Joanna Cherry KC MP speaks against the Illegal Migration Bill - 27 March 2023

It is a pleasure to see you in the Chair, Dame Eleanor. It is convention to say that it is a pleasure to follow the previous speaker, but I find it hard to say that because I do not agree with anything that the right hon. Member for South Holland and The Deepings (Sir John Hayes) said. It is an extraordinary proposition to say that, to use his words, it is virtuous and just for the United Kingdom to pass legislation that is in breach of our international obligations. These are not obligations that have been imposed on us from above. They are obligations to which we freely signed up. If the Government and Conservative Members do not like the obligations to which they freely signed up, they should have the courage of their convictions and join their chums in Russia and Belarus as non-signatories to the European convention on human rights. [Interruption.] They do not like it, but it is true: those are the other two countries in Europe that cannot live with the obligations in the European convention on human rights. 

I want to make another preliminary point before I go any further. The right hon. Gentleman does not speak for my constituents—he does not speak for the people of Edinburgh South West. The contents of my mailbox and my conversations with constituents show that he does not speak for them. He does not speak for other voters in Scotland, either. We are proud of our international obligations, and we would like to remain a signatory to the European convention on human rights.

There is widespread concern about this Bill, and not just from lefty lawyers, to whom the hon. Member for Great Grimsby (Lia Nici) referred earlier. 

Lia Nici 

Will the hon. and learned Lady give way? 

No, I will not at this stage; I want to develop my point. I have been a lawyer for many years, and it pains me to say this—because I am a lefty lawyer Toggle showing location ofColumn 735—but if the hon. Lady knew much about the legal profession she would know that most lawyers are actually not lefties. However, what most lawyers do have, in contrast to the Conservative Members who have spoken so far today, is respect for the rule of law and for legal obligations freely entered into. Nobody took the hand of the United Kingdom and forced it to sign the convention. We did so freely, of our own volition. I repeat that, if Conservative Members do not like the obligations any longer, because they occasionally throw up results they do not like, they should have the courage of their convictions and leave the convention. 

Lia Nici 

Will the hon. and learned Lady give way? 

I want to develop my point. I will take interventions in a moment. I do not want to take up too much time. 

I rise to speak mainly to amendment 122, which is in my name, and to support the amendments tabled on behalf of the Scottish National party by my hon. Friend the Member for Glasgow Central (Alison Thewliss). I also add my support to the excellent and forensic points made, as always, by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald). It is a great pity that the Minister chose to take no notes while my hon. Friend was speaking, because he made some very good points and it would be really nice to hear why the Government disagree with them. At the end of six hours of debate, it is going to be difficult for the Minister to answer those points, given that he paid no attention to them and did not make any notes.

I tabled amendment 122 in my capacity as Chair of the Joint Committee on Human Rights, and I am very grateful to those hon. Members who have lent their support to it. I am not going to press it, because the Committee has only just commenced its legal scrutiny of this Bill. That is not because we are dragging our feet, but because the Bill has been bounced on us at such short notice. We have very little time to undertake that scrutiny, but we hope to report before the Bill has finished its passage through the Lords. At that point, I hope we will be able to recommend some detailed amendments.

Amendment 122 is a probing amendment that gives me the opportunity to explain to the Government the legal basis of our obligations to obey the interim measures of the European Court of Human Rights, because an awful lot of what we in Scotland call mince—which is a technical legal term—has been spoken about that so far. 

As a preliminary point, I also want to stress the widespread opposition to this Bill. Our own Equalities and Human Rights Commission, the Scottish Human Rights Commission and the Council of Europe all have severe concerns about this Bill’s impact on our international legal obligations. The UNHCR also has severe concerns about it, as have the Law Society of England and Wales, the Law Society of Scotland, many other very respectable civil society organisations and many of our constituents.

Over the weekend, I received a number of letters from primary 7 pupils at Oxgangs Primary School in my constituency of Edinburgh South West. The gist of their letters was that we are a wealthy nation—the hon. Member for Devizes (Danny Kruger), who is no longer in his place, referred to the United Kingdom as a wealthy Toggle showing location ofColumn 736country; it is not a country but a union of nations—and we need to do more to help refugees. As other hon. Members have said, the majority of displaced people in this world just go to the country next door. It is only a very tiny fraction who come to the United Kingdom, looking for our help. I think that what those young people were trying to say is that we have a moral obligation to them. I think they were also making the point that human rights are universal. The Government need to remember that. This Bill seeks to carve out certain categories of people to whom human rights will not be applicable in the same way as they are to me and my constituents. That is simply wrong.

The purpose of amendment 122, which relates to clause 49, is to ensure that we recognise that the United Kingdom is bound to comply with interim measures issued by the European Court of Human Rights, and that any regulations made under clause 49 do not undermine that principle. The amendment is consistent with the unanimous recommendations made by the Joint Committee on Human Rights when we reported on a similar provision in the Bill of Rights Bill. 

