services, such as accelerated processing, will be charged separately based on fee levels set out in the regulations. As a result, while the new clause permits fees to be charged without the need for regulations, several safeguards are in place. For example, the provisions apply only to bespoke services overseas delivered by our commercial visa partners. The services are optional and may be provided only at a customer’s request, and the fees may reflect only the cost to the Home Office of providing the service, and must be agreed by the customer in advance.
New clause 12 ensures that we may continue with our plan to expand the availability of bespoke mobile services overseas. Subsection (1) makes it clear that the attendance service provisions may apply when they are connected to a chargeable immigration function and provided at a time and place requested by a customer overseas. Subsection (3) ensures that the provisions still apply when the service is connected to a chargeable function, even if no charge is imposed. For example, if the visa application fee is waived for any reason, it would still be possible to offer and charge for the bespoke service. Subsection (2) ensures that the attendance service charging arrangements apply only to bespoke services and cannot be extended to cover other chargeable functions. Fees for those other functions will, as I say, continue to be set out in regulations as they are at present.
Subsection (4) provides that the customer will be charged the costs incurred in attending the location of his or her choosing at a time specified by him or her. Such costs include, but are not limited to, the cost of travel, including flights, hotel costs, security costs, the cost of hiring a venue, and staff costs. As I said, the fee will be charged outside the fees regulations.
The costs for overseas bespoke mobile VIP services will be based on the actual cost of providing the service and will not be set with regard to the criteria set out in clause 61(5), which include growth, international comparisons and benefit. All costs will be agreed between the commercial provider and the customer before the service is delivered.
Subsections (5) to (7) of the new clause ensure that the provisions on the treatment of fees paid for chargeable functions and debt recovery also apply in respect of fees paid for attendance services and that the new clause does not undermine other legislation.
Amendments 45 and 46 are consequential and ensure that the attendance service provisions fit within the wider immigration and visa fees framework established by the Bill. Amendment 46 replaces the wording in clause 60 that is being removed as part of amendment 45 and provides that fees other than for the overseas bespoke mobile service can be calculated by one or a combination of the following factors: a fixed amount, a per hour amount, or another factor. It states that the maximum amount for the fee or other factor must be set out in a fees order, a minimum amount may be set and that the actual amount of a particular fee will be set out in regulations. When fees are set by an hourly rate or other factor, the regulations will detail how the fee will be determined—for example, £50 per hour. Those provisions will not apply to the fee for the provision of the overseas bespoke mobile VIP service.
Amendments 47 to 53 are minor consequential changes to clause 60 to ensure that it does not limit or affect the proposed clause 61. Amendment 54 is a minor consequential change to schedule 8 to ensure that there is no effect on clauses 60 to 62.
Let me now come to the issue on which I got slightly ahead of myself earlier, which is new clause 18 and the deprivation of citizenship. As we move on to this important issue and before we get on to the specifics of what the clause seeks to achieve, it might help the House if I give some background to put it in context.
Depriving people of their citizenship is a serious matter. It is one of the most serious sanctions a state can take against a person and it is therefore not an issue that I take lightly. As I am sure all Members who were around during the passage of the Nationality, Immigration and Asylum Act 2002 and the Immigration, Asylum and Nationality Act 2006 will recall, it can be a subject that generates lively debate.
It is noteworthy that depriving people of their citizenship is a concept with a long history. Almost as soon as world war one broke out, demands were made for denaturalisation of enemy aliens on grounds of disloyalty and/or their German past. That is the origin of the power. Before the war was over, legislation had been passed that made provision for revocation of citizenship if a naturalised person was suspected of treasonable activities. It has subsequently been amended to cover matters such as overt disloyalty, criminality, absence from the UK without maintaining a connection, through to it being conducive to the public good to deprive.
We are not seeking a wholly new power. The law as it stands today allows me as Home Secretary to deprive a person of their citizenship status in two scenarios. The first is when the person acquired it using fraud, false representation or concealment of a material fact. Essentially, that means that they used deception to obtain citizenship when had we known the full true facts at the time we would not have granted them that citizenship. The other circumstance is the reason why I am satisfied that doing so is conducive to the public good and that the person would not be left stateless as a result.
The Home Secretary is right that she seeks to amend a very important part of the Bill. When she appeared before the Home Affairs Committee on 16 December we raised the case of Mohammed Ahmed Mohamed, who was in Somaliland. He did not want to return to the United Kingdom, but Charles Farr told the Committee, and the Home Secretary supported this in her evidence, that there was an obligation to bring him back. There was no legal justification for taking away his citizenship or preventing him from returning. Is she now telling the House that the new clause gives her the legal basis to prevent a British citizen involved in terrorist activities abroad from returning to the United Kingdom because she can strip that person of citizenship and leave them stateless? Does it give her that power?
If the right hon. Gentleman will have a little patience, I will explain exactly what the new clause does. It extends the Secretary of State’s powers to deprive someone of citizenship. It is in response to a particular case—not the one that he has quoted—which I will describe in order to set the background in a way that I hope will be helpful for the whole House. The right hon. Gentleman has a knowledge and understanding of these issues, but it would be helpful to set out the whole background.
I apologise for not being here for the start of the debate. The Home Secretary referred to her powers where someone has obtained citizenship by fraudulent means. There may have been strong mitigating circumstances when someone made such an application. For example, we know that some years ago many people came to the country on false documents because they had been persecuted. They may have applied on a false basis, but there were strong mitigating circumstances—
If citizenship was granted purely because someone used fraud or deception, did not disclose a material fact or used incorrect facts, and if we would not have granted citizenship had we known the full facts, the decision would be to deprive that individual of citizenship. I will not comment on the type of case that the hon. Lady has set out, but the initial question would be whether citizenship would have been granted if the full circumstances had been known at the time of the application. If the full facts had been known, would the decision have been not to grant citizenship? If so, the decision would be to remove citizenship.
Yesterday the House heard many noble speeches about our international obligations and humanitarian protection led by the Home Secretary. I was the first to congratulate her on that. Today, as the clause is drafted, she appears to be asking for a blank cheque to remove people’s rights to have rights. I wonder whether she can see the irony in that and whether our international leadership does not also cover such an important fundamental right?
My hon. Friend and I have discussed this matter. I do not accept her description of what we are putting through in this Bill. We are not asking for a blank cheque. There are specific and limited circumstances in which the power would be used, which I will describe to the House. We are not suggesting that we put the United Kingdom into a situation that it has not been in before. We are suggesting that we put the United Kingdom into the situation that is required by the UN convention to which it has signed up. A decision was taken a few years ago to go beyond that UN convention. We think it is right to go back to the UN convention.
The Home Secretary knows that we are dealing with complex and serious issues, so will she explain why she tabled the new clause 24 hours before Report without consulting any outside bodies? The situation is such that we have had to table manuscript amendments to deal with serious concerns about it. Will she explain why she is acting with such urgency today, rather than allowing for consultation before introducing a measure in another place that could then be examined by both Houses?
If the right hon. Gentleman will allow me, I shall set out why we thought it was necessary to table the new clause and how we have considered the matter. I accept that the Opposition have tabled manuscript amendments. While I wait to hear what he will say about them, if there are specific concerns, I will be willing to consider them and, if necessary, address them further in another place.
The new clause is a consequence of a specific case. The power to deprive on conducive grounds is such that even when I consider the first and arguably the most important part of the test to be met—that it would be conducive to the public good to deprive—I am still prevented from depriving a person of their citizenship if they would be left stateless as a result. That was the point explored in the Supreme Court case of al-Jedda.
Will the Home Secretary help me to understand what is being proposed? There is a question of British citizens overseas, to which the right hon. Member for Leicester East (Keith Vaz) referred, and another of what would happen to someone in the UK who was made stateless. What would such a person’s immigration status be, as there would be nowhere to remove them to? Would we not be trapping someone who was dangerous to this country in this country?
When I explain the circumstances in which it would be possible to remove somebody’s citizenship, I hope that my hon. Friend will realise that it would not necessarily be the case that an individual would be left stateless, because we are talking about a situation in which they would be able to acquire statehood from somewhere else.
Perhaps hon. Members will have some patience and let me set out my points.
I will not to go into too much detail about the case of al-Jedda, but he was an Iraqi refugee who was granted British nationality in 2000. In 2004, he was detained by British forces in Iraq because of his suspected involvement in terrorism. In December 2007, the then Home Secretary made an order depriving him of his British citizenship.
On a point of order, Madam Deputy Speaker. As far as I can see, there are no copies of the manuscript amendments on the Table. It seems bizarre, on the matter of whether people should be deprived of their citizenship—[Interruption.] The Minister for Immigration can keep quiet for a moment. The reason we need manuscript amendments is that the Government tabled their new clause only at the very last minute to try to shove other measures off the agenda. Can we ensure that the manuscript amendments are available to everyone so that we know what we are debating?
Order. I have not finished my sentence yet. It would be helpful if that could be checked, although I am assured that they are available, and if copies could be made available in the Chamber for Members who feel unable to get to the Vote Office because they wish to hear the debate.
I hope that the manuscript amendments, which were tabled by Opposition Front Benchers, are indeed available in the Vote Office.
As I said, in December 2007, one of my predecessors deprived the individual of his British citizenship. That gave rise to lengthy litigation, which culminated in a Supreme Court hearing in June 2013, with the verdict promulgated in October 2013. The Court—disappointingly to my mind—rejected my assertion that the individual could reassert his Iraqi nationality and that his failure to do so was the cause of his statelessness. Its conclusion was that the question was simply whether the person held another nationality at the date of the order depriving them of British citizenship.
Having studied the Supreme Court determination carefully and considered my options, I asked my officials to explore the possibility of legislating to address the key point identified in the al-Jedda case, namely that our domestic legislation, and the changes brought about in the 2002 and 2006 Acts, go further than is necessary to honour our international obligations in terms of limiting our ability to render people stateless.
That may have been well intended. It was done, as I believe, in anticipation of signing the 1997 European convention on nationality. We have never signed that convention and this Government have no plans to do so.
