I am grateful to my hon. Friend for his helpful clarification. The problem is that deportation is part of the punishment. The logic of the argument of the Member for Brent Central is that if someone’s punishment had an effect on their children that led not to “manifest and overwhelming harm” but to either manifest harm or overwhelming harm, it would be fundamentally and in principle unfair on the children, so that part of the punishment should not be carried out. Surely, however, it might equally be said that someone’s imprisonment would have an effect of manifest but not “manifest and overwhelming” harm on the children. If such an argument was accepted, the whole criminal justice concept of punishing people who have committed offences would become extremely difficult. Deportation is therefore simply a reasonable part of the overall punishment for someone who commits a serious offence.
I listened with great interest to the debate about the status of new clause 15 in European and UK law. A principle that we should always state and restate in this House is that, by its very nature, Parliament cannot pass a law that is illegal. We can pass laws that contravene international obligations or that we may decide our diplomatic relations require us to remove or repeal, but Parliament cannot pass an illegal law.
That point is important to remember, because there is a tyranny of lawyers. They give people advice stating that they think x or y, but until it has been judged by a court, that is no more than advice, which may be right or wrong. If my right hon. Friend the Home Secretary has been advised by the Home Office lawyer that the new clause does not meet the requirements of the
European convention on human rights, that does not question the right of this House to pass it into law: it is our right to do so, and then to consider the judgment that may or may not be made by the European Court of Human Rights. That of course leaves open the question of whether the Home Secretary can sign the declaration that the Bill is compatible with the European convention on human rights. I am delighted that she is returning to her place as I say that.
My right hon. Friend has the right to go to another lawyer. When given legal advice that they do not like, many people see whether they can find one who gives different advice. Amazingly enough, when they pay a better lawyer, they sometimes get better advice. I hope that even in an era of austerity, Her Majesty’s Government may seek out some better lawyers who can give improved advice that is more in line with what my hon. Friend the Member for Esher and Walton said.
The question is therefore only one of incompatibility, not of legality. I hope that the Opposition Front Bench team will also think about that. Whether the new clause is accepted and passed into law is not fundamentally a legal decision, because the legal position is as yet unproved—it has not been tested in the courts—so it is a political decision or a political statement about what hon. Members on both sides of the House think is the right way to treat people from foreign countries who have committed serious crimes. I would take the political decision that it is right to expel them from this country, and that it would be wrong to do so only if extraordinary factors meant that they ought to have the right to stay.