HC Deb 02 December 1991 vol 200 cc30-5
Mr. Speaker

Before I call the Home Secretary, I should say that I understand that a notice of appeal has now been lodged but that I propose to exercise my discretion in respect of the sub judice rule to allow questions covering the Home Secretary's statement.

3.57 pm
The Secretary of State for the Home Department (Mr. Kenneth Baker)

rose—

Hon. Members

Resign.

Mr. Speaker

Order.

Mr. Baker

The House will know that, on Friday, my action in the case of the deportation of a Zairean national was subject to a judgment by the Court of Appeal. I have now had the opportunity to study that judgment and I have taken further legal advice. The court gave me leave to appeal. I have decided that an appeal to the House of Lords should be lodged, and this has been done.

I have placed a copy of the judgment, together with the earlier judgment of Mr. Justice Simon Brown, in the Library of the House of Commons. The issue centres upon the response to an order made by Mr. Justice Garland in the early hours of 2 May and the consideration that I gave to that order at a meeting at 4 pm on the same day. I was, of course, advised throughout not only by Home Office lawyers but also by Treasury Counsel.

As this matter will be central to the proceedings in the House of Lords, the House will recognise that I can say no more about it.

As the Master of the Rolls has acknowledged, this case raises issues of constitutional importance, issues which go far beyond the facts of the case which gives rise to them. The question posed by the judgment of the majority of the Court of Appeal is whether Ministers of the Crown and civil Servants, acting in the course of their duties, can be separated from the Crown itself.

I should like to make it clear to the House that I accept full responsibility for the actions taken in this case by officials of the Home Office and by my hon. Friend the Parliamentary Under-Secretary, who dealt with it. I was involved in the case at a late stage, and that is the subject of the court's findings.

On any view that may be taken, this case breaks new ground of great constitutional importance. Every Minister acts, and must act, under the rule of law. The only comment I wish to make at this stage is that the court recognised that I had no intention to act in defiance of an order of the court or to hold myself above the law.

Mr. Roy Hattersley (Birmingham, Sparkbrook)

rose—

Mr. Dennis Skinner (Bolsover)

Where is the honour?

Mr. Speaker

Order. I ask the hon. Member for Bolsover (Mr. Skinner) to sit down.

Mr. Hattersley

Is the Home Secretary aware that, by purporting to describe his motives in persisting with the deportation order despite the instructions of the court, he is contributing to a debate which he described as sub judice? Will he understand that had he wished, as his statement claimed, to remain within the law, his proper course would have been to accept the court's ruling and then appeal, not to flout the court's judgment? He claims that he had no intention of acting in defiance of the court order. That is exactly what he did. He also broke an undertaking which had been given to the court in his name.

Will the Home Secretary confirm that, aside from the point of law to which he draws our attention and which will soon become sub judice, the judgment described Home Office procedures as reflecting no credit on the Home Secretary, and called the treatment of that asylum seeker a disgrace. Does he understand that, while he may postpone or prevent debate on such matters in the House, outside he will be called upon to justify his incompetence?

Finally, the Home Secretary will recall that, at the time of the Brixton escape fiasco, he claimed that no blame attached to him because he had not been consulted. In the case of the wrongful deportation of any asylum seeker, he admitted that he was consulted, but he hides behind the excuse that he did no more than accept civil servants' advice. Are there any circumstances in which the Home Secretary would feel it right to take the honourable course and resign from the office which he discharges so inadequately?

Mr. Baker

Once again, the right hon. Gentleman mistakes the constitutional wood for the political trees. He has sought to make a political attack on me, and I shall reply in the same way because the right hon. Gentleman has been highly selective in his summary of the case.

I remind him that the applicant arrived in the United Kingdom on 23 September 1990 on a flight from Lagos, Nigeria, using a false passport, and claimed that he would be persecuted in Zaire—[Interruption.]

Mr. Speaker

Order. The Home Secretary should bear in mind the fact that this case is sub judice.

Mr. Baker

Could I say that the actual issues that go to the House of Lords do not relate to the earlier events to which the right hon. Gentleman has referred.

I wish to come to the point that the right hon. Gentleman raised specifically about my role in this matter. I remind him that the applicant was interviewed three times, on 24 September, 2 December and 17 December, and was given every opportunity to present his case. The case for asylum was turned down, as the right hon. Gentleman knows, and there were three applications for leave to move for judicial review. Three hearings took place, two of them on the afternoon of 1 May.

Could I now come to the events of which the right hon. Gentleman accused me—namely, my involvement on 2 May? In the various judgments that have been made in the High Court by Mr. Justice Brown, no contempt was found against officials or my hon. Friend for what is called phase 1 and phase 2. I was involved because an order had been made in the early hours of 2 May. I was advised by my legal advisers in the Department, and subsequently by first Treasury counsel, that that order was beyond the power of the court, and I was given leave to apply for it to be varied or discharged. I asked for that to be done at the earliest opportunity, the following morning at 9 o'clock. When the court met, that order was withdrawn.