It is also important to stress—it is a point that has been made by a couple of Members already in interventions—that I have discussed this at length with colleagues across Government; it is not something I have just decided on. Given the importance of the subject matter, we wanted the time to ensure that we got it right. Indeed, I had a meeting with my hon. Friends in the Liberal Democrat parliamentary party on 4 December last year to discuss the proposal and listen to their concerns and the issues they wished to raise.
The United Kingdom has signed the 1961 UN convention on the reduction of statelessness. We made a declaration on ratifying that convention to allow for the prospect of leaving a person stateless in certain circumstances. Those circumstances include the ability to deprive a naturalised person of their citizenship, regardless of whether or not it might leave them stateless, where that person has conducted themselves in a manner seriously prejudicial to the vital interests of Her Britannic Majesty.
I am a naturalised British citizen and the clause therefore applies to me. I support it wholeheartedly. There are rights as well as obligations that come with British citizenship. Perhaps my right hon. Friend should go even further—the Immigration Bill may not be the place to do so—and introduce similar sanctions against anyone who is British, irrespective of how they got British citizenship, if they do something so heinous against the British state.
My hon. Friend makes an important point about his position and also about the desire that we have in the House to ensure that we can take appropriate action against people who are acting in a manner that is not conducive to the public good and who are acting in a manner that is seriously prejudicial to this country’s interests.
New clause 18 recreates—
When I first became a Member of this House, anyone born in Britain automatically became a British citizen. That right was taken away by the Thatcher Government. Will this law apply to the children of people who have acquired British citizenship?
It applies to somebody who is a naturalised person. That is who it applies to. It seeks to recreate the very specific sub-set of cases that are currently provided for under the “conducive” power. It would allow me to deprive a person of their citizenship, regardless of whether it left them stateless, but as I say, it applies only to those who are naturalised, not those who are British by birth or those who register to acquire citizenship under other provisions of the 1981 Act—
If the right hon. Gentleman would wait—such as those which provide for children to acquire British citizenship. And it would apply only to very serious cases of people whose conduct is
“seriously prejudicial to the vital interests of the United Kingdom”.
Those safeguards and limitations are important. The amendment will allow the key consideration to be whether the person’s actions are consistent with the values we all attach to British citizenship. We may all have a slightly different interpretation of what they might be, but I am confident that Members of this House would agree that this is encapsulated by the oath that naturalised citizens take when they attend their citizenship ceremonies.
My right hon. Friend will know that for some time I have asked for the Home Office to look at the 11% of foreign prisoners in the Prison Service in England and Wales, see where there is dual citizenship and have that UK citizenship withdrawn from those who have committed the most serious offences, yet only a handful of people have had their citizenship withdrawn. How does that position reconcile with the new position today, which I support? It may stand the legal test here up to the Supreme Court if it went that far, but—a secondary question—would it stand the test of the European courts?
I understand my hon. Friend’s point about foreign national offenders. The Government are conducting an exercise to ensure that we can deport more foreign national offenders from our prisons to serve the remainder of their sentence elsewhere, and the prisoner transfer agreements that my right hon. Friend the Secretary of State for Justice is negotiating are an important part of that. However—this is the important point—this power applies in a very particular set of circumstances in which someone has conducted themselves in a manner seriously prejudicial to the vital interests of Her Britannic Majesty. The power being put into the Bill will apply in only a very limited number of circumstances. My hon. Friend also asked whether it would stand the test elsewhere. I believe that it will. What we are doing is returning the United Kingdom to the position set out in our international obligations under the United Nations convention.
I recognise that there are many questions that Members wish to ask on this. I am answering the questions and taking as many interventions as Members are requiring. I will give way again shortly.
A stateless person is defined by article 1.1 of the 1954 convention relating to the status of stateless persons as one
“who is not considered as a national by any State under the operation of its law.”
If they are inside the UK, we, as a party to that convention, are legally obliged to comply with its provisions, which set out various rights for stateless people. One of our aims in seeking to deprive might be to remove the individual from the United Kingdom, as I have indicated. It might not always be possible to do that, especially when the individual is stateless. If they are deprived, they become subject to immigration control, but we have provisions in the immigration rules that enable a person regarded as stateless to regularise their stay.
One of the things that concern me is the definition of “seriously prejudicial.” If we look up “prejudice” in the dictionary, we see that it just means something we have decided before, so “seriously prejudicial” could be anything a Home Secretary liked. I am absolutely convinced that the present Home Secretary would never in any way abuse that power, but how do we know what will happen next week, next month, in two years’ time, or in five years’ time? A Home Secretary will be able to use a term that is so vague and has so little meaning that they could strip someone of any citizenship, leaving them stuck in this country with no ability to work, receive benefits or do anything at all, simply because of a definition that is pretty much meaningless.
I think that the concept of something that is seriously prejudicial to the interests of Her Britannic Majesty—to the interests of the United Kingdom—will be understood. There will of course be an opportunity for a review of that through a court process—a judicial review—so the definition would be tested. My hon. Friend might not choose to rely on the abilities or understanding of future Home Secretaries, but I hope that he will see that there is a further safeguard.
I wish to reiterate—this is an important point—that that is the position the United Kingdom had prior to 2003, when the law was changed. It is the position that we are required to have under the United Nations convention. All that we are doing is returning our position to the scope of our declaration under that convention. It goes no further.
In response to an intervention, the Home Secretary said that at some point a stateless person’s position in the UK could be regularised, which is an interesting concept. If they became stateless, they would in the meantime presumably become destitute in this country, because they would not be eligible for access to any benefits or other aspects of society. Has she considered that, and are there any people in that situation at present?
The answer to the second question is that there are no people in that situation, because I have not been able to deprive anybody of their citizenship and therefore potentially make them stateless. That is the existing situation. If somebody is stateless and either does not apply for citizenship of another state despite having access or is denied permission to do so, but stays in the United Kingdom, we would have to look at the situation and at their immigration status. Crucially, their status would not attract the privileges of a British citizen—they would not be entitled to hold a British passport or to have full access to certain services—so they would therefore be in a different position from the one they were in when they held British citizenship.
I am most grateful to the Home Secretary for giving way for a second time. I understand what she is trying to do and I believe her when she says that she will use the powers only rarely, but she still has not answered this question: once she has taken away citizenship from someone in this country and they are stateless, how will she get them out of this country? We know full well that she is doing this because Jacqui Smith tried to get rid of al-Jedda and was not able to do so. That matter is still before the courts, and the right hon. Lady’s judgment will also be challenged in the courts. How will she get such people out once she has taken away their British passport and they have no travel documents?
The al-Jedda case went to the Supreme Court, which promulgated its verdict last October, which was when we started to look at how we could legislate and what vehicle we could use to remove people. That circumstance might apply to somebody in the United Kingdom or, as in that case, to someone outside it. The important point is that the process applies in cases where the individual could access the citizenship of another country, and it would be open to them to apply for such citizenship. That is the whole point.
I am grateful to the Home Secretary for being very generous in giving way again. She may recall the case of Abu Hamza, who was an Egyptian citizen as well as a British one. Under the Government of Mubarak, the former President of Egypt, his Egyptian citizenship was withdrawn, leaving a very difficult case for this Government and, indeed, the previous one to deal with. The Home Secretary has surely come to the House with some figure in her mind of the number of those currently on the prison estate who might fall into the Abu Hamza category. I wondered what the number is.
My only comment on my hon. Friend’s request for figures is that he mentioned people on the prison estate. We are not necessarily talking about them, but the number of people involved is very limited. The number of cases of the particular type of deprivation of citizenship dealt with since the law was changed—I apologise for saying that that was in 2003, because the law was changed by the 2006 Act—is 27. Since 2006, 27 people have been deprived of citizenship under the conducive powers, which apply only when somebody would not be made stateless.
Yes. People need not have been convicted of a particular offence to be deprived of their citizenship. On the numbers, it might be helpful for me to add that 13 people were deprived on grounds of fraud during the same period. Those are the sort of numbers that we are talking about.
I am most grateful to my right hon. Friend, who has been extraordinarily generous in giving way. I broadly support this measure, which addresses a small number of very serious cases, but can it be applied to somebody abroad at the time? If it can be so applied, how would any subsequent appeal handle sensitive intelligence material of the sort that clearly could not be allowed to go, for example, to Strasbourg?
I am very grateful to the Home Secretary for giving way. Is it not the case that she has not got a clue? She has brought forward the measure to prevent proceedings on what Conservative Members want to discuss and vote on. To say that this was concocted on the back of a fag packet would do a massive disservice to fag-packet speeches.
It is a bit rich of the Scottish National party to talk about not having a clue. I must say to the hon. Gentleman—I have said it before and I will say it again as many times as necessary—that we are giving effect to our declaration under the United Nations convention. That position applied in the United Kingdom until the previous Government changed the law in 2006, and we will return to that position.
I am sure that my right hon. Friend appreciates that the way in which the provision is expressed will give the Secretary of State enormous power. Effectively, it involves the opinion of the Secretary of State, which will make it largely non-justiciable. Given its width and the cases of which the Home Secretary has given examples, is there a danger that we might be regarded as a nasty party if we put this kind of provision into effect?
And of course of the Scottish nationalists, who are adopting their usual posture. Is it not correct that this law was effectively on the statute book previously, so it cannot be all that exceptionable and that it was repealed by the Labour party because, in 1997, it wanted to sign us up to another European convention?
I am grateful to my hon. Friend for actually listening to what I have said this afternoon. He is absolutely right. The previous Government changed the law because they were going to sign up to the new European convention on nationality, but they did not do so. We have not signed up to it, and we do not intend to do so. It is therefore right to take the law back to the previous position, which is that of our international obligation under the United Nations convention.
May I press the Home Secretary on our international position under the 1961 convention on the reduction of statelessness, to which we are a signatory? My understanding is that we would be required to seek a reservation from that convention. Is that correct, or does she plan that the UK should operate in contravention of it?
The reason I have been on my feet for more than an hour is that I have been incredibly generous in taking interventions from Members in all parts of the House. This is an important Bill, which we must get right, and an important new clause. I am taking interventions on new clause 18 in particular because I recognise that Members have not had as long to consider it as they would perhaps have wished.
