Property (Digital Assets etc) Bill

Baroness Bennett of Manor Castle Excerpts

Second reading committee
Wednesday 6th November 2024 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise as the only female speaker in this debate, noting that, should we see a restructuring of your Lordships’ House in future, we might create some space for some female Members with interests in this area. I thank the Minister for a clear introduction to the Bill. It is not my intention in this speech to debate the legal detail or indeed to oppose the Bill, but I shall reflect on how the Government and other noble Lords have suggested the Bill will be used and its potential impact. I guess you could sum up this speech as one that sends a strong note of caution.

I agree with the noble Lord, Lord Holmes of Richmond, that it is up to us how we deploy the powers in the Bill. That means it is a matter of choice. Like the noble Lord, Lord Vaizey, I noted the broader international political context in which we debate today, although my perspective is rather different to his. I note that Susie Dent, the lexicographer, declared that the word for today is “recrudescence”, which means the recurrence of an undesirable condition. That is an appropriate term for the context we speak in today. It is also relevant to some of the points I wish to make, which fall into three main areas: the relationship between the kind of goods we are talking about here and corruption and fraud; the situation in the UK economy, where we have too much finance already; and the environmental impacts of cryptocurrencies, other digital resources and the things we are talking about here.

Since we are in Committee, I am reminded of a quote from the noble Lord, Lord Evans. He was then the chair of the Committee on Standards in Public Life, although speaking in a private capacity in a debate on corruption secured by my noble friend Lady Jones of Moulsecoomb. Referring to the most recent decade or two, he said that

“we have clearly, as a matter of policy, turned a blind eye to the perpetrators of corruption overseas using London for business or leisure purposes”.—[Official Report, 13/10/22; col. GC 156.]

If we look around the world at what cryptocurrency is associated with, we see that it opens up entirely new and lucrative avenues for scammers, terrorists, plutocrats, oligarchs and dictators. They have been using it. There is the well-known case of Sam Bankman-Fried from the exchange FTX in the US. Indeed, the most recent figures from the FBI, from September, show that, in the US alone, consumers have lost more than $5.6 billion through cryptocurrency-related fraud—a 45% jump from 2022. I note that, here in the UK, our officials—after a difficult, complex and no doubt expensive investigation—seized £3 billion-worth of bitcoin in April. The Chinese apparent owners of that bitcoin are now seeking to get it back. Think about the costs: they are very much starting to add up here.

I have to contrast that with the Government’s press release dated 11 September, which says that Britain wants to

“maintains its pole position in the emerging global crypto race”

and

“maintain its position as a global leader in cryptoassets”.

We are already a leader in global corruption and fraud. How much do we want to magnify that leadership?

Following on from the comments of the noble Lord, Lord Vaizey, I note that this is very much an equalities issue, too. I am sure that many noble Lords have seen the no doubt expensive and high-profile advertising campaigns for cryptocurrencies. They clearly target young, minoritised communities that are suspicious —with good reason—of the traditional financial sector, with its association with colonialism and slavery, but are at risk of being exploited by a new Wild West of finance.

I come to my second point, which is about having too much finance. I shall quote a study; I have quoted it before, in your Lordships’ House, but it is worth going back to it. Back in 2018, the Sheffield Political Economy Research Institute concluded that the UK had lost £4.5 trillion over two decades because of its oversized financial sector. We are taking scarce human resources—people with PhDs in maths and physics—and letting them go into sectors of corruption that crash and cost us all a great deal of money. The SPERI researchers concluded that, in the 30 years following Margaret Thatcher’s deregulation of the City, financial workers were overpaid by around £280 billion compared to people from similar financial educational backgrounds in other jobs, and financial services reaped £400 billion in excess profits.

Noble Lords may think, “Well, that is not in my political frame”. I point them to yesterday’s article from Martin Wolf in the Financial Times, headlined “More muddling through won’t deliver the growth Britain craves”. In it, Wolf says that

“pre-crisis GDP and GDP growth were either exaggerated, or unsustainable, or both”.

He suggests that a big source of that unsustainability is

“that the pre-2008 global financial bubble, from which the UK, home to a leading financial hub, benefited, also distorted GDP. It not only exaggerated the sustainable size of the financial sector, but also exaggerated the sustainable size of a whole host of ancillary activities”.

Let us think carefully about future bubbles.

My third point picks up a point made by the noble Lord, Lord Holmes of Richmond, about the environmental impact of the digital sector, which has been of increasing concern in the past year. Last year, United Nations scientists evaluated the environmental impacts of just one—although probably the biggest—cryptocurrency: bitcoin. They looked at the activity of 76 bitcoin-mining nations from 2020 to 2021; the study was published in the journal Earth’s Future. If bitcoin were a country, its energy consumption would have ranked 27th in the world, consuming 173.42 terawatt hours of electricity; that is about the equivalent of Pakistan’s consumption, with its population of 230 million people.

Energy footprint is just one aspect of this. The water footprint over a similar time was enough to have filled 660,000 Olympic-sized swimming pools, which would meet the current domestic water needs of more than 300 million people in rural sub-Saharan Africa. The land-mining footprint of bitcoin activities was 1.4 times larger than the area of Los Angeles. We are talking about growing this and seeing how far we can make it go. What can the planet bear?

Those are my three main points but I have a couple of final questions, or comments, to put to the Minister. There has been some discussion about non-fungible tokens. Thinking about the way in which, through Brexit, a loss of government funding et cetera, our artists have been scrabbling around and struggling for financial income, securing non-fungible tokens might be a good thing in the art world. That would be something small to celebrate.

In his introduction, the Minister talked about virtual carbon credits being covered by the Bill. We know that carbon offsetting has been an area of massive fraud and corruption—an absolute failure of governance. Might the Minister, either in summing up or in a letter to me, be able to reflect on how the Government will deploy the Bill to ensure that that is not the situation?

I shall come to a slightly more abstract area of consideration, then a concrete one. Taking the abstract first, digital spaces are now where many of us meet, gather, communicate, conduct politics and conduct democracy. They are in some ways a new kind of Commons, if we think about the Commons as a public space where people gather on the street. Again, I shall understand if the Minister would prefer to write, but I ask him to reflect on how this might affect the public use of digital spaces or digital knowledge.