It is important to set out the legal basis on which the United Kingdom is bound to comply with those interim measures, and I will take a couple of minutes to do so. Under rule 39 of the rules of the European Court of Human Rights, the Court may indicate interim measures to any state party—not just the United Kingdom—that has freely signed up to the convention. They are usually sought in connection with immigration removal or extradition cases, and they amount to a requirement that the removal or extradition be suspended—not stopped—until the case has been fully examined. Case law from the Court has established that requests for interim measures are granted only exceptionally, when applicants would otherwise face a real risk of serious and irreversible harm. They are granted from time to time against the United Kingdom, but in fact that is very rarely the case. In 2021, the European Court of Human Rights received 1,020 requests from across the Council of Europe for interim measures and granted 625 of them. However, between 2019 and 2021, the interim measures under rule 39 were applied for in 880 cases against the UK, but granted in just seven of them. 

This rides a coach and horses through our freely entered into international legal obligations in respect of interim measures—it really is taking a hammer to crack a nut. Interim measures appear in the rules of the Court rather than in the convention itself, which has led some commentators—including some Conservative Members —to argue that the UK is not bound to comply with them. This is particularly the case because article 46 of the convention, which concerns the “Binding force and execution of judgments”, only commits the UK to abide by final judgments of the Court, and does not mention interim measures. 

However, the Grand Chamber of the Court has held that a failure to comply with interim measures amounts to a violation of article 34 of the convention under which the high contracting parties undertake “not to hinder in any way the effective exercise” of the right of applicants to bring their claims before the Court.

The Court itself has said that a failure to comply with interim measures is a breach of article 34 of the convention. We all know that the reason why the Government are so exercised about this issue is that interim measures were indicated by the European Court in relation to the Government’s attempts to remove asylum seekers to Rwanda, despite the domestic courts not granting an injunction. Clearly, that has caused severe concern in the Government, because the interim measures were issued without the United Kingdom having made submissions—without having a chance to be heard—and without a reasoned judgment.

If there are good faith and meaningful negotiations going on between the United Kingdom and the Council at the moment, I hope that it will be discussed whether, in future, there might be an opportunity for the UK to be heard before an interim measure is granted. Lawyers in the Chamber will know that, frequently, Governments and other big bodies that are often sued lodge with the courts in the English, Welsh and Scottish systems what is called a caveat, so that if anybody applies for an interim order against them, they get the right to be heard. I think that that would be a reasonable reform of the Strasbourg system. However, the mere absence of that provision at the moment would not justify our ignoring either the obligations or the convention that we have signed up to, as interpreted by the Court. Anyone in the Chamber who is used to dealing with litigation will know that interim measures—both interim injunctions in England and interim interdicts in Scotland—are frequently granted without the other party being heard, because they are interim measures to preserve the status quo while a lasting decision is made. 

If a person faces being removed from this country to Rwanda, having come here seeking sanctuary, an interim measure pending the full determination of the impact that it might have on them is actually rather important. For example, LGBT people were mentioned earlier by my hon. Friend the Member for Cumbernauld, Kilsyth and Kirkintilloch East. There are no anti-discrimination laws in Rwanda protecting same-sex attracted people or transgender people. They can be discriminated against, refused accommodation and refused a job on the basis of their sexuality or their gender identity. I think that we are all agreed that that is not acceptable. As my hon. Friend said, imagine the position of somebody fleeing the regime in Uganda, where even to state their sexuality or gender identity is now unlawful, coming here to seek sanctuary and then facing being deported to Rwanda. They might be very grateful for interim measures being granted while their human rights were fully explored. 

I will not press amendment 122, but it is important that we conduct ourselves in this Parliament on the basis of a proper understanding of the legal position, rather than populist slogans. 

I wish to say something about sovereignty. The hon. Member for Stone (Sir William Cash)—I am tempted to call him my hon. Friend—is an expert on the sovereignty of this Parliament. When he talks about sovereignty, he talks about a very distinctively English concept. The notion that Parliament has unlimited sovereignty is a distinctively English principle that really has no counterpart in Scottish constitutional law. 

Sir William Cash rose— 

I will give way in a moment. I just want to develop my point and then I will give way to the hon. Gentleman, because I know that we have been arguing about this for years. This is an important point to make. 

It is sometimes assumed that this Parliament just took on the character of the English constitution when it unified with the Scottish Parliament. Perhaps it is worth considering that there are other notions of sovereignty. In my country, the people are sovereign, not the Parliament, and they can choose to share their sovereignty with, for example, the Edinburgh Parliament, this Parliament and other international institutions. The endless obsessing about the sovereignty of Parliament is not particularly helpful. Where I really disagree with the hon. Gentleman is in this: I think that the Human Rights Act was an elegant solution to fulfilling our rights under the convention, while also respecting the sovereignty of this Parliament.

Sir William Cash 

I wish to reply to the hon. and learned Lady by saying that the sovereignty of the United Kingdom Parliament rests with the United Kingdom Parliament. I know that she would quite like to leave it, but, on the other hand, she is bound by it, and the European Union (Withdrawal Agreement) Act 2020 specifies quite clearly that the sovereignty is guaranteed.

The Union between Scotland and England was freely entered into. I know that some people are under the misapprehension that now it is some sort of “Hotel California” situation, where we can check out but cannot leave, but that is a fundamental misunderstanding of the nature of the Union. The views that I am expounding about sovereignty are not just my eccentric views, but the views that have been expounded by many well-respected Scottish jurists, as the hon. Gentleman knows. It is worthwhile sometimes to take a step back. With all due respect to some of my English friends, they get a bit hysterical about parliamentary sovereignty. Sovereignty can be shared and, ultimately, I believe that sovereignty lies with the people. I will just leave it at that.