The Government have been considering the matter since we saw the result of the al-Jedda case. I specifically asked officials whether there was anything that we could do to ensure that we would be able to take action against people whose activities, particularly those related to terrorism, were seriously prejudicial to the state. Lo and behold, we discovered that had it not been for the law that the last Government passed, I would have been able to deprive al-Jedda of citizenship.
As another naturalised British national, I fully support what the Home Secretary is doing. May I ask her for clarification? Five British nationals had their nationality taken away under the previous Government, and 16 had their nationality taken away under the current Government between 2010 and 2012. What has happened to those people? Have we been able to return them to their countries of origin? If not, is that why the Government are pushing forward with the new clause—so that we can do that in future?
My hon. Friend makes an important point. In some cases we are able to return people, and we do a lot of work with other countries, through our agreements on deportation with assurances, to ensure that we can deport people elsewhere. Of course, there was a particular case in which we could not take such action against an individual because it would have rendered them stateless, notwithstanding the fact that they were in a position to apply for citizenship of another state.
I thought that I had provided some clarity in the answer that I gave the right hon. Gentleman earlier. The law will be limited to naturalised citizens and will not apply to anybody who has British citizenship by any other means. The action would be taken against the naturalised British citizen, not their child.
I recognise that there are consequences, and they have been considered. The circumstances that the right hon. Gentleman mentions are if the child was in the United Kingdom and their parent was elsewhere conducting activity that was seriously prejudicial to the United Kingdom. That would be considered on a case by case basis—there would not be a tick-box, mechanistic approach. All circumstances would be looked at in considering whether it was appropriate to apply the new power to an individual. There are safeguards within the proposal, such as the seriously prejudicial nature of the activity that an individual must have undertaken.
I had not quite finished my response to the right hon. Member for Holborn and St Pancras (Frank Dobson) when I allowed the right hon. Member for Delyn (Mr Hanson) to intervene. I repeat the response that I gave earlier to the former: the law will apply only to those who are naturalised, not those who are British by birth or those who acquired citizenship under other provisions of the 1981 Act, such as those that provide for children to acquire British citizenship. I hope that I have perhaps made that clearer to the right hon. Member for Holborn and St Pancras.
I will not discuss an individual case, but if the right hon. Gentleman wishes to write to me about it, I will respond to him. I have set out the powers that I already have to deprive citizenship, which are twofold. The first circumstance is when somebody has acquired citizenship through deception or fraud, and the second is when somebody has acted in a manner that is seriously prejudicial to our national interest and they would not be rendered stateless as a result of the deprivation of their British citizenship.
I am grateful to my hon. Friend for putting the matter so succinctly and sensibly. This is about dealing with people whose behaviour is seriously prejudicial to the United Kingdom, and I would have thought that we all wanted to ensure that the Government had the appropriate powers to do that.
The Home Secretary is doing sterling work in taking interventions on new clause 18. May I thank her for coming to talk to Liberal Democrat colleagues about it? I understand what she is trying to achieve with it, but I still have a number of concerns. She places great reliance on the point that the people affected will be able to get another citizenship. Does she think it is likely that somebody who is in this country and has been deprived of citizenship will find it easy to go to another country and say, “Here is my background. Britain has just stripped me of citizenship. Could I have yours, please?” Or will we just find those people stuck in this country and unable to leave?
As I made absolutely clear, if somebody was in a position to acquire other citizenship, I would expect them to attempt to do so. As I indicated earlier, there may be circumstances in which somebody remains stateless, in which case our international obligations to those who are stateless would kick in, and we would abide by them.
I have spent some time looking at cases in which people have been deprived of citizenship, many of whom were abroad. Does the Home Secretary agree that it is reasonable for the judicial review clock to start ticking at the point when the person affected becomes aware that such a decision has been taken rather at the time when it is taken? There is a three-month limit on applying for judicial review of the decision, and to allow proper consideration that clock should start ticking when the person in question becomes aware of it.
The Home Secretary will know that I, along with many other Members across the House, have championed refugees being allowed to come to the UK in some numbers. As she will know, in the case of Syria, there is a national security issue relating to British nationals with either single or dual citizenship returning to this country and possibly causing problems here. How quickly does she believe the new law will be in place, and does she believe it should apply to nationals and dual nationals coming back to the UK from Syria?
My hon. Friend raises the important issue of people who may have trained and fought in Syria potentially coming back here radicalised and with the desire to do us harm. I am sure that is a matter of concern throughout the House. As I have indicated, I believe the power in question would be exercised in a limited number of cases, but it is important that the Government have it. As I have said, they had it until about 10 years ago, then the law was changed to reduce their ability to take action against those acting in a way that comes under the definition of “seriously prejudicial” to us. It is important that we have such a power, but I am not in a position to say to my hon. Friend that I will suddenly use it in a number of circumstances. The power will be used on a case-by-case basis, but, as I have indicated, I expect that it will be used in a very limited number of circumstances.
I will conclude my remarks on new clause 18 by stating again that it is consistent with our obligations under international law and, as I have said, it was a power we had for most of the past century. It is a carefully constructed measure designed to give effect to our declaration under the UN convention on the reduction of statelessness, but it goes no further. My officials, together with those from other relevant Departments and in consultation with our in-House legal advisers, conduct the research and provide a recommendation on each case, but these are decisions that I—or, on the rare occasions I am not available, another Secretary of State—will review and sign off personally. The persons subject to provisions in the new clause will continue to be afforded an independent right of appeal, retaining an avenue of judicial redress. This is not about arbitrarily depriving people of their citizenship; it is a targeted policy that will be used sparingly against very dangerous individuals who have brought such action upon themselves through terrorist-related acts. I urge the House to conclude that new clause 18 is a proportionate and necessary measure.
New clause 13 stands in the name of the right hon. Member for Delyn (Mr Hanson), and I will wait to hear what he says and respond to the issues he raises. New clause 15 has been tabled by my hon. Friend the Member for Esher and Walton (Mr Raab), and I will make a few comments about it. I respect the fact that he will speak about his own new clause, so at this point I will not go into all the detail but will simply set out a few points.
I think we are all agreed across the House—this is one of the things the Bill tries to do—that we want to enhance the ability of our country to deport foreign criminals from the United Kingdom where it is appropriate to do so. The Government have taken a simple position on article 8 of the European convention on human rights, which is that our judiciary have not been interpreting it in the way we believe it should be interpreted, because it is a qualified right in the European convention itself. Having changed the immigration rules, and that not having had the effect we desired, we are now putting it into primary legislation and ensuring that we clarify absolutely what the qualified interpretation of article 8 should be in relation to the Government’s ability to remove people from the United Kingdom. I believe that is an important change that the public, as well as Members of the House, would wish us to put through. It is right that the Government are taking this opportunity to include that measure in the Bill. We all have a shared desire to ensure that we enhance our ability to deport foreign criminals.
My hon. Friend the Member for Esher and Walton has tabled a new clause that would amend the Bill, but I think that some aspects of it would not strengthen our ability to deport foreign criminals, but could actually weaken it. Other aspects of the language he uses might indeed strengthen our proposals.
I thank the Home Secretary for giving way as there are many things to discuss in this group of amendments. Has she received any formal advice from the Attorney-General or her departmental lawyers that the new clause would be compatible with the European convention on human rights?
The advice I have received is that it is incompatible with the European convention on human rights. I am concerned with other aspects of the new clause because I believe that in a number of areas it weakens the Government’s proposals in relation to article 8. I am also concerned about the practical application of the new clause, because in reality I think we would effectively hinder our ability to deport people for a period of time because there would be considerable legal wrangling about the issue.
Let me expand on a few of those points. I say to my hon. Friend the Member for Esher and Walton, we all want to ensure that we make the Bill as strong as possible when dealing with the deportation of foreign criminals. The Bill makes it clear that the deportation of a foreign criminal is in the public interest, even for those with prison sentences of less than 12 months if that offending is persistent or causes serious harm. New clause 15 relates only to automatic deportation, and therefore to offenders who are sentenced to 12 months of more. It would be for the courts to decide on the proportionality of deporting persistent offenders or those whose offences cause serious harm but who are sentenced to less than 12 months, and no guidance from Parliament is provided on the tests that should apply. The new clause weakens the Bill in relation to those offenders, and the Government’s proposal has a stronger ability to deal with that.
The new clause also distinguishes between those sentenced to between one and four years’ imprisonment and those sentenced to more than four years. It provides that those sentenced to more than four years should be deported unless there are compelling circumstances, and that those circumstances must be over and above the unduly harsh consequences of deportation on the criminal’s family.
There is an issue about the sort of wording used. I think the Bill goes further than the new clause. The new clause allows “manifest and overwhelming harm” to a child to override deportation, even for the most serious criminals, but the test of whether there would be manifest and overwhelming harm to a child is unclear. We can argue about whether that is a weaker test than requiring “very compelling circumstances”, but I think such issues raise concerns about my hon. Friend’s new clause.
I am making a few comments about the new clause. I would like to hear my hon. Friend the Member for Esher and Walton speak about it and hear whether he intends to press it to a vote.
I think that where children are involved the new clause weakens the Bill, and as I have said, there are concerns about how the measure would operate and its practical implications. I think it would lead to circumstances in which—potentially for a significant period of time—we would not be able to deport people who otherwise we would be able to deport.
I have indeed taken a strong line on trafficking, but the exclusion of certain other articles of the convention in the new clause is one of the aspects that makes it incompatible with that convention and raises the issue of how it would operate. I have already indicated that I think the new clause is incompatible with the European convention, and I am raising some of the other practical issues that I think would be its impact. I think we will find it harder to deport people because of some aspects of the new clause, and that more cases will go to the European Court as that would become the first decision maker in a number of cases. There would be considerable litigation in the domestic courts if we found ourselves seeking to remove someone contrary to a rule 39 indication. Those are practical issues about whether we can deport individuals.
I recognise the concern of my hon. Friend the Member for Esher and Walton, and others, about our ability to deport foreign criminals, and in relation to the European convention on human rights. I have said on many occasions that it is necessary for the Government to determine and sort out our relationship with the European Court of Human Rights and the European convention on human rights, and as far as I am concerned, nothing should be off the table in doing that. Today we are considering a Bill that will deal with the deportation of foreign criminals.