I finish with this concrete question: how does the Bill interact with the decision taken at the COP 16 biodiversity talks to introduce a multilateral mechanism, including a global fund, in order to share the benefits from the use of digital sequence information on genetic resources—known as DSI—more fairly and accurately? It aims to share the benefits with the global South, indigenous people and local communities, and is known as the Cali fund. How will the Bill interact with it?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I am grateful to those noble Lords who contributed to today’s debate. All of them will, I hope, acknowledge the expertise in the Room. Committee stage is likely to be very expert as well; I look forward to it.

I am keen to emphasise, as the noble Lords, Lord Clement-Jones and Lord Sandhurst, did, the great deal of work that has gone into the Bill: from the Law Commission, which produced an excellent report and followed that up with a consultation on the proposed Bill, and from the practitioners, businesses, academics and organisations that engaged with the process throughout. I give my thanks to all who were involved in that work.

The result of those efforts is a simple but elegant Bill. As has been said, most notably by the noble and learned Lord, Lord Thomas, it will support our efforts to remain a pre-eminent jurisdiction, with English and Welsh law the global law of choice, and it will signal that the UK is a leader in innovation and technology. As our society evolves, so too must our laws. The Bill is just one of the ways in which we are modernising our legal framework. I will endeavour to address some of the points made by noble Lords. If I miss any points in particular, I will of course write to noble Lords.

First, the noble Lord, Lord Holmes, asked a number of questions, and I will have a go at answering them— I recognise his expertise in this matter. The first question was on whether the Government are sure that the current categorisation is not exhaustive and unable to accommodate existing digital assets. The Law Commission considered this option as part of its extensive and detailed report. It acknowledged that it would be possible to recognise crypto tokens as falling within an expanded category of things in action—that is, to treat “things in action” as a catch-all category for all personal property that is not capable of possession. However, crypto tokens and similar assets are fundamentally different from other things in action, which can only be claimed or enforced through a court action. For example, unlike debt they can be stolen, which in some ways makes them more like things in possession despite them not being physical objects.

Digital assets could not have been conceived when the original categories of personal property were developed and so it is no wonder that these do not fit neatly into either category. The commission, and most of its consultees, concluded that it would be better for the law to recognise that this unique combination of features means that they belong to a different category. That is why we chose the third category option, which is promoted in the Bill.

The second point the noble Lord, Lord Holmes, made, was on the implications for our courts. One of the great strengths of the common law is its ability to evolve. We are, however, dependent on the right cases being brought to the precedent-setting courts. While we could have left the law to develop, there is no guarantee of if or when this would happen, and in the meantime the uncertainty would remain about whether digital assets could be treated as personal property. The underlying point of the Bill is to put into statute the way that the common law was developing in any case, and to allow the common law to continue to develop once this particular bit of legislation is in place. To that end, the Government took the decision to legislate to give the market confidence and clarity in English and Welsh law. It also provides a strong indication to the courts that Parliament then intends to develop common law and that there is a further category of personal property that some digital assets can fall within.

The third question the noble Lord, Lord Holmes, asked, was on what this means for the common-law community. The Bill does not put the law of England and Wales at odds with other common-law countries. Courts in New Zealand and Singapore have considered that crypto assets are capable of attracting property rights and question the appropriateness of there being only two categories of personal property. The Bill is consistent with further international legal developments —for example, the US, New Zealand, Singapore and the Dubai International Finance Centre have recognised crypto tokens as property, and the latter has recognised them as specifically belonging to a new category of personal property.

The noble Lord, Lord Holmes, asked about Scotland. Scotland’s law of personal property is distinct and does not share concepts of things in action or things in possession, so any legislative intervention in this area would have to be slightly different. I understand that the Scottish Government recently appointed an expert reference group to consider how Scots private law may best accommodate digital assets. It will be interesting to see how its work develops in this area. No noble Lord raised Northern Ireland, but the Bill could be extended to include Northern Ireland, subject to a legislative consent Motion at the Northern Ireland Assembly’s request.

The noble Lord, Lord Vaizey, spoke about the importance of the financial regulation of crypto assets. The Bill supports and complements the work of the Treasury and the Financial Conduct Authority, which are currently working on appropriate financial regulation of crypto assets.

The noble Baroness, Lady Bennett, asked what impact the Bill will have on things such as illegal transactions, fraud and tax avoidance. I recognise her points, and the answer is that the Bill deals only with a specific issue of personal property law. Illegal transactions, fraud and tax avoidance are properly dealt with by other statutes and initiatives.

The noble Baroness spoke about the environmental impact of crypto in a wider sense, and my noble friend Lord Stansgate also made that point. Of course, the Bill does not have a direct environmental impact, as it does not mandate for an increase in the use of crypto tokens or other digital assets—digital assets will continue to be used and created regardless of the Bill. Rather, the Bill is about clarifying the legal status of digital assets that already exist when a dispute has arisen. The Bill will help keep the courts of England and Wales as a leading place to mitigate these disputes.

However, I agree that environmental issues are important. This falls to a much wider discussion on things such as improving energy efficiency and adoptable sustainable power sources, and that is best addressed by other statutes and initiatives. Conversely, it is possible that the Bill could bring positive environmental benefits by enabling innovative green finance for particular projects and things. Nevertheless, I take the noble Baroness’s point.

My noble friend Lord Stansgate asked a number of questions. The first was: is the panel on the legal concept of control proceeding? I am happy to confirm that the UK Jurisdiction Taskforce, an expert group chaired by the Master of the Rolls, is taking forward this work, as a body that already has an internationally credible voice in the intersection of law and technology. In fact, I met Sir Geoffrey Vos last week, and we spoke about that very point.

Secondly, my noble friend asked whether the Bill would help in the division of matrimonial property on divorce—the noble Lord, Lord Meston, made this point as well. I am pleased to say that the Bill will help courts to say with confidence, in divorce cases, that crypto assets are matrimonial property. This is also a case for crypto assets on death.

The third question my noble friend raised was: will the Bill help people access the iPhone photos, for example, of deceased relatives? The situation for other digital assets, such as digital photos, is not addressed by the Bill, as the assets are not personal property. So it will not address that point as such, but it will be for the common law to develop the answers to those sorts of questions.