That is the issue that will go to the House of Lords. As I said, it is an important issue, because it involves a decision which I took. I do not shirk any responsibility in this matter, nor do I shirk any responsibility for the actions taken by my officials or for the way in which the Parliamentary Under-Secretary handled the case.

Mr. Ivan Lawrence (Burton)

Will my right hon. Friend accept that no hon. Member on this side of the House and, if they can leave aside party politicking for a moment, no hon. Member on the Opposition Benches, would believe that my right hon. Friend was capable of flouting the law —[Interruption.]—as has been suggested, either in his personal capacity, or, still less, as a holder of one of the great offices of State?

Is it not a fact that this is now an area of very important constitutional dispute, that my right hon. Friend accepted the advice of senior Treasury counsel, that two judges have spoken in his favour and two against, and that the House of Lords may find that he was right and they were wrong? Is it not also a fact that in this case it is clear that, if the Court of Appeal believes that he had no intention of flouting a court order and of putting himself above the law, that should be good enough for the rest of us?

Mr. Baker

I thank my hon. and learned Friend for those comments, and I quote from the judgment of the Court of Appeal—[Interruption.] I could read the whole of it if I am asked to do so. On the question of the rule of law and observance of the rule of law—this is a very important matter; Ministers are subject to the laws of the land and to enforcing the rule of law—the Master of the Rolls said: He"— that is, the Home Secretary— has disavowed any intention to act in defiance of an order of the court or to hold himself above the law. That is a disavowal which I fully accept.

Mr. Robert Maclennan Caithness and Sutherland)

Does the Home Secretary accept that, in his high office, he is the prime protector of the liberties of the subject and upholder of the rule of law, and that his position has been fatally compromised by his unwillingness to carry out the order of the court and to ask questions about it subsequently? Is he aware that, by persisting in the claim that he was not bound by the order of the court, he is compounding his offence?

Mr. Baker

I wish that the hon. Gentleman had made himself familiar with the two judgments in the case—those of Mr. Justice Simon Brown and of the Master of the Rolls. If he had, he would know that what he has said is not right.

Sir John Wheeler (Westminster, North)

My right hon. Friend rightly accepts responsibility for what happens in the Home Office. Is it not a fact that everyone in the Home Office associated with this case has been properly advised by qualified lawyers, that the facts that my right hon. Friend had produced to the House today are not in dispute and that the issue is one of constitutional importance only?

Mr. Baker

As I said, I think that this issue is of very considerable constitutional importance, because the effect of the judgment is to separate the activities of a Minister acting under his own name from those carried out while acting as a Minister of the Crown. That has considerable implications for the conduct of affairs. It is certainly at variance with the constitutional practice—

Mr. Alex Carlile (Montgomery)

Oh?

Mr. Baker

The hon. and learned Gentleman has his own view, but I think that, as a lawyer, he will agree that it is at variance with the constitutional practice that has operated hitherto. It certainly cannot be limited just to matters of contempt but must relate to the other coercive jurisdictions of the court. This is a matter of major constitutional importance which will have to be looked at by the House of Lords and no doubt considered by this place in due course.

Mr. Jeremy Corbyn (Islington, North)

Is the Home Secretary aware that his decision of 2 May put that Zairean teacher in an extremely dangerous and vulnerable position, and that it is not the first time that his Department has deported people in the face of a court decision that they should remain in this country? Does he agree that it is now essential that he withdraw the Asylum Bill now under consideration and instead institute a proper system of legal appeal that gives automatic rights of appeal to political asylum seekers and does not leave them at the mercy of his erroneous decisions?

Mr. Baker

In the consideration given to that case, the most scrupulous care was taken of the safety of the Zairean. Right at the last minute, before the final Court of Appeal hearing on 1 May, evidence alleging torture was adduced. It was looked at by my hon. Friend the Under-Secretary of State and was available to the Court of Appeal when the appeal was turned down. As for the safety of the Zairean, I was glad to see that, in his judgment, Mr. Justice Brown said: However, it is at least now clear that no irreversible damage has resulted from his removal on lst/2nd May"— as he has been in touch with his solicitors both from Zaire and Nigeria since then.

I certainly will not withdraw the Asylum Bill. Indeed, such legislation would have helped in a case like that, because the asylum seeker concerned sought asylum at the port of entry. The Bill gives asylum seekers in that position the right—it did not exist when the case was before the court—to appeal to an independent adjudicator.

Sir George Gardiner (Reigate)

Does my right hon. Friend accept that he has considerable sympathy on this side of the House and in the country, especially as there is now some doubt about whether the judge had the power to make the order that he made?

Mr. Baker

I would be treading a little widely in the direction of sub judice if I were to answer that, because any decision is for the jurisdiction of the court. All that I can say is that the judges who have considered the matter so far are divided.

Mr. Alex Salmond (Banff and Buchan)

Although I accept that the Home Secretary will not resign at this stage, does he accept that, when that case is combined with prisoner escapes and Sunday trading, his credentials as a law and order Minister begin to look a little threadbare?

Mr. Baker

That raises very different questions. The Attorney-General and the Minister of State, my right hon. Friend the Member for Mitcham and Morden (Mrs. Rumbold), made statements on Sunday trading, whereas I have made a statement on the interpretation of last Friday's judgment.