I am sorry, but I answered that question earlier. I said that I will respond to the comments that my hon. Friend the Member for Esher and Walton makes, and see whether he moves the new clause. I will make the Government’s position clear to the House. [Interruption.] I am sure the hon. Lady believes that debate in the House is important. I am therefore sure she agrees that listening to hon. Members is also important.
As I have said, the Bill puts in place stronger practical arrangements that will enable us to deport more foreign criminals, which all hon. Members want.
It looks like the Home Secretary is nearing a conclusion, but may I press her on amendment 74, which I have tabled, and which would write into law the Government’s achievement of ending child detention for immigration purposes? The Immigration Minister has said that he would come back to that. Will the Home Secretary update the House on progress? Will the Government accept my amendment or come up with a better drafted version?
The Government accept the principle of my hon. Friend’s point. We propose to reinforce the commitment to end the detention of children for immigration purposes by putting key elements of the family returns process into primary legislation. That will involve providing a statutory prohibition on the detention of children within immigration removals centres, subject to the exceptions agreed in 2010, which continue to be Government policy; providing families with children a minimum of a 28-day reflection period following the exhaustion of appeal rights against a removal before their enforced removal; placing a statutory duty on the Secretary of State to appoint an independent family returns panel to advise on the best interests of the child in every case in which enforced return is proposed; and providing a separate legal basis for pre-departure accommodation independent of other immigration detention facilities. Our intention is to introduce those amendments in Committee in the House of Lords. I hope that covers my hon. Friend’s concerns on ending child detention for immigration purposes.
The right hon. Lady will be familiar with the two Rochdale grooming cases. The country of origin of some of the perpetrators of those horrific crimes is not the UK. Will the Bill make things easier? Will she assure me and the people of Rochdale that, under the Bill, those who committed those crimes can be sent back to their country of origin?
I cannot give the hon. Gentleman a guarantee on any specific case, but the Bill will make it easier for us to deport foreign criminals. It clarifies the interpretation of article 8 in a way that will make it easier for us to deport foreign criminals. It ensures that foreign criminals can be deported first, unless there are particular circumstances in the country to which they are going, and appeal against their deportation afterwards. However, on people who have been convicted of a crime and who are in our prison estate, my right hon. Friend the Justice Secretary is working hard with Home Office immigration enforcement people to ensure that we can remove more foreign criminals to their country of origin in a number of ways, such as through prison transfer agreements.
The House shares the concern that we should be able to deport more foreign criminals. The Bill strengthens our ability to do that. I would not wish to see it weakened in any way. As I have said, I have concerns with some aspects of new clause 15, tabled by my hon. Friend the Member for Esher and Walton, because it could weaken our ability to deport more foreign criminals. However, I recognise that he has sought to strengthen the language in the Bill. The public want an immigration Bill that strengthens our ability to deport foreign criminals to get through Parliament. That is a shared aim. I believe that that is what the Bill, as drafted, does.
The Home Secretary spoke for just over an hour and a half, but at the end of her contribution I am still not clear on key aspects of the Government’s proposals. I am not clear whether the Government as a whole have a united position on them. Do the Liberal Democrat members of the Government have a different view? The interesting proposals in new clause 15, tabled by the hon. Member for Esher and Walton (Mr Raab), are yet to be considered the Government in a full and frank way.
I want to mention measures on which I agree with the Government, as the Bill does contain measures that the official Opposition support. On new clause 11, the Home Secretary has our full support for her proposals to tackle sham marriages. Sham marriage is a serious problem. The Home Office estimates that 4,000 to 10,000 applications to stay in the UK each year are based on sham marriage or sham civil partnership—the Minister for Crime Prevention and I discussed this extensively in Committee. That is a significant number of cases and action is needed.
New clause 11 deals with the situation in Northern Ireland and Scotland, which the Opposition raised in Committee, and contains measures we support. We can support the measures on same-sex marriage, on which we sought clarification in Committee. New clause 11 is welcome, and the Opposition support it.
As I have mentioned, we have four and a half hours for the debate. The Home Secretary took one third of that time for her opening contribution. She explained the issues, and I look forward in due course to listening to hon. Members’ concerns. I will try to take less time than her, but I have some things to say.
I reach out a hand of friendship on new clause 12. The Opposition will not oppose it today. It is reasonable to try to recoup charges from individuals who use our services, but we might disagree with the Government, because we believe we need to improve those services. As the Home Secretary has recognised, we need to ensure that the charges do not deter the brightest and best, and those with skills, from coming to work here to create jobs and growth in our economy. We need to ensure that they do not deter students. I am afraid that Government policies currently deter students from coming to the UK. We need to ensure that we do not turn away people who will contribute strongly to our community. The tourism economy is particularly important. We need to ensure that the level of charges, which we will discuss shortly, does not damage investment in our economy through tourism.
The Opposition have three concerns. The Home Secretary devoted around 45 minutes to new clause 18. I accept and understand that it deals with a serious problem. We are dealing with people who are undertaking activities—terrorism—that are of great concern to the state. Having been a Home Office Minister in the previous Government dealing with terrorism and counter-terrorism activity, I understand the need to examine those matters. I should tell the Home Secretary clearly that it is not acceptable, at least as far as the Opposition are concerned, to bring a major new clause to deal with that to the House 24 hours before the debate on Report and Third Reading. We have only four and a half hours to debate important issues, including European accession—the Opposition and the Government have different views on that, but it is valid to discuss them—new clause 15 and the concerns of the hon. Member for Esher and Walton. I tell the Home Secretary that that is not the way to discuss sensitive issues such as taking steps to deprive individuals of their citizenship.
I have listened to what the Home Secretary has said on a number of measures. My right hon. Friend the Member for Holborn and St Pancras (Frank Dobson) has concerns. Others, including the hon. Member for Eastleigh (Mike Thornton) and, dare I say it, the hon. Member for Stone (Mr Cash) have raised pertinent issues of concern. However, we have less than three hours to reach conclusions on these major measures.
The right hon. Gentleman makes a legitimate point about time. Putting the detail aside, in the kinds of cases raised by the right hon. Member for Leicester East (Keith Vaz), the Chair of the Select Committee, where people abroad are believed to be—in some cases they are found to be—in arms in opposition to British interest, should we or should we not make it easier to have their citizenship removed and their ability to return to the UK ended?
As a Minister in the previous Government who dealt with terrorist activity and looked at terrorist plots and the information to which the Home Secretary is now privileged, I know there are circumstances where the Government need to address serious issues. The question I put to the hon. Gentleman and the Home Secretary is this: new clause 18 was tabled 24 hours ago and there has been no consultation—[Interruption.] The Minister for Immigration says that it was tabled on Tuesday, but it was published yesterday morning; the first sight of it was then. A range of outside groups would like to examine the consequences of the proposed legislation, yet today the House of Commons is expected to approve it. The Opposition want to reserve judgment on some of the details that have been mentioned. We want to look at the measures, take advanced legal advice and consult outside bodies, which the Government should be doing, so we can consider the implications.
Is what my right hon. Friend saying on new clause 18 not indicative of the whole approach to the Bill? It has not been adequately debated anywhere. Most of it will be not be debated today and it will pass through this House unexamined. The Bill will have appalling consequences for an awful lot of things in society, not just the new clause he is discussing now.
I have to say to my hon. Friend, with the greatest of reverence for his long service in Parliament, that the Minister for Immigration and I spent far too long in Committee on this matter through most of October and November, and we are doing so again today. There has been discussion and division on some of the measures in the Bill.
New clause 18 was published yesterday morning. The Immigration Law Practitioners Association sent a brief at 4 am today. That was the first opportunity it had to put down its views on this matter:
“The amendment on the order paper on 29 January 2014 and on that date we first had sight of the Government’s European Convention on Human Rights Memorandum pertaining to the clause. We do not attempt to address herein the complex questions of the present day effects of the UK’s declaration”,
and in the light of that it will have to look at the matter when it comes to another place. The ILPA may or may not have valid points, but we are 24 hours from passing a serious piece of legislation. We had a long period in Committee. The issues relating to the al-Jedda judgment of summer to autumn 2013, which the Home Secretary mentioned, have led to her introducing these measures. We will have to look at them in detail. This is not a good way to place such an important issue, which has the potential to impact on people’s liberty and citizenship.
The right hon. Gentleman is right that we discussed some of this at great length in Committee. I share his view that there should be more pre-legislative scrutiny. This Government have done more than previous Governments, but there is much more to do. I also share his concern about amendments and new clauses being tabled only two days ahead of time. Does that mean that he and his party will ensure that Opposition day motions are never tabled just a day before debates? That would make it easier for all of us to read them.
The hon. Gentleman politicises a point I am trying to make about process. He knows how Opposition motions are drawn up and he knows that they do not have the same impact as legislation. The proposed legislation will have the effect of depriving citizenship. If an Opposition motion is voted on and defeated one thing will happen: there will be political noise about an issue. This is about the deprivation of someone’s citizenship. We may, ultimately, make the judgment to support the Government, but this is an important point about process that I think we need to make.
I am grateful to the shadow Minister for giving way. I agree entirely with his comments and it is unusual for the Home Secretary to be filibustering her own Bill. Where does he think the Government could have learned these tricks? Could it have been from the Blair Government?
I was honoured to serve for 12 years in the Blair Government and I do not think we filibustered that much.
The Home Secretary addressed some issues relating to new clause 18, but they still need to be examined in detail. For example, what definition does she have of “seriously prejudicial”? Who applies that definition? What type of person does she expect to lose citizenship? How many individuals does she expect to be impacted by this?
So late in the day was the new clause tabled that we have had to table two manuscript amendments this morning, in the name of my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) and me, that include the potential for discussion on judicial oversight. The Home Secretary touched on her role and responsibilities relating to judicial oversight, and we need further clarity on that. In the winding-up speech, whether delivered by the Home Secretary or the Minister of State, I would welcome a view on our amendments. Judicial oversight would give us some comfort on whether this is an appropriate measure to take, given the seriousness of removing someone’s citizenship.