The noble Lord, Lord Freyberg, in a thoughtful speech of which he gave me good notice—I thank him for that—raised the impact of NFTs on the traditional art market. As he rightly said, there are many different aspects to this, and many uses for digital assets, giving rise to different legal, practical and other issues. This Bill does not purport to deal with all the issues that arise; that would be a very different and hugely extensive Bill. This Bill deals with a discrete issue of personal property law; it does not relate to the existing statutory framework of copyright law, artists’ resale rights or consumer protection law. Those areas of law raise different policy issues and need to be considered separately. I recognise the important work done by the CMS Select Committee on issues such as copyright infringement, and other bodies such as the Financial Conduct Authority on issues of consumer misinformation about crypto. These issues are too varied and complex to be brought within the present Bill, which is deliberately limited in scope.

On the noble Lord’s comments relating to AI, the Government believe in both human-centred creativity and the potential of AI to open up new creative frontiers. The AI and creative sectors are both essential to our mission to grow the UK economy. However, this is an area which requires thoughtful engagement. I understand that the Intellectual Property Office, the Department for Science, Innovation and Technology and the Department for Culture, Media and Sport are working closely with a range of stakeholders, including artists, on issues related to AI, copyright and IP. This includes holding round tables with AI developers and representatives from the creative industries.

I thank the noble Lord, Lord Clement-Jones, for his broad support for the Bill, although he asked whether this should be left to the common law. The idea is that this Bill will enable the common law to continue developing in this field. There will be new technologies, including things that perhaps we have not even thought about in this debate. The law of personal property is an area which has traditionally been developed through common law. If the noble Lord wishes to pursue the issue, we could develop it in Committee.

[Baroness Bennett of Manor Castle (GP)]

Will the Minister write to me about the issue I raised from COP 16 about digital sequence information on genetic resources, and the broader point about digital commons?

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I will be happy to write to the noble Baroness.

UK-US Co-operation on Using Atomic Energy for Mutual Defence

Baroness Bennett of Manor Castle Excerpts

Wednesday 23rd October 2024 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Howell of Guildford. I agree very much with his introductory remarks about the huge democratic deficit represented by the CRaG process—remarks echoed by most noble Lords taking part in this debate. Democracy? It would be a good idea; I hope most people would agree. I also agree very much with his concluding remarks that we are in a new world and we need new approaches. What we have before us looks very much like something out of the 20th century, rather than being fit for the 21st.

I thank the noble and learned Lord, Lord Goldsmith, and the International Agreements Committee, for their hard and rapid work in preparing the report, securing this debate and introducing it so clearly.

I note that the scrutiny period for the MDA ends on 23 October, which is today, and, for the AUKUS agreement, on 29 October. I might use a hashtag that I use frequently on social media: #NoWayToRunACountry. It would be nice to have more space and time for discussion and thought.

As the noble and learned Lord, Lord Goldsmith, set out, this debate occurs as the UK prepares to spend, and is spending, an enormous amount of money on new nuclear weapons. I must put on the record the Green Party’s opposition to the huge expense and risks of the Trident replacement programme in a geopolitical environment in which the majority of the world’s countries have backed the UN treaty for a global ban on nuclear weapons. I also note the related context in which the cost of the nuclear clean-up at Sellafield has spiralled to £136 billion, about which the National Audit Office has today expressed great concern. This is on a site where there have been very serious cybersecurity concerns and on which we have yet to find any kind of long-term solution for the storage of nuclear waste.

However, I will focus in particular on the AUKUS agreement, in part because the perspective of the Green Party of England and Wales lines up very much with that of the Australian Greens. We bring a different and widely supported voice to the debate in both our nations. Both our parties are opposed to the agreement, and that gives me the opportunity to draw the Committee’s attention to some important points that should, I respectfully suggest, give the Government and all parties pause.

I note by way of background that, in 2022, the Australian Greens had by far their best ever federal election result, labelled a “greenslide” by the leader, Adam Bandt. It saw the election of the first three Green MPs in Brisbane and a significant increase in Senate numbers, and state-elected representation has continued to grow since then. We are in a time of considerable political change in the UK, the US and around the world.

I also note, as I have previously noted to this committee, that two former Australian Prime Ministers and one former Australian Foreign Minister, who are not Greens, have all opposed the AUKUS deal.

I will begin with a longue-durée view and look over more than a century of Australian and UK military co-operation, which has been marked often by strong, even slavish, support for UK and US actions from the top of the Australian Government, although that has not always been backed by, or first checked with, the Australian public.

My speech might be taken as a balance and contrast to that of the noble Lord, Lord Hannan, not for the first time. First, I refer to the First World War. ANZAC Day on 25 April now marks the contribution of all those who have served militarily in Australia, but was initially founded very much around trying to get more people to sign up to the war, as historian Martin Crotty said, between 1916 and 1918, after the British-led military disaster of Gallipoli that claimed so many young lives, The Prime Minister of Australia, Billy Hughes, tried twice to extend service for conscripts outside Australian shores to feed more lives into the horrors of the trenches. When the flow of volunteers dried up, twice, the Australian public said no, and I note in passing that the Australian Labor Party subsequently split.

On 3 September 1939, Prime Minister Robert Menzies told the Australian people that they were at war with Nazi Germany. That came just an hour after Britain had declared war. While there is no doubt that the Australian public was, and remained, behind the Government, there was considerable concern and doubt, as there had been in the then dominions of Canada and South Africa, about the Australian Prime Minister’s assumption of automaticity. The slavish abandonment of any idea of Australian sovereignty has echoes which I will come back to.

Without doing a detailed trawl through Australian history, I will just stop briefly at the Vietnam war moratorium protests, the first of which took place on the 8 May 1970. These were then the largest public demonstrations in Australia’s history and represented growing resistance from a significant number of Australians to the Government’s commitment to the Vietnam War in general and conscription in particular. On 16 February 2003, more than half a million people took part in protests across Australia against the US-led invasion of Iraq, the largest anti-war protests in Australia’s history. The Committee can see the pattern that I am drawing out here and should perhaps reflect that Australia is, however imperfectly, a democracy and there is a strong chance that public views may eventually influence political choices.