Mr. David Sumberg (Bury, South)

Is not the hypocrisy and confusion in the Opposition ranks shown by the fact that, when that judgment was announced, the legal affairs spokesman for the Opposition was immediately in the media demanding my right hon. Friend's resignation, while the shadow Home Secretary was demanding that he remain. After a weekend's contemplation, the shadow Home Secretary now says that my right hon. Friend should resign. Does my right hon. Friend agree that the case breaks new ground, that he acted at all times on legal advice and that wise counsel should permit the case to go before the House of Lords rather than rush to judgment now?

Mr. Baker

I am grateful to my hon. Friend. The right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) is entitled to change his view, as he does from time to time. The view that he changes is not usually very considered and, from his short statement, he has clearly not studied in depth either of the judgments that we are discussing today. I hope that he now applies himself to them, because he has not applied himself to the rest of his portfolio.

Mr. Andrew Faulds (Warley, East)

Is not the right hon. Gentleman's attitude to this judgment typical of the decline in standards of political integrity over the 11 years of the regime of the right hon. Member for Finchley (Mrs. Thatcher)? Is not it particularly typical of the tacky conduct of the Home Secretary in every office that he has held?

Mr. Baker

I had not appreciated the fact that my right hon. Friend the Member for Finchley had been involved in the matter; as far as I know, she has not. I know perfectly well what responsibilities I have for the Home Office and for the actions of Home Office officials and the Minister who handled the case, and I know my own responsibility in this matter. If the hon. Gentleman would do me the service of going to the Library and reading the judgments, he would find that in the earlier proceedings, neither the Home Office nor my hon. Friend were held in contempt for the actions that were taken on 1 and 2 May.

Mr. Patrick Ground (Feltham and Heston)

Is it correct that the majority decision of the Court of Appeal said that the present order was irregular and should not have been made, and accepted that my right hon. Friend acted on legal advice to that effect? In such circumstances, is it not absurd for Opposition Members to talk about resignation?

Mr. Baker

I am grateful to my hon. and learned Friend, because that is exactly what the judgment says. I must in no way criticise the judgment or make any comment upon it, because this is material to the House of Lords. I note what my hon. and learned Friend has said on the basis that the order was irregular. None the less, a constitutional issue was raised on separating the function of the Minister acting personally from the Minister acting as a Minister of the Crown. That has considerable constitutional implications.

Mr. Keith Vaz (Leicester, East)

Of course the Home Secretary has criticised the judgment of the Court of Appeal, and I deplore the attempts to rubbish the decision taken by three senior judges. As Home Secretary, the right hon. Gentleman has awesome power in immigration cases.

As resignation is an issue, if he is not prepared to resign at this stage, will he resign if the House of Lords dismisses his appeal?

Mr. Baker

One should see what the House of Lords makes of this case. It will be an important matter. I know perfectly well my responsibilities for the Home Office and for the decisions that have been taken on my behalf. [HON. MEMBERS: "Blaming others."] I am not blaming anybody. The decision taken on 2 May was mine, and I make it absolutely clear that I will answer for that decision. It was taken with the fullest advice from Home Office lawyers and from first Treasury counsel, which is exactly how Ministers operate on these occasions.

Mr. John Watts (Slough)

Has my right hon. Friend had the opportunity to reflect upon the bogus indignation of Opposition Front Bench Members in respect of the allegation that he failed to observe an irregular order of the court, and to contrast it with the deafening silence from that same Front Bench in the face of an assertion by an Opposition Member that, if he had information about the identity of the murderer of a police officer, he would withhold it from the police?

Mr. Baker

I will say only that I thought that that was a disgraceful statement by an hon. Member. I hope that the right hon. Member for Sparkbrook will dissociate himself from that statement and condemn the Member who made it.

Mr. Skinner

rose—

Mr. Bob Cryer (Bradford, South)

rose—

Mr. Speaker

Order. On this matter, I call Mr. Hattersley.

Mr. Skinner

Have you had your eyes tested recently?

Hon. Members

Order!

Mr. Speaker

Fortunately, I do not hear everything. The two hon. Members, who just rose, have made so many comments, not necessarily sedentary comments, that I do not intend to call them

Mr. Hattersley

The Home Secretary will recall that, in answer to my original question, before you, Mr. Speaker, reminded him of the sub judice rule, he began to explain his opinion that M, the man at the centre of this case, was not a genuine asylum seeker. Will the Home Secretary confirm that, on page 16 of the judgment, the Master of the Rolls says: Whether M was a genuine asylum seeker is irrelevant"? The serious error of judgment made by the Home Secretary concerns his dealings with the court, not the evidence that he claimed to put before the House.

Mr. Baker

I do not disguise from the right hon. Gentleman or the House the fact that the matter on which I was found to be in contempt was the decision taken on 2 May. The position that I put to the House and the right hon. Gentleman, that the decision about whether this Zairean national was an asylum seeker was heard twice before a court of law and by the Court of Appeal, which was presided over by Lord Justice Donaldson on the very afternoon on which the decision was taken.