The shadow Minister raises concerns about the short notice given on the content of today’s debate. He also makes clear his expertise, having served in this area in the previous Government. Under the previous Government, five British nationals were stripped of their nationality. Will he clarify what happened to them? Were they sent back to their country of origin or not? Does he accept that there was a defect in the existing legislation and that we need to move forward with the new proposed legislation?
That is so clearly not a point of order. In three years in Parliament the hon. Gentleman clearly has not got the hang of it yet, but he has got his point on the record. May we please now return to the very important issues in the Bill?
In passing, may I say that I think my hon. Friend the Member for Gillingham and Rainham (Rehman Chishti) has exactly got the hang of it?
The Opposition spokesman mentioned the need to have proper judicial oversight, and his manuscript amendment attempts to provide for it. I have some sympathy with the amendment, although probably not enough to vote for it. Given what he is saying now, however, why did the Labour Government, of which he was a member, bend over backwards when passing asylum and immigration legislation and do their absolute damnedest to avoid judicial oversight?
Lots of things are learned by experience, but this is an extremely serious issue. If the hon. Gentleman sees merit in our manuscript amendments (a) and (b), he should, between now and 4 o’clock, discuss that with those on his Front Bench, because I do not want to divide the House on such serious issues concerning the rights of individuals and the protection of people in the UK. I just think there is an issue here: this matter was brought to our attention late, and we want to ensure judicial oversight. I hope we can deal properly with the issue in another place, with full support and after full consultation. Let us discuss this matter genuinely.
The principle is the deprivation of the citizenship of individuals who are naturalised, and that might be a positive thing, but we would need to consider it in detail. We have only had 24 hours. I want to consider the legal implications, as well as the issues raised by my right hon. Friend the Member for Holborn and St Pancras. We need to look at judicial oversight and when and how notice should be given. We also need to look at what rights individuals have to appeal and what happens if someone is in another state when the decision is taken. What should be the responsibility and response of that other state? What should happen to the family? These are important issues which we need to cogitate and reflect on, and to return to in another place.
I have looked at cases of people who have had their citizenship withdrawn while they have been out of the country, and there is a big issue about people becoming aware of a decision to remove their citizenship and having an opportunity to challenge it. Does the shadow Minister accept that although his objective is an improved procedural protection, his proposal runs the risk, in certain circumstances, of reducing it, because by the time someone finds out about a decision, the matter will have already gone to court, on an ex parte basis, and a decision will already have been taken? Perhaps it would be better left to judicial review, with the person having an opportunity to challenge a decision when they become aware of it.
My objective is the same, I think, as the Home Secretary’s, which is to protect the British people from potential terrorist activity at home and abroad. That is a key joint objective.
New clause 18 raises complex issues on which a range of individuals will have a view, but on which there has been no consultation outside the House. Let us look at the manuscript amendments and consider whether we could tighten up the process so that we are all content, and we will reserve judgment until we reach another place, at which point I hope we can reach a conclusion that meets our objectives.
I recognise the right hon. Gentleman’s point about the time to consider the new clause, and I am happy for the Government to have discussions with him to set out in more detail how it would operate. On that basis, I hope he will consider not moving his manuscript amendments, although obviously, following those discussions, the Opposition could come back to them in another place, if they felt it necessary.
I am grateful to the Home Secretary for her accommodation, and obviously we will reflect on her comments. This is an important issue, which is why we tabled the manuscript amendment. It is unusual for such amendments to be taken, so—I should have done this before—I would like to thank Mr Speaker for accepting it at this late stage. We tabled it so late simply because the new clause was also tabled late.
I want to address two more issues, and then allow other Members to speak. Our new clause 13 and amendment 1 relate to an important matter, raised with me by many of my hon. Friends, about tribunal appeals. Clause 11 will remove immigration tribunal appeals from the armoury of individuals who wish to stay in the UK, and replace them with administrative review, which, in my view, is already part of the process. This is important because, while the tribunals continue to uphold decisions, in many cases they overturn decisions made by the Home Office. We have discussed this matter in Committee and elsewhere. We estimate that 50% are overturned; the Government have a lower estimate, but we agree that decisions are being overturned at tribunal. If tribunals are abolished, such decisions could not be overturned at tribunal.
Our new clause 13 seeks to ensure that before
“the Secretary of State makes an order under section 65 (commencement) to bring into force section 11 (Right of appeal to First-tier Tribunal) he must…undertake an impact assessment of…the number of appeals effected by the provisions in section 11…and…the costs attributable to appeals to First-tier Tribunals; and…lay a copy of…that…assessment before Parliament.”
In the light of the Government’s own assessments, we think that the cost of people going to judicial review, rather than tribunal, might be about £10 million year, and that Her Majesty’s Treasury will lose about £4.2 million a year because tribunal costs will not be met. There are cost implications, never mind the issue of basic fairness, which is that the sort of people currently having their appeals upheld at tribunal will not have that opportunity in the future.
Has the shadow Minister noticed an anomaly that concerns me and on which I hope the Home Secretary can give some clarification? It appears that if someone applies for variation in leave, that leave is protected if their administrative review is pending, but not if they appeal.
That is another issue. Our amendment 1 would remove clause 11 from the Bill and allow the Government to reflect on the concerns raised by the hon. Lady—she speaks from the Government Benches, but I appreciate that she has an independent frame of mind—and on those expressed outside, in evidence to the Committee, and by my right hon. and hon. Friends about the impact of abolishing tribunals on the sort of people currently having their appeals upheld. Individuals are having their appeals upheld at tribunal, but under clause 11 such appeals will not be possible. Our proposal is either, in amendment 1, to remove clause 11 or, if the Home Secretary cannot accept amendment 1, in new clause 13, to provide for an assessment beforehand so that we can consider this matter in detail.
Madam Deputy Speaker, you will be pleased to hear that I am coming to my final point, although I have only spoken for half an hour—considerably less time than the Home Secretary took. The hon. Member for Esher and Walton has a range of support for his new clause 15, and in due course I will want to hear again what he has to say about it. Like my right hon. and hon. Friends, I want to see foreign criminals deported. That is right and proper. I was pleased, as well as doing counter-terrorism, to serve under my right hon. Friend the Member for Blackburn (Mr Straw) in the Ministry of Justice. He went to Vietnam to negotiate a deal to deport terrorists and prisoners there, and I went to Nigeria to do the same. We also negotiated a deal with the EU for it to accept foreign criminals, which the Government are now implementing and from which they are reaping the benefits. We have an interest in ensuring that foreign nationals living in this country who commit crimes and go to prison serve a sentence and then are ultimately returned to their home state.
There is, and we can explore that in due course, but I want to focus on the new clause tabled by the hon. Member for Esher and Walton, as the principle of removal is a reasonable one. Let us look at some of the tests that the Home Secretary talked about. I am not one to do this very often, but let me give credit to the Home Secretary: she is trying to make progress on a couple of issues in relation to existing legislation to try to improve the process of deportation. We have given our support to do that, but that process has not yet been developed, examined or evaluated. There is scope for us to look at whether what the Home Secretary has proposed is right and proper and is put into effect.
The hon. Member for Esher and Walton has a long history inside and outside this House of dealing with these matters, but there are still some concerns on the Opposition Benches about the measures that he is proposing, not because we do not want to deport foreign criminals, but because we want to do it in a way that maintains our integrity in relation to the convention on human rights and our integrity with our European and world colleagues. I say that because in relation to a similar amendment that he tabled to the Crime and Courts Act 2013, I have seen a note that perhaps I should not have seen—
I am going to. It is from the Home Secretary to the right hon. Member for Witney (Mr Cameron), who happens to be the Prime Minister. In the note, on the hon. Member for Esher and Walton’s amendment to the Crime and Courts Bill, the Home Secretary said that the amendment
“would be incompatible with the UK’s obligations under the ECHR… Nevertheless if this amendment passes both Houses of Parliament and becomes law the Secretary of State will be required to act in accordance with it and make deportation orders notwithstanding other ECHR obligations. This would significantly undermine our ability to deport foreign criminals.”
There are real issues that need to be explored. The Bill restricts appeals against deportation that use the right to a family life in article 8. We have supported the Government’s efforts to do that. There are foreign criminals who have committed serious crimes whom we cannot deport and who have used article 8 inappropriately, but the new proposals have not yet been tested in the courts. We support the Government’s view that the proposals in the Bill should be implemented and that gives us grounds to have severe scepticism about supporting the hon. Gentleman’s proposals. What I am not clear on is whether the Home Secretary shares that scepticism, whether she intends to allow the new clause to go forward, or whether she intends to block, support or abstain on it. I would welcome clarification by the time the hon. Gentleman has made his points.
I have served with the hon. Gentleman on a number of Committees. We have had useful and positive cross-party discussions. I say to him honestly that we have taken legal advice and we believe that the proposal would put us in contravention of ECHR responsibilities. The Home Secretary, I think, has had the same advice and the Home Secretary, I think, shares our view. The question for the Home Secretary is whether she wishes to exercise her judgement today or at a later date.
I am grateful to the right hon. Gentleman for giving way a second time. We have had a valedictory speech from Lord Judge, the previous Lord Chief Justice, in which he stated very clearly that it is time for it to be made clear which is the supreme court of this country: our Supreme Court or the court in Strasbourg. Does he have a view on that?
I am dealing with the practicalities of the issue before us today. [Interruption.] If the hon. Gentleman wants an answer, I will say that the ECHR is a valuable tool and we should uphold our obligations within it.
Provisions in new clause 15, according to our legal advice—I think it is shared by the legal advice that the Home Secretary has received—could cause more difficulties and breach our ECHR responsibilities. Those issues are to be tested, but we are left saying that if this is pushed to a vote we would potentially be looking at not supporting the hon. Member for Esher and Walton, depending on what he says. We will see in due course.
I will do so, but I say to the right hon. Gentleman, with whom I have served on Committees and whom I greatly respect, that I have had just over half an hour. The Home Secretary, for a range of reasons, talked for one and a half hours. I am trying responsibly to set out the view of the official Opposition so that Members can form a judgment.
I am grateful to the right hon. Gentleman. Before he finishes, will he comment on my amendment 74 about writing into law the end of child detention? Does he share my pleasure that this will now happen and that it will stop any future Government doing what the last Government did and detaining over 7,000 children within five years, including for 190 days? Is he pleased about that change?