Australian officials believe, and it has been widely acknowledged, although it is extremely hard to estimate the cost of the AUKUS programme over its life, that the long-term cost of the submarine plan is likely to be about 0.15% of Australia’s entire gross domestic product per year, on average. For context, in 2023, that was put as a comparable cost to boosting the resourcing of schools across the entire nation to what was seen to be an essential minimum standard. But the objections are not just about costs. I draw noble Lords’ attention to the Australian Greens’ dissenting report to the Senate Committee on Foreign Affairs, Defence and Trade’s report on the Defence Legislation Amendment (Naval Nuclear Propulsion) Bill 2023. The dissenting report is readily available, so I will not discuss it at length but pick out a couple of key points. First, it states:

“There are environmental, health, security and social risks associated with every facet of the nuclear industry. These risks disproportionately impact First Nations peoples and their lands.”


I note that the very much unfinished business of the treatment of First Nations in Australia has recently been strongly highlighted. The report then states,

“that the two major parties have worked together to ensure a short time frame on the reporting of this inquiry and not enabled time for public hearings … the Australian public has not been properly consulted on the AUKUS proposal”.

We can see the clear echo here at the complaints that we have heard across this Committee. The report concludes that the deal undermines Australian sovereignty and violates international nuclear safety principles, and notes that Australia’s Defence Strategic Review rejected advice from the International Atomic Energy Agency and the Australian Government’s own nuclear safety advisory council, which recommended that an independent regulator have oversight of the programme.

Finally, the report notes:

“The Australian public has rejected … nuclearisation … for nearly a century”.


It might be of particular interest to the Government that the Electrical Trades Union and the Australian Manufacturing Workers’ Union, two prominent Australian unions, strongly oppose the development of a nuclear industry in Australia or any end to the moratorium on nuclear power. That is the political context of the AUKUS deal. Noble Lords might think that that presents considerable political risks: they would be right.

I also note that that reflects the conclusion of a report published in the last week by the US Congressional Research Service, which says of the military context that

“the costs … of Pillar 1 could reduce, perhaps significantly, funding … for other Australian military capabilities”.

Crucially, it says that no alternatives were ever considered by any of the AUKUS partners. We come back to democratic scrutiny and consideration. To repeat, this report was from the US Congressional Research Service.

Finally, the timing of this debate all too acutely highlights the geopolitical context, of which our relationship with Australia is a small if significant part. There is the approaching US election, in which there is at least an even-money chance that we will see a second Donald Trump presidency and a risk that, even if that is not the result, we will see that candidate seeking to claim the presidency. I will not get into the details of today’s row, but this is not a politically stable time in US history to be making deals such as either of these. At the CHOGM meeting in Samoa, for which our Prime Minister may just about have landed after 26 hours, he will not be joined by the leaders of India or South Africa, because they are at the BRICS meeting hosted by the Russian President, Vladimir Putin, in Kazan, where the Chinese President, Xi Jinping, is also in attendance. Canada too is sending neither its Prime Minister nor Foreign Minister to CHOGM.

As I said in our debate on the defence review, the UK needs to consider far more than defence in isolation. It needs to consider its place and relationships in a world of multiple security threats—not just the Russian invasion of Ukraine and the threats that China presents with its denial of the joint declaration in Hong Kong and the threats to the democratic entity of Taiwan, but the multiple security threats of the climate emergency, the nature crisis and multiple health threats. I draw attention to an extremely disturbing report in Vanity Fair about the H5N1 virus in US dairy herds and that country’s wholly inadequate public health response.

The agreements we are debating today already look like 20th-century relics, and in future will likely look even more so, sitting dangerously, expensively and unstably in the 21st-century world. The security of our country and the world cannot afford such outdated approaches.

Commission on Justice in Wales

Baroness Bennett of Manor Castle Excerpts

Monday 7th October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The noble and learned Lord’s report was a large piece of work. As I said in my initial Answer, it is for the Senedd to take forward the vast bulk of the recommendations, and the UK Government are acting on some of the recommendations and are continuing to act particularly on the disaggregation of data. The Labour manifesto made clear that the principal objective of the noble and learned Lord’s report is not one that the current Government share. We want to work in practical ways for the benefit of Wales, and the examples that I gave of youth justice and probation are good examples of that.

[Baroness Bennett of Manor Castle (GP)]

My Lords, following on from the question from the noble Lord, Lord Wigley, who noted that the Labour Government seem, as in many things, to be following the path of the Tory Government, and picking up the point made by the noble and learned Lord, Lord Thomas, if the Government wish to maintain the union, given that there is rising evidence of interest in independence in Wales, would it not be a good idea to explain clearly to the people of Wales why, as the noble and learned Lord said, the Government are going against this report of independent experts that was very carefully considered?

[Lord Ponsonby of Shulbrede (Lab)]

It is worth saying that Welsh lawyers and Welsh law firms benefit from being part of the internationally-renowned English and Welsh legal system, and the Welsh people have consistently voted against devolution—the noble Baroness looks confused, but that is the context within which we are dealing with this question. We are clear that there are profound benefits from keeping a combined legal system for England and Wales. A couple of practical examples are in the context of prisons, where there is no women’s prison in Wales nor any category A offender prison. That is not a cost to Wales, but it is beneficial to the combined system as there are savings to be made through not repeating, for example, women’s prisons in different parts of the country. The benefit is there, and we want to protect it and manage the system for the benefit of the people of both England and Wales.

Fundamental Rights and the Rule of Law

Baroness Bennett of Manor Castle Excerpts

Thursday 25th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

Yes, I think I do agree with the noble Lord, Lord Carter. I spoke to Sir Peter Gross about this a number of years ago, and I will make essentially the same point that I have made in answering other questions from noble friends. There is a role for greater promotion within our schools, and that should be seriously looked at.

[Baroness Bennett of Manor Castle (GP)]

My Lords, in a speech to the Institute for Government on 10 July 2023, the then Attorney-General said:

“Laws should be accessible, intelligible, clear, and predictable”.


The last two questions have referred to the difficulty and lack of understanding of the UK’s constitutional arrangements. Our constitution, accreted by centuries of historical accident, fails to fit the criteria the Attorney-General set out. Are the Government prepared to set out a path towards a modern, democratic, functional written constitution?

[Lord Ponsonby of Shulbrede (Lab)]

I think the short answer to that is no. The accretion of laws the noble Baroness refers to is the common law system. She is shaking her head, but that is an accretion of laws over centuries. All the lawyers I have spoken to are very proud of it and think it a flexible system. Many times, it is a better way of dealing with changing circumstances than primary legislation. We want to keep that flexibility in our current arrangements.

