As always, the hon. Lady makes an excellent point, but it is a question about which bit of discretion would be taken away. The courts would retain discretion if there was a threat of harm or a threat to life and limb, as my hon. Friend the Member for Esher and Walton pointed out. Discretion would be circumscribed only in very specific cases relating to article 8, and that would be done because the courts appear to have made some quite eccentric decisions. What has really brought this to the attention of the British public is the huge backlog of deportations—4,000 people are apparently waiting to be deported—and the fact that a very high number of challenges are brought purely on the basis of article 8 rights, which cannot therefore involve people in fear of torture or of harm to life and limb. I do not think that anybody in the House wants to deport people at risk to life and limb. As a nation, we believe in offering refugee status to people genuinely at threat, but we are not in favour of the exaggeration of spurious rights.
As I have said, the decision is a political decision, not a legal one. It is for this House to make a political choice about how our criminal justice system works,
what rights belong to people who have committed very serious crimes and how far such rights should go. If it became a legal decision—if it were taken to the courts—we would find out at a later stage whether the European Court of Human Rights thought it was compatible with the convention. The House would then make a second choice, which would be whether to maintain today’s political decision or reverse it to be compatible with the convention. That is not the choice before us today. This is a routine exercise of parliamentary sovereignty in adding to a Bill a provision that may become law and be justiciable at a later stage.
I know that a lot of other Members want to speak, so I will be brief on new clause 18. I have some concerns about it. I am perhaps rather romantic in my view of what it means to be a British subject. I always though that Palmerston got it right on the Don Pacifico affair—the “Civis Romanus sum” principle. Once any one of us has a passport that says we are British, we are as British as anybody else, whether they were born here or got their passport five minutes ago. It is incredibly important that there is equality before the law for all Her Majesty’s subjects who are living in this country and have right of residence here.
I worry that if we give the Government the ability to take passports away from a certain category of British subject but not from others, it will create a potential unfairness and a second category of citizen. There are Members of the House who were born abroad and have been naturalised and, on occasion, they may vote against the Government, which I hope the Whips will not consider serious enough reason to remove their passport. The fundamental underlying principle of equality of all Her Majesty’s subjects is important. I am always nervous about giving the Executive relatively arbitrary powers, because they are the ones that can be most misused. Once a passport is in somebody’s hands, they ought to be no different from anybody else in any legal respect.
Crucially, there may well already be laws that could deal with the problem in another way. If people have committed an offence so serious, important and threatening to the life of the nation that their passport should be confiscated, surely they have committed some other crime for which they could be charged, dragged through the courts, perhaps found guilty by a jury and then sentenced accordingly, with the penalty handed down in the right and proper way and their rights and liberties as subjects being maintained. They may have committed treason if they have done something so serious that they are to have their passport removed from them.
I will not oppose the new clause, but I wished to raise those concerns. I understand that the approach has been agreed because it will not affect many people. That is fine—I am glad it will not have widespread application—but what message does it send to the nation at large?