I do not share the hon. Gentleman’s judgment on most issues, but that could be looked at. My hon. Friend the Member for Croydon North (Mr Reed) attended discussions yesterday on this matter and we will look at those matters in detail.
We are not the Government today; we are the official Opposition, on behalf of whom I say that we have severe concerns about new clause 15 and about the process and potential implications of new clause 18, but we will reserve judgment on that. The issue of the removal of tribunals is one that we need to address and to delete from the Bill. We need to look at some of the other issues before we give the Home Secretary unqualified support.
After many weeks of discussion, we have an Immigration Bill on which the Government appear to me, as a simple Front Bencher, to be in chaos on some of the key issues on which they will be judged. We must judge the Home Secretary on what she says, but there are real issues that need to be resolved. I would welcome hearing from the hon. Member for Esher and Walton why he believes that his proposal will not breach the ECHR on these matters. With that, I conclude to ensure that hon. Members have an opportunity to contribute.
I wish to speak to new clause 15 and amendment No 62 in my name and that of 105 other hon. Members from across three parties in this House. Subject to the will of the Chair, of course, I intend to press them to a vote to test the opinion of the House.
I welcome the engagement and consultation with officials and Ministers over what has been a two-year period, and with Opposition Members. I think what the shadow Minister said was code that they are going to abstain and I welcome that as well.
My gut instinct at the moment is not to support the hon. Gentleman by actually voting against him. I want to hear what he has to say and I also want to hear from the Home Secretary on whether there are further measures that we could jointly take to tackle the curse of foreign criminals not being deported in an appropriate way that meets our ECHR obligations.
I thank the shadow Minister for his intervention, which was a very elegant way of sitting on the fence again.
The problem with which the new clause and amendments would deal results from the judicial expansion of the right to family life under article 8 of the European convention, which allows serious foreign criminals to evade deportation. It is, I think, common ground that the Strasbourg Court has steadily eroded United Kingdom deportation powers over the past few decades, but the tightest fetters have come from the UK courts as a result— rightly or wrongly—of the Human Rights Act 1998.
Let me move away from some of the technicalities for a while, and stress that the impact on ordinary people is stark. Let us not lose sight of whom we are talking about. My campaign began in my constituency when Bishal Gurung, a waiter in Esher, was killed in a very vicious attack, and his body was dumped in the River Thames. The perpetrator, Rocky Gurung—no relation—was convicted of manslaughter. He would have been sent back to Nepal, but he scuppered the deportation process by claiming his right to family life, although—remember that this was a homicide conviction—he was a single adult with no dependants. One can imagine how Bishal’s family felt about that.
This was not an isolated case. According to the reply to a freedom of information request that I submitted, the number of successful article 8 challenges to deportations by foreign criminals ranges from 200 to 400 a year, and the latest snapshot indicates that they constitute 89% of all successful human rights challenges to deportation orders. It is necessary to study the case law of the Immigration and Asylum Tribunal to appreciate the extent to which such cases warp the moral balance of British justice, endanger the public, and, for many people outside this place, make “human rights” dirty words. That is something that I deeply regret.
Some argue—and I want to address their argument head on—that the rights of the partners and children of convicted serious criminals must be given due weight, but the crucial point is that, in reality, the application of article 8 is being expanded to protect the rights of the criminals, not those of their families. Far from safeguarding the vulnerable, it can expose them to undue pressure, if not worse, from dangerous offenders. Let me give just two examples.
In one case, a man who had been jailed for raping his partner twice relied, successfully, on his relationship and daughter with the same woman to avoid deportation. It worries me that female victims may be coerced into being reunited with violent criminals who see them as a legal lifeline enabling them to stay in this country. In another case, a drug dealer who had been convicted of beating his girlfriend, and who had been jailed twice for other brutal, barbaric attacks, successfully cited his young daughter as a ground for evading deportation, although he had never paid maintenance and had scarcely seen his daughter until lawyers explained that that might help his case, and although the mother did not want her daughter to visit him in prison. Far from protecting children, article 8 risks making them pawns, subject to coercion or worse, in criminals’ desperate struggle to resist deportation and stay in Britain.
Let us be clear about what the law, rightly or wrongly, is achieving. In 2012 the Home Secretary rightly sought to address the problem, by changing the immigration rules, but that was only a rule change, and predictably, because of the way in which sections 3 and 4 of the Human Rights Act work, it was not upheld by the courts. I say “predictably” because I think that I have explained the position in the House before; I have certainly done so publicly, and with Ministers, following consultation.
In the Izuazu case, Mr Justice Blake pointedly stated:
“'Whilst it is open to Parliament to change the law by primary legislation unless and until it does so these decisions are binding...and will be followed”.
So we have tried once and that did not work; and it was clear that it would not work because of the way in which the Human Rights Act operates. I am not necessarily criticising the Act; I am merely making a point of fact.
Part 2 of the Bill seeks to reintroduce what is effectively the same balancing exercise as that in the immigration rules in order to give the factors in favour of deportation statutory force. Of course that is a step in the right direction, but the UK courts are required only to “have regard” to the factors that are listed, and that leaves the courts wide discretion. Sections 3 and 4 of the Human Rights Act clearly require such discretion to be exercised in a way that complies with existing human rights case law in this country. In short, there is a real risk that nothing would change.
Let me deal briefly with the Home Secretary’s suggestion that my new clause would risk our being involved in a huge amount of litigation. There is always a risk of litigation when the law is changed, but because the new clause is much shorter, clearer and more succinct than the wide, sophisticated, complex balancing exercise in the Bill, it is much less likely to attract the kind of satellite litigation to which the Home Secretary alluded. I therefore think that the Bill as it stands would make the position worse than it would be if my new clause were accepted.
I admire my hon. Friend and respect his position, but my fundamental concern about his new clause is that it is being described by lawyers—from both the Labour party and the Government, it seems—as a measure that is incompatible with the legislation, will not work, and will actually slow the process down. I want us to deport as many foreign criminals as possible, but will not the new clause make that more difficult?
I know that my hon. Friend takes a close interest in these matters, and I shall try to address his point very squarely. I urge him to intervene again if he feels that I have not done so satisfactorily, in which case I shall spell out my argument more clearly.
My new clause differs from the clauses in part 2 in that it is mandatory. Serious offenders cannot pull out and wield article 8 as a joker to trump deportation. Unless there is a tangible threat to life or limb, those convicted killers, rapists, drug dealers and other serious criminals should be sent home: they should not remain on the streets of Britain.
I spent a long time crafting and consulting on my new clause. It allows a very narrow exception to the wider automaticity of deportation when that is in the overwhelming humanitarian interests of the children involved, but the discretion is to be exercised by the Home Secretary rather than the courts. The new clause uses a Home Office mechanism, or model, to protect that discretion from human rights challenges by expressly stipulating that the only challenge can be by way of judicial review.
As my hon. Friend knows, I am one of the co-signatories of the new clause. However, the Home Secretary legitimately raised the possibility of unintended consequences should the new clause remove the discretion and flexibility that currently exists in relation to the discretion to deport someone who has been in prison for less than 12 months.
My hon. Friend has made a perfectly reasonable point, but the new clause is tailored to serious criminals, which is all the more reason for it to be considered reasonable and proportionate. Of course, if the Government wish to insert a provision covering persistent petty offenders—which would be far more likely to attract challenges under article 8, because in the case of less serious offences deportation is more likely to be deemed disproportionate—they will be able to do so. However—it is odd to be attacked for not being tough enough—I think that the main focus should be on those who are jailed for a year or more. That is the model in the UK Borders Act 2007.
May I take up a point that I made to the Home Secretary earlier? As the hon. Gentleman knows, people are often trafficked, but the fact that they have been trafficked is not recognised immediately. Such people may have committed crimes while being trafficked, and may have served sentences of more than a year. It seems that, as a consequence of the restrictive nature of the new clause, we would be willing to send those people back to enslavement following the removal of article 4.
That is an important point, but I think that I can give the hon. Lady some reassurance. If I understood her correctly, she was suggesting that because article 4 would be removed as an excuse for trumping deportation, we could send people home to be subject to slavery or something akin to it. That would automatically be caught by article 3, which covers “inhumane or degrading treatment”. There has never, to my knowledge, been a case in either the Strasbourg or the United Kingdom courts in which deportation has been trumped on the basis of article 4. It would already be covered under article 3, which is very well-trodden ground. I therefore think that her entirely legitimate concern has been catered for, but if she wishes to intervene again, I will give way to her.
What about other matters relating to the convention, such as the right to practise one’s religion and the right to a private life in relation to one’s sexuality? Is there not a possibility that people would be sent back to a country where they would be persecuted?
From the sound of it, I have reassured the hon. Lady on the first point, which is good news. On the second point, a deportation order has never been trumped on those other grounds. The only grounds on which that has happened are article 2 on the right to life, article 3 on the right not to be tortured and article 8, which now makes up the lion’s share. I therefore do not think that that problem would arise. She talked about persecution. Let us be clear that any persecution that threatens life or limb is already caught by the exceptions under articles 2 and 3. I have deliberately preserved those because the hon. Members from across the House who support the new clause and I support the absolute prohibition on torture and inhumane or degrading treatment. If she is really concerned about this focused issue, those exceptions will deal with all those cases.
I will make a little progress, but I will certainly come back to the hon. Gentleman.
The key difference between my proposals and part 2 of the Bill is that my proposals would deal with the problem. They do not require us to scrap the Human Rights Act or pull out of Europe. To the great chagrin of some of my colleagues, my proposals do not dip their toe into those totemic, polemical matters. They would not be struck down by UK judges, because they would be unequivocal primary legislation with overriding force. They are expressly within the terms of the Human Rights Act. That is spelled out in the memo to which the shadow Minister referred, if he reads it carefully.