Victims and Prisoners Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Wednesday 31st January 2024 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I want to pick up the point made by the Minister about victim services going into the code rather than into the Bill. I feel I should apologise that although I have three degrees, none of them is in law—I often regret that these days—so perhaps I am wrestling with some technical questions here.

It seems to me that we are not just talking about restorative justice as a victim service. If you have been a victim of a crime, it goes to court, the police investigate and the criminal is punished; all those might be regarded as victim services but they are all in other Acts—they already exist as an absolute legal right that is laid down. What we do not currently have in any Bill is a right to restorative justice that is balanced. We are saying that restorative justice needs to be in there with an equal or at least appropriate level of weight, and it will not have that unless it is in the Bill.

[Lord Bellamy (Con)]

My Lords, if I may say so, what one should put in the Bill and in the code are matters of judgment and balance. In relation to restorative justice, which we are on, there have already been extensive discussions in the other place. The Government have said, first, that the code should include the right of victims to receive more information about restorative justice, particularly at the point of sentence, and that the importance of restorative justice services should be included in guidance to police and crime commissioners under Clause 11. I think that partly meets, and maybe substantially meets, the point made by the noble and right reverend Lord, Lord Harries, that you need to have in writing somewhere an emphasis on supplying restorative justice. The Government’s position on restorative justice is that that is a proper recognition of the importance of restorative justice.

One should also bear in mind in this context that restorative justice does not just happen; it also needs the consent of the offender, and is quite a delicate operation. You need a facilitator, and so forth. It is one of many services, mechanisms and procedures that are available. The Government’s position is that we should not spell out in the Bill all the mechanisms and procedures that are available but we should work hard to ensure that the code itself, the guidance thereunder and the arrangements for awareness that we will be discussing in due course together raise the profile of restorative justice so that it has its proper place in the system among other things. That is the Government’s position. No one is denying the importance of restorative justice. No one is saying it is a waste of time or should not be there; on the contrary, we are saying that its profile should be raised. The only argument is about how we do that, and Government’s position is that we do not do it by an amendment to the Bill itself.

Victims and Prisoners Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

[Lord Garnier (Con)]

My Lords, I will not follow the right reverend Prelate down the byways of Manchester, or the sheep farmers and their signposts, but I support him and indeed the noble and right reverend Lord, Lord Harries, in the thrust of the amendments that they have introduced. I am part of a catholic gathering which supports the amendments tabled by the noble and right reverend Lord. I do it because I think it is a sensible, practical thing to do, but also because I have seen it work.

Many years ago, when I was the shadow Minister for Prisons in the other place and my noble friend Lord Cameron of Chipping Norton was the leader of the Opposition, I visited a huge number of prisons. I think I visited about 75 of the 145-odd prisons, secure training units and young offender institutions in England and Wales, and in a number of prisons, certainly adult prisons in London, in Wales and in other parts of England, I saw restorative justice in action.

It is a delicate process and one needs to be very careful that it is, as the amendment tabled by the noble and right reverend Lord, Lord Harries, makes clear, carried out where appropriate and that it is available where appropriate. Not every victim is ready to enter into a conversation with the person who committed a crime against them. I have been in the room when RJ took place between prisoners and the victims of murder, the victims of serious violence and the victims of domestic burglary. It takes a very strong person to go into a room and listen to the explanation, the apology, the regret of a prisoner who has killed your husband or your son or your daughter. You need to be very strong and very brave. Equally—I suppose to some extent it is easier because there is, if you like, an advantage to the prisoner to be seen to be behaving in a humane way—I think it is fair to say that for many of the prisoners, some of whom were not very articulate, who had not been educated and who had many social, economic and other disadvantages, it was quite brave of them to come to terms with the horrific things that they had done. So I think “appropriate” is the most important word in the amendment tabled by the noble and right reverend Lord, Lord Harries.

Also, tailoring the scheme, or the particular episode of restorative justice, to the needs of that particular victim is so important. It is not just a blanket answer: putting two people in a room with a presider, if you like, to make sure that it goes well. You need to think about it extremely carefully and treat the individuals concerned extremely carefully; it cannot be forced and it cannot be rushed.

But I believe that restorative justice is a hugely important factor in the reduction of crime and recidivism. It brings together people who have been perpetrators and those who have been victims in what can only be a traumatic experience—namely, the experience of the crime but also the experience of meeting the person who committed the crime against you or a loved one.

I am delighted that the noble and right reverend Lord, Lord Harries, has tabled his amendment, as I am that the right reverend Prelate and the noble Baroness, Lady Bennett, have tabled theirs. This is a subject which has been discussed many times but has never been properly resolved. It has to some extent been seen as a luxury add-on to the criminal justice system; it is not—it is vital and fundamental in the appropriate cases. I say this as someone who has looked at the practical effects of it not only as a shadow Minister but also as a trustee of the Prison Reform Trust, which has been well-invested in this aspect of the criminal justice system.

Finally, I thank the noble Baroness for tabling her Amendment 13. I thought I knew quite a lot about the criminal justice system, but I had absolutely no idea that the oddity she highlighted this evening existed. It needs correcting.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is perhaps particularly appropriate that I follow the noble and learned Lord, Lord Garnier, as a way of highlighting the fact that the amendments in this group addressing restorative justice, a number of which are in my name but have already been introduced by the noble and right reverend Lord, Lord Harries, are not party-political. This is a conviction, understanding and belief that goes right across the political spectrum and, as the noble and learned Lord, Lord Garnier, said, has arisen from practical experience. Speaking to other noble Lords in the Corridor who have seen my amendments, I have had many people who said, “I wasn’t really convinced and then I saw restorative justice in action, and now I am totally a convert to this idea”. The Government are getting a clear message from right across your Lordships’ Committee that, as the noble and right reverend Lord, Lord Harries, said, what was said in the other place—the idea that “Oh, we can put something in the code”—really is not going to do it; we need this in the Bill as a step forward.

I went through this at Second Reading, so I will not repeat it all, but if we look at what the Government are offering now, in their wording is a suggestion that restorative justice is nice when we can find the resources, so you might be lucky enough that there might be the resources available in your area or you might not. That is simply not good enough.

Briefly, I agree very much with all the amendments in this group and echo the comments about Amendment 13. The noble Baroness, Lady Gohir, has found something that the Government can surely pick up, because it so obviously needs to be sorted out.

Victims and Prisoners Bill

Baroness Bennett of Manor Castle Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, as I so often find myself saying in your Lordships’ House, in the Green Party, when we are talking about justice policy, we would not start from here. Green political philosophy puts at its heart restorative justice. That means putting the victim at the centre in aiming to restore—or ideally, improve—their condition comparative to what it was before the crime, and ensuring that the offender’s rehabilitation is built on making amends both to the individual victim and to the community.

Paragraph CJ201 of our Policies for a Sustainable Society sets out, as one of its key objectives:

“To assist the victims of criminal acts as much as possible”.


I note that, when I look at the CPS website, there is a restorative justice page that was updated in February this year. It notes that restorative justice can play a part at any stage of the criminal justice process. It does, however, go on to note that it is most often associated with conditional cautioning. A phrase that particularly caught my attention was,

“where trained personnel are available, it should always be considered”.

My question for the Minister now—or perhaps he could elaborate later in writing—is: where do the Government see restorative justice? I have looked carefully at the Bill and there does not seem to be an obvious way in which that is considered part of it. I would be interested to see whether there is any part of the Bill that is seen to be associated with that and to learn how the Government see restorative justice as part of the overall system.

Of course, if we were approaching the Bill from that perspective, any Bill by definition would involve both victims and offenders—but that, of course, is not where we start with this Bill. So I begin by sharing the disappointment expressed by many that this is now a victims and prisoners Bill. Surely, we would be in a better place if there were now two separate Bills, with a chance for both Houses to fully focus on victims in particular, their care and support, rather than finding ourselves at the same time dealing with some extremely knotty and long-running problems, notably the clear injustice of the IPP—imprisonment for public protection —sentences.

Looking at that focus on victims, we come back to the issue of resources, but also of commitments of resources. I note the excellent briefing from Victim Support, which calls for the Government to commit in the Bill to ensuring that all the rights of the victims’ code are monitored and reported on by criminal justice agencies, not just some of the rights. It says—and I suspect this will find a great deal of support in your Lordships’ House—that this has to be written on the face of the Bill. Victim Support also says—and I have to concur—that the Government should be sharing and publicly consulting on the data proposed for the monitoring of victims’ rights while the Bill is progressing through your Lordships’ House. So often we find ourselves saying very similar things.

In discussing the word “must”, I have to associate myself with the remarks of the noble Baroness, Lady Brinton, about the need to replace many of the “shoulds” in this Bill with “musts”; although we might have to bring in the noble Baroness, Lady Noakes, at that point, because she has her own inimitable perspective on those particular debates.

Talking again about resources, the lack of support for community-based services, particularly for victims of domestic abuse, is something that I have been talking about for at least a decade. So many of our community-based services have to rely on a year-by-year, bid-by-bid state of total uncertainty about funding. We have seen some changes and improvements on that in the most recent years, but still we need to ensure that, if we are going to identify needs through the joint strategic needs assessment introduced by the Bill, there is actually the ability to deal with those needs. It is really important, when we look at the independent domestic violence adviser role, that that has to be an absolutely independent role. We have seen from the noble Baroness, Lady Newlove, for example, how strong and important such advocates can be right across the functioning of our society.

According to the Local Government Association’s briefing—I declare my interest as a vice-president of the LGA—the Bill states that PCCs, health bodies and local authorities must work together in commissioning support services for the victims of domestic abuse, serious violence and sexual violence. That is a great objective, but we all know just how incredibly stretched local government and all such services are. The recent report by the domestic abuse commissioner noted that insecure and insufficient funding was a key driver of services struggling to meet demand. I have pointed out in a number of different contexts that it is important to acknowledge the needs of victims of crime and bereaved families from abroad, ensuring their right to access support in England and Wales. I have raised in Written Questions the issue of ensuring that people who are British residents but not British citizens, and who were victims of crime abroad, get consular support and support when they return home.

Observant noble Lords may have noticed that I am speaking on issues that more regularly fall within the purview of my noble friend Lady Jones of Moulsecoomb. I am sure that she will be picking up on some of these during the progress of the Bill, but there are a couple of issues on which your Lordships’ House may well hear from me again. One is protecting and supporting victims of major incidents and government wrongdoing. The Minister is already aware of my interest, which I raised with him during the Hillsborough Statement repeat, in the “Truth About Zane” campaign, which concerns the tragic death of young Zane Gbangbola. I am pleased to tell the Minister that Zane’s parents are keen to take up the offer to share with the department their experience of having an extreme inequality of arms in Zane’s inquest, with fully lawyered-up public bodies against a grieving family forced to resort to crowdfunding and pro bono support.

I note that the proposed independent public advocate, added after pre-legislative scrutiny of the Bill and without consultations with organisations such as Inquest, Justice or any related to Hillsborough, is being instructed at the discretion of the Secretary of State, rather than the circumstances in which it is to be appointed being set out in statute. That surely cannot be right. I also note that there is no equality of treatment between the victims of major incidents and the victims of state wrongdoing and other crimes, nor any government justification for this disparity. In another revisiting of issues—I see a very familiar cast in this area—I particularly associate myself with the remarks of the noble Baroness, Lady Hamwee, on the importance of services for victims of crime with no recourse to public funds, an issue which many of us addressed during consideration of the Domestic Abuse Bill, and the firewalling of immigration matters from victims of domestic abuse and other crimes.

I see that the noble and learned Lord, Lord Garnier, is not in his place, but hopefully he will see in Hansard later that although he and I are perhaps not very often aligned on economic matters, I very much associate myself with his remarks about the victims of economic crime. He focused on corruption and overseas victims of economic crime—I would add victims of economic crime in the UK. To quote UK Finance, we are

“the fraud capital of the world”.

We are not doing enough for fraud and corruption victims around the world. I hope that I can work with the noble and learned Lord on those issues.

Hillsborough Families Report: Government Response

Baroness Bennett of Manor Castle Excerpts

Wednesday 6th December 2023 Lords Chamber

[Lord Bellamy (Con)]

I entirely agree with the noble Lord, Lord Coaker. Something—a combination of many things—went very badly wrong. As often with tragedies on this scale, it is a series of things going wrong that makes the ultimate result so difficult and tragic.