We must be clear that incompatibility and illegality are two different things. It is clear that the UK courts would enforce the new clause that I am putting before the House. It is also clear from the most recent Home Office advice that I have received, to which hon. Members have also referred, that the new clause would not attract a rule 39 injunction from Strasbourg. That is because there would be no irreversible harm. It is extremely rare that Strasbourg would even consider a rule 39 injunction in such a case. The original memo that the shadow Minister cited referred to this matter, but the most recent memo from the Home Office team that has been sent to me, which is from November, is very clear:
“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”
Of course, it is likely that if my new clause attracted a rule 39 injunction, the clauses in part 2 would be equally susceptible to such a challenge. That is the key point: the official advice from the Home Office is that such a challenge is very unlikely.
I will just expand on this point. I have quoted the advice that I have received. If anyone thinks that the new clause has been tabled with the aim of flouting UK law or engaging in illegality, as opposed to doing something that might be incompatible with the wider, opaque obligations of the ECHR, they misunderstand the point. It is wrong to say that that is what the Home Office’s advice states, because I deliberately sought its advice.
Even if we face a longer-term claim to Strasbourg that is not based on injunctive relief, the new clause remains faithful to the convention. We must not forget that for a second. Paragraph 2 of article 8 on the right to family life provides a list of grounds for curtailing the right to family life, including law enforcement, crime prevention, public protection and protecting the rights of others, which is what the colleagues from both sides of the House who support the new clause care so deeply about.
I understood the hon. Gentleman to mean that he had sought the same legal advice as the Home Secretary. The Home Secretary said clearly that the Attorney-General had said that new clause 15 was incompatible with the European convention on human rights, but the hon. Gentleman says that he has seen the same advice and that the new clause is compatible with the convention—or have I got that wrong?
Very briefly, that is not what I was saying. I think that the hon. Gentleman has added one and one and made three. I have received a memo from the Home Office team that sets out the position on rule 39 in relation to article 8 cases. Precisely because of the concerns that are shared across the House, I asked whether we were likely to see a deportation process gummed up by a rule 39 injunction.
If I may, I will make a triaged intervention, Madam Deputy Speaker. To clarify, all I said was that I had received legal advice. It is not the practice for Ministers to say in this House whether legal advice has come from the Attorney-General or from other sources. I am absolutely clear from the legal advice that I received that new clause 15 is incompatible with the European convention on human rights.
In answer to my hon. Friend, the advice from the Home Office is absolutely clear that a rule 39 injunction would be less likely to be imposed where the decision had undertaken a balancing act in considering the issues. That is precisely what the Bill allows. My hon. Friend’s new clause does not allow that. That is why rule 39 would be more likely to be used under his proposal.
I thank the Home Secretary for her intervention. I have the memo that I received in front of me. I will read from it so that there is no doubt and so that hon. Members can make up their minds. It states that it is clear from the case law that
“it would only be in exceptional cases that an interim measure would be granted in an A8 case.”
It goes on to say:
“I can’t say whether there has ever been a Rule 39 in a UK A8 case, but it is obviously rare.”
It goes on to say, because I was asking the question in relation to the Government’s clauses:
“we do not expect interim measures under Rule 39 to be issued routinely, if at all.”
I do not want to engage in a clash of legal opinions here, although the Attorney-General is free to intervene on me, but I say briefly in response to the Home Secretary that there is nothing in the limited case law of Strasbourg to suggest that the Bill and the new clause that I have tabled are different. One never gets such precision from the Strasbourg Court and I do not think that that is what the Home Secretary meant.
I thank my hon. Friend for keeping the House updated on that important development.
The key point is that it is clear from the text of the European convention—I have referred to paragraph 2 of article 8—that, under the terms expressly set down by the architects of the convention, the new clause is proportionate. It is proportionate because it applies only to serious criminals who have been imprisoned for a year or more. It therefore ought to withstand any appeal to Strasbourg.
I remind the House that we are not entirely sure how any litigation in Strasbourg on this issue would pan out, whether on the basis of the Bill or the new clause. That is partly because the 47-member-state Council of Europe, to which the Strasbourg Court is accountable, has made two recent declarations in Izmir and Brighton calling on Strasbourg in unequivocal language to meddle less in immigration cases. We therefore have every reason to believe that we will have a greater margin of appreciation in future. I pay tribute to the Minister without Portfolio, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), for the efforts that he made when he was Justice Secretary to achieve those resolutions, which have paved the way for the new clause.
I will not give way again, because I have been reasonably generous to the hon. Lady and I want to give other Members an opportunity to speak.
If we are honest, we know that any serious reform in this area risks being frowned on by the Strasbourg Court at some point in the future. The goalposts keep on shifting. That is how we got to this point in the first place. However, the same objection applies to the Bill. As the president of the Supreme Court and the former Lord Chief Justice, Lord Judge, have stated many times, the last word on the balance between human rights and public policy must remain with the UK courts and, ultimately, with elected and accountable law makers in Parliament.
There has been a lot of heady talk about human rights reform. Today, we have an opportunity to do something about it.
I will not give way because I want to give other hon. Members a chance to speak. I am sure that the hon. Gentleman is one of those who will be queuing up.
New clause 15 and amendment 62 are practical, common-sense proposals that would protect the public, restore some common sense to our justice system and restore some trust outside this place. I commend them to the House.
On 24 November 2003, a young girl aged 9, Amy Houston, was killed on the west side of my constituency of Blackburn by a man driving a motor car, Aso Mohammed Ibrahim. He was an unfounded asylum seeker with no basis for remaining in the United Kingdom, and at the time of the motor accident had a number of convictions for driving while disqualified and driving without insurance. He received a relatively short prison sentence for causing death by careless driving. Thereafter, he developed a relationship with a woman in my constituency who already had two children by other men. He then went on to commit further offences.
When the Home Office made efforts to deport Aso Mohammed Ibrahim, he resisted them on article 8 grounds. The matter went before a tribunal, which found in his favour. I was Justice Secretary by that time, and I spoke to the then Home Secretary, my right hon. Friend the Member for Kingston upon Hull West and Hessle (Alan Johnson), who ensured that a vigorous appeal was mounted in respect of that tribunal judgment. A new appeal was established, but that too was lost. Principally, it was lost on the ground not of Strasbourg law but of the way in which the British courts had widened the basis of article 8 beyond that of Strasbourg in order to protect individuals in this situation.
Knowing far more about the background of the case than ever went before the tribunals, my opinion was—and remains—that that man had abused his position in this country and set out to develop a relationship with a woman and have children with her solely in order to evade deportation and immigration controls. It is a matter of regret to me and to my right hon. Friend the Member for Kingston upon Hull West and Hessle that the courts appeared to endorse his wilful decision to evade those controls.
It is for those reasons that I, and those on my Front Bench, strongly support the amendments to the law that appear in clause 14 of the Bill. I have great regard for the hon. Member for Esher and Walton (Mr Raab), and I have talked to him at considerable length about the merits of his new clause. I am also listening carefully, as I said I would, to the debate today. I have no difficulty with seeking to direct the British courts towards a different conclusion from that towards which they are currently directed by the higher domestic courts in this country. That is also the purpose of clause 14.
I do have a problem, however, with the House knowingly deciding to legislate in a way that the best advice suggests would be incompatible with convention rights. That is because I am a strong supporter of the European convention on human rights. If the House wishes to decide to leave the convention, or to abrogate individual parts of it, it should seek to do so explicitly, rather than through an amendment of this kind. I accept that the hon. Gentleman has thought carefully about this matter, but it is with regret that I shall be unable to support his proposal today.
I also want to say a few words to those who think that this is all about the Human Rights Act. I was the Minister responsible for the Act, and I am proud of it. I hope that I will not cause the Attorney-General, the right hon. and learned Member for Beaconsfield (Mr Grieve), too many blushes if I say that I remember his courageous maiden speech in the House, in which he spoke out in favour of the Human Rights Bill, as it then was. Those on his Front Bench voted against the Bill on Second Reading, but by the time we reached Third Reading they had come round and wished the Bill well.
Given that the Attorney-General is in his seat, does my right hon. Friend agree that it would be appropriate for him to help us by telling the House what advice the hon. Member for Esher and Walton (Mr Raab) and the Home Secretary have had on this measure? In that way, he could provide clarity to enable us to discuss the matter formally.
Order. If the Attorney-General wishes to speak, he will find the right time to do so. It is not up to the right hon. Member for Delyn (Mr Hanson) to decide when that should be, and it should certainly not be in the middle of a speech by the right hon. Member for Blackburn (Mr Straw).
I am sure that the Attorney-General and the hon. Member for Esher and Walton have had discussions about this, but for the avoidance of doubt, it does not lie in my mouth to suggest that the Attorney-General’s advice to Ministers should be made public. [Interruption.] And I would say to my hon. Friend the Member for Rhondda (Chris Bryant) that I do not think there are good reasons to make that advice public. We are all entitled to legal professional privilege, including Ministers.
Yes; that is even more important.
I want briefly to comment on a point made by the hon. Member for Canterbury (Mr Brazier) on the way in which the higher courts have interpreted the Human Rights Act. I am proud of the Act, and although we can always amend legislation in the light of experience, I do not believe that it needs to be amended. It is a well crafted Act that brings into British law the convention rights to which we are subject anyway. The idea was that those rights should be accessible here, rather than in Strasbourg. Abolishing the Act would not remove our obligations under the European convention; the British Government would still be subject to them, but those rights would be more difficult to access.
The problem with the Human Rights Act is the way in which our higher courts have interpreted sections 2 and 3. They place on the courts an obligation to “take into account” Strasbourg jurisprudence, but our courts have interpreted that as meaning that our courts should follow Strasbourg jurisprudence. If the House had meant to use the word “follow”, we would have put it into the legislation. We did not do so; we used the words “take into account”. The Law Lords, in their wisdom, decided that in practice that meant “follow”.
But does the Supreme Court have any option but to follow Strasbourg, where there is a clear authority in Strasbourg? It knows that the case will then go to the Strasbourg Court, that its decision will be disapproved and that a contrary decision will come from Strasbourg. So, where there is a clear line, the Supreme Court has to follow Strasbourg in that way.
With great respect to the hon. and learned Gentleman, the occasions on which the judgments of the Strasbourg Court are absolutely clear and on the point are extremely infrequent. It would also be unusual for a case to get that far if a case in Strasbourg was four-square with an incident case in the British courts. What would be the point of taking such a case that far?
We do not want to get drawn down that particular rabbit hole, but the case of Hirst makes my point. For the avoidance of doubt, if the hon. and learned Gentleman reads the original judgment in that case, he will see that it involved such uncharted territory that at least five of the senior judges in the Strasbourg Court found in favour of the United Kingdom Government and not in favour of the criminal, Hirst. I also say to the hon. and learned Gentleman that if he follows a whole series of lectures given by very distinguished jurists in this country from Lord Hoffmann through to Lord Judge, he will see that there has been a strong current of opinion among our high judiciary against the views that are being taken by the Law Lords and the Supreme Court. Happily, I have summarised those in the second lecture I gave in the Hamlyn series in 2012, and I will send my notes to the hon. and learned Gentleman.
There is a serious issue that we need to put right to ensure that, in future, greater flexibility is given to the British courts. Yes, of course the courts have to apply the convention, which was the point made in the articles; that is made absolutely clear under section 2 of the Human Rights Act. As for the degree to which the courts apply the Strasbourg jurisprudence based on those convention articles, they need to take account of it, but not follow it. It is very important that our courts get back to the intention of this Parliament in 1998 when it passed the Human Rights Act. Had they done so, Aso Mohammed Ibrahim would not still be in this country. The problems we ran into there were not in respect of the convention of the Strasbourg Court or of the Human Rights Act, but in respect of the way in which article 8 had been interpreted by our own courts. It is my earnest hope that clause 14 will lead to some change in that.
I hope that the Home Secretary will take away and consider what the hon. Member for Esher and Walton has proposed. He was a very good lawyer in the Foreign Office when I was Foreign Secretary. He is not someone who is foaming at the mouth about the Human Rights Act. There is serious purpose in what he has suggested, and there may be a way through to meet halfway, between what the Home Secretary proposes and what he proposes.
On this point of the legality, it is clear from how the Human Rights Act has been drafted that, where there is an incompatibility, ultimate sovereignty remains with Parliament and the Government. Therefore, the issue of illegality is separate from incompatibility. Given all the points that the right hon. Gentleman has made about the opacity, the shifting goal posts and the difficulty of nailing down the case law in Strasbourg—it does not have a doctrine of precedent—does he also agree that, for all the talk of Government legal advice, it is almost next to impossible, unless one is giving defensive and cautious advice, to give clear and focused advice on where Strasbourg will go, let alone where it is currently at?
There are some instances where it is obvious, and some where it is less obvious. The hon. Gentleman is correct to say that even if a judgment is made by the Attorney-General, and indeed if the declaration is made by the British courts of incompatibility with the convention rights, section 4 of the Act makes it absolutely crystal clear that those provisions remain in force. That was part of the elegant architecture of the Human Rights Act. The role of the Parliamentary Counsel was to ensure that parliamentary sovereignty over individual legislation was maintained. The problem of the hon. Gentleman—as he knows I really wanted to support his position—is that the Home Secretary has a duty under section 19 of the Act to say whether or not the provisions in the Bill as it goes forward are or are not compatible with the convention.
I once signed a certificate saying that a particular Bill was not compatible with the convention, and Parliament still passed it. None the less, it does create difficulties. We cannot suddenly, on a wing and a prayer, say, “Well, in five years’ time, this will end up before the Strasbourg Court.” It is something that will come before Parliament at the next stage of this legislation.
I am slightly troubled by the right hon. Gentleman’s argument. When the original Act was brought forward, the Home Office publication was clear. It said that the Bill provides for legislation
“to be interpreted so far as possible so as to be compatible with the Convention. This goes far beyond the present rule which enables the courts to take the Convention into account in resolving any ambiguity in a legislative provision.”
At the time the Human Rights Act was put before the House, the Home Office knew exactly how far-reaching the change would be.
I do not follow the hon. Gentleman’s point. None the less, it is still the case that the Home Secretary signs a certificate under section 19 saying that the Bill is compatible with the convention. Section 3 of the Act requires primary legislation to be read and given effect in a way that is compatible with convention rights, and that is what we are talking about. Parliament can pass any Act it wants. It may be incompatible, but it can still be in force. We are all concerned to ensure that as many people as possible are deported, where it is justifiable, as quickly as possible.
With respect, the hon. Gentleman is confusing section 3 with section 2. Section 3 says that the courts must read legislation
“in a way which is compatible with the Convention rights.”
That is the black letter text of the convention articles. Section 2 says that a court or tribunal that is determining a question which has arisen in connection with a Convention right “must take into account” the judgments and jurisprudence of the Strasbourg Court. It is in respect of section 2 and the jurisprudence of the Strasbourg Court that our courts have extended the words “take account” to mean “follow”. That has been the basis of some of our problems, including the over-extension and elaboration—unnecessary in my judgment—of article 8 rights.
I am aware that there are others who wish to speak, so I will finish there.
I have a number of amendments in this string. I wish to speak to amendments 56 and 57, which relate to immigration detention. Amendments 2 to 5 and 58 are around the best interests of children. Amendment 61 is a sunset clause, which relates to legal aid. Amendment 60 relates to the use of force. I want to make a couple of remarks relating to Opposition amendment 1 and to speak against new clause 15 and Government new clause 18. I can hear Members groaning that I will be speaking for absolutely ages. They will be amazed because I can be remarkably quick.
Amendments 56 and 57 seek to impose some kind of challenge and limit on detention. The UK detains more people under immigration powers than almost any other country in Europe. Only Greece detains more, but it tends to detain people only for very short periods of time as they come to the border. In fact, we are unique in detaining people indefinitely. That experience of indefinite detention causes profound stress to the individuals concerned, many of whom suffer from mental health difficulties as a result of the journey that they made to get here, and many exhibit profound mental health difficulties during their period in detention.
Furthermore, in many cases, we have no chance of removing the people whom we have in detention to a third country. Often, people are left languishing in detention for extended periods because we are unable to move them to the country of their origin either because it is not safe to do so or because we cannot obtain travel papers. We have been repeatedly criticised for the number of people we detain and for the length of the period for which we detain them. Indeed, the detained fast track system seems to be largely used for administrative purposes. [Interruption.]
Order. The Chamber has suddenly got very noisy. The hon. Lady is making important points, and other Members should do her and the House the courtesy of listening. If conversations have to take place, there are plenty of places outwith the Chamber in which those conversations can occur.
Thank you, Madam Deputy Speaker.
The detained fast-track scheme seems to be a process largely of detaining people for administrative ease, often for extended periods, despite its name. It is as if we file people until we want to move them somewhere else and they end up being treated like blocks of paper rather than individual human beings.
Does the hon. Lady agree that much of the detention is essentially punitive and without benefit of due process? We should always remember that these people have committed no crime.
I absolutely agree with the hon. Lady. Of course, it is not effective in doing what we claim to be trying to deliver. The people detained over a long period of time are those whom we are least likely to be able to remove. Detention Action monitored long-term detainees and found that only a third were ultimately removed or deported. The longer somebody is in detention, the less likely they are to be removed. Extreme stress is caused to the individual, extreme expense is caused to the UK and no benefit is gained for the wider common good.
Amendment 56 seeks to limit the time of detention to 28 days, forcing the Home Office to do what most other countries in Europe have managed to do and find some other way of enforcing removal without putting people into detention. Indeed, 82% of returned asylum seekers in Sweden left voluntarily. When I was a children’s Minister I had a great deal of discussion with the Home Office about ending child detention and we eventually managed to reach an agreement. I was pleased to hear the Home Secretary say in response to an intervention from my hon. Friend the Member for Cambridge (Dr Huppert) that we would put some of those provisions on the face of the Bill. I shall await the detail with interest and hope that everything we agreed in 2010 will be included and that it will not just be an agreement in headline.
There is of course a question mark over whether some detainees are minors. They often arrive in this country without the appropriate documentation and it can be difficult to know whether they are past the age of majority. Those youngsters, who subsequently prove to be minors, are still kept in detention.
There is a particular difficulty with the speed at which we determine the age of young people at the moment and it varies significantly from one borough to another. I encourage the Home Office to work closely with local authorities to try to speed that process up.
My point is that we have managed to do such a thing for families with children and a great deal of learning has happened in the Home Office that we could extend to adults held in detention. We are managing to remove people whom we want to remove without putting them into detention, and a great deal of good and innovative thinking has been happening. It would be fantastic if good practice in one area of the Home Office was to extend to other areas of the Department. A 28-day limit would sharpen the mind of the Home Office and encourage it to get on and do that.
Amendment 57 would ensure that people had an opportunity to challenge their detention by ensuring that it came up regularly for review. The review would first happen shortly after they went into detention and then at intervals thereafter. The UNHCR has repeatedly asked us to look at that and I strongly urge the Home Secretary to consider it.
Unfortunately, in direct competition with my proposals to try to encourage better due process for people in detention, the Government are proposing to remove people’s rights to apply for bail. That is a very retrograde step. I know that the hon. Member for Hayes and Harlington (John McDonnell) has tabled amendments on this matter, and if he decides to press them to a vote I will certainly support them.
I have also tabled a raft of amendments on the best interests of children. The drafting of clause 14 appears to imply that certain children are somehow invisible, which goes completely contrary to the work I did in government as a children’s Minister. It was with significant frustration that I read the wording used in the Bill, which, from my perspective, undermines the work we did to end child detention and put in place in the Home Office a practice of considering the best interests of children. More to the point, it runs contrary to existing law. At worst it is unlawful, at best it is deeply and profoundly confusing.
We also seem to have a notion of the public interest that does not include children. We seem to have a narrow view of the public interest and to take a very right-wing perspective on it. I want to offer a slightly different view, which includes the best interests of children. I want to live in a society in which we are more sympathetic and in which we consider the rights of families as a matter of course and that is what my amendment 58 seeks to bring about.
Amendments 2 to 5 seek to try to correct the rather confused position in clause 14. If the Secretary of State must give her views about what is in the public interest, it must include children and must be in accordance with the UN convention on the rights of the child, which we have signed up to. Much of yesterday’s debate centred on the plight of children and it seems to me that such children in the UK would be aversely affected by the provisions in the Bill. An unaccompanied migrant who