If I may express a personal view at the Dispatch Box, those families reflect and embody the true spirit of this nation and their communities. For that reason, we should be proud of them, salute them and commend them on their efforts. I know that does not bring their loved ones back, but we should do what we can to recognise their achievement.

In this instance, certain servants of the state, in certain situations, did not behave in the way that we would expect citizens of this country to behave. That has to be remedied and tackled, and we have to do our best to make sure that it does not happen again, as the noble Lord, Lord Coaker, has said. I associate myself with his remarks about the noble Lord, Lord Grantchester, and the magnificent speech he made on behalf of Liverpool and the families.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I echo the comments of the noble Lord, Lord Coaker, on the contribution of the noble Lord, Lord Grantchester. It was a hugely powerful moment. I should perhaps declare that although my involvement is much less than that of others this evening, I have taken part in a number of events in Sheffield with the Hillsborough survivors’ association, usually in conjunction with the Orgreave Truth and Justice Campaign. I echo the remarks of others thanking Bishop James for the exceptional work that has gone into this report.

I appreciate the Minister’s careful and deep—unusually deep from the Dispatch Box—explanation of why the Government have not chosen to head down the statutory route in terms of the duty of candour. However, it is important to put on record that the Hillsborough survivors’ association has already said that it thinks we need that law. That law should not be focused on junior officials who may be trapped in circumstances beyond their capacity. When we are talking, as we are in this case and others, about very senior people who may have a lot to lose by not being open—not showing candour—I am not sure that we do not need a legal framework to deal with them.

I very much welcome the acknowledgement in the Statement that justice unfunded is justice denied. There is in far too many of these cases a deep inequality of arms between families and official bodies that establish an array of KCs—very powerful and extremely well-paid lawyers—against what can be a crowdfunded legal team or one with very limited funding. On that point, I refer to paragraph 38 of the Statement from the other place, which acknowledges that:

“Bishop James talks broadly about the proper participation of bereaved families at inquests where the state is represented. We will seek to further understand the experience of these individuals”.


I raise the case of seven year-old Zane Gbangbola, who was tragically killed by lethal gases in 2014 in Chertsey, Surrey. If the Minister looks into that inquest he will see that there was a massive inequality of arms between the situation of the family, which basically crowdfunded and got a tiny bit of legal aid at the last second, versus nine public bodies that all had their own representation. The case of Zane and the continuing fight of his father, Kye, and his mother, Nicole, to get an independent inquiry into that case is ongoing. The call has been backed by Sir Keir Starmer and Andy Burnham. Acknowledging that the Statement mentions seeking to

“further understand the experience of these individuals”,

can the Minister commit that the department will listen to the experiences of Kye and Nicole when it is considering the experiences of families?

[Lord Bellamy (Con)]

My Lords, the noble Baroness rightly makes a point about the distinction between junior officials and senior officials. The present public accountability Bill does not make that distinction. It is drawn in very wide terms. Without offering any commitment, I think that the point that she makes will be registered in the ongoing discussion of this issue. The equality of arms is a deep problem, probably in most justice systems. As noble Lords will have seen from the Statement, a number of measures are proposed which the Government will undertake to try to redress that balance. On the specific question about the case of Zane and similar cases, the Ministry of Justice is always ready to have its attention drawn to particular circumstances. If she is kind enough to do so, I will ensure that this is looked into.

Economic Crime and Corporate Transparency Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Tuesday 25th April 2023 Grand Committee

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to rise to take part in this debate, which has been rich, full and powerful. I will seek not to repeat anything that has been said but simply to make a couple of points.

First, I offer the Green group’s support, showing that we have the broadest possible political support in your Lordships’ House for this approach. I also want to address the use by the noble and learned Lord, Lord Garnier, of “ingenious”. These amendments are not ingenious—they are obvious, reflecting an obvious step. It is interesting that a number of Members of your Lordships’ House, operating so far as I am aware entirely independently, have collectively brought together a group of amendments that forms a quite complete package. I am happy to accept that we can work on the detail, and I very much join others in wishing that the Government will work on the detail, but the package is there, approaching this issue from different angles.

I bring up a point made by the noble Lord, Lord Agnew, in the previous group, which reflected on the failures of HMRC to deal with money laundering. That is just one element of the way in which our institutions that are supposed to be taking on economic crime are simply not up to the task or resourced for it. I join the media crew here as a former newspaper editor, which is the perspective I come from. In many of the worst cases, as the noble Baroness, Lady Wheatcroft, outlined earlier, it is not law enforcement or HMRC that uncover situations that bring gross abuses and crimes to public notice but journalists and NGOs bravely stepping out to expose what is happening. The Government are not capable of doing that, and we desperately need the fourth estate to take those actions. It fills a gaping hole which otherwise will not be filled, and crimes will not be exposed if the media and NGOs are not in a position to do this.

I think the noble Lord, Lord Cromwell, referred to an important report from the Foreign Policy Centre and Article 19. Last night an event in the Houses of Parliament looked at an updated report that they had prepared called London Calling—a very timely event. To look at some of the contents of the report, it says that the UK is

“a leading jurisdiction for domestic and trans-national SLAPP cases”.

A 2020 study by the Foreign Policy Centre found that 63 journalists working on financial crime and corruption in 41 countries identified the UK as the leading international jurisdiction for legal threats. I also make the point—it was made by others, but it needs to be driven home—that this report notes that the use or threat of SLAPPs “rarely make the public record”. So, although the noble and learned Lord, Lord Garnier, says this is just a handful, it is the tip of an iceberg of people using the UK legal system for criminal purposes. It is not exposed, but we know that it is there.

I will make two final points. The world knows that that issue is there. If we think about the geopolitical state of the world now, this is broader even than the financial impacts. I note one estimate of the cost of worldwide economic crime: $274 billion. There is the financial cost, but also the impact in a world where the rule of law is under consistent attack, where we see not just individual oligarchs or kleptocrats but entire nation states attacking the rule of law. The UK is putting itself in a far weaker position by being the home where the kleptocrats, oligarchs and those states are able to use the law as a weapon.

Finally, we have mostly referred to the traditional mainstream media. Looking at the range of organisations involved in the initial launch of the Foreign Policy Centre and Article 19 report, on the panel were Tortoise Media, Open Democracy and English Pen. This concerns some very small, brave organisations with very few financial resources; it is not just the old legacy media, which still have some financial resources left. We have people stepping up to the plate. We think about London, but we have also seen a real rise of quality regional media in places such as Manchester, Liverpool and Sheffield, where local media is stepping up and doing investigative journalism. They have almost no resources to be able to take on the threats; they need legal protection, so this needs to happen at all levels. Your Lordships’ House has come up with a package that takes us a long way towards where we need to be. We must get there now. As many others have said, we cannot wait.

[Baroness Altmann (Con)]

My Lords, I add my support to my noble friend Lady Stowell’s Amendments 87, 88 and 89 and congratulate her and her committee on their work. I also support Amendment 80 from the noble Lord, Lord Thomas, and Amendments 105 and 106 from the noble Lord, Lord Cromwell. As I said at Second Reading, this is a vital issue that must be covered in this Bill. In this group, we are discussing threats and lawsuits whose intention is to silence, intimidate or censor critics such as investigative journalists. So often, as the noble Baroness, Lady Wheatcroft, explained so well, they stem from economic crime.

This issue is not just about actual lawsuits. As others have said, often the matter will start with a threatening letter or even a phone call, which is enough to stop journalists or investigators from pursuing inquiries. That is why so few SLAPPs have come to court. I respectfully disagree with my noble and learned friend Lord Garnier on whether the few cases are any indication of whether this legislation and these amendments are required. These threats and vexatious potential lawsuits threaten not just journalists, campaigners, authors or academics but everyone’s rights in this country. They limit the rights of the public to have matters exposed, such as bribe-taking, poisoning water supplies with toxic chemicals, or general economic wrongdoing, which falls squarely within the remit of this Bill. Our courts are supposed to be there to protect ordinary people and small companies without large resources against those with more power, money and influence. Without these amendments, that protection will be fundamentally weakened when we have an opportunity to strengthen it.

I am not a lawyer, but Amendment 80 seems sensible to me. I believe that the Law Society supports judiciary-led gatekeeping. Amendments 87, 88 and 89 from my noble friend Lady Stowell seek to remove the incentives to issue these kinds of threats by introducing properly meaningful fines and intend that payments should not be able to come from the proceeds of economic crime. Again, that seems eminently sensible. I will listen carefully to my noble and learned friend but, equally, I urge him to listen carefully to the powerful arguments across all sides of this Committee and either accept these amendments or introduce his own.

--- Later in debate ---

[Lord Bellamy (Con)]

I entirely accept that it is not impossible and, to take the phrase of a noble Lord earlier, that it is actually doable. I think that it was the noble Lord, Lord Cromwell, who used that phrase.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I was hoping that someone with a great deal more legal knowledge than me would rise to speak, but I feel that I need to challenge the Minister’s comment that this proposal is unprecedented. Other noble Lords will be able to say more, but we have a process of law about vexatious litigants who are unable to bring cases. There is a whole set of rules there, and there are rules in the family courts that eventually stop cases being brought. So it is not the case that this is something that has been miraculously conjured out of the air that does not exist in any form whatever in the legal framework.

[Lord Bellamy (Con)]

My Lords, on that last point I had primarily in mind the amendments that seek to criminalise bringing cases before the courts, which is the subject of some of the amendments.

--- Later in debate ---

[Lord Bellamy (Con)]

Indeed. I suggest that I meet with my noble friend and we go through it with a fine-toothed comb. I am happy to meet with anybody else who wants to go through particular amendments with a fine-toothed comb and see where we are, because there is no point in arguing about things where we are ad idem.

The same point arises on Amendment 89, which relates to POCA—I pronounce it “poker”, but others pronounce it “pocker”—and Section 327 of that Act. Amendment 89 aims to stop corrupt claimants using their criminal property to pay their legal fees. Our view on Section 327 of POCA is that that is already effectively covered because it makes it a criminal offence for anyone to convert, conceal or transfer criminal property, so the payment for legal services using criminal property is already a crime. I am led to believe that the Solicitors Regulation Authority will shortly publish new guidance on the application of POCA in relation to solicitors’ responsibilities in that respect. So our position on our amendment is that it is already covered, but again, let us discuss this in detail so that we can get it right. Formally speaking, for those reasons I ask my noble friend in due course not to press her amendment today.

I am grateful to the noble Lord, Lord Cromwell, for his Amendments 105 and 106, and for the care and attention that he has devoted to this. Again, the Government’s position is that these amendments do not quite cut the mustard, if I may put it that way.

As drafted, Amendment 105, which seeks to create a new defence, would cut across several other areas of jurisprudence. There is a common law public interest defence for a breach of confidence, and a very careful balancing, in Section 4 of the Defamation Act 2013, as to when you can have a public interest defence in defamation cases. This kind of provision should not be rushed through without a careful examination of its side effects on other legislation and potential unintended consequences. Neither does the amendment quite attack what the Government would suggest is the main problem, which is not whether you have a defence but whether you have the money to fight it in the first place. You need some cost protection to be built into the SLAPPs framework.

The same point applies to Amendment 106 on the power to strike out. There are already powers to strike out, and the noble Lord makes it clear that we need to clarify those powers—but one cannot get away from the fact that, typically speaking, a strike-out application is very expensive and complicated, because you are trying to throttle a case at the beginning and the court is having to go through a great deal of work to get there. In the end, a strike-out will probably not be effective in achieving what the noble Lord seeks to achieve. We share the objective, but we are not sure that this is the right way to do it.

While we are sympathetic to the sentiment behind the amendments, from a technical point of view, the Government do not think that they are quite right. Unscrupulous claimants could exploit all this by ensuring that the process remains very complicated, long and burdensome. That is the Government’s position on these amendments. I repeat that I am very happy to engage so far as I can in a dialogue with noble Lords to see whether we can make further progress on the technicalities of this issue and look for a proper legislative vehicle in which to carry it forward.

[Baroness Bennett of Manor Castle (GP)]

I do not believe the Minister addressed the point that I and a number of other noble Lords raised about the international dimension of this, and the UK’s position in the international framework. Noble Lords may have seen that the noble Baroness, Lady Kennedy of The Shaws, was joined in this Committee by some guests, one of whom was Sebastien Lai, the son of Jimmy Lai, who was a victim of what has been labelled lawfare by the Chinese state in Hong Kong. We are also seeing British institutions being used as a weapon for that lawfare. Does the Minister acknowledge that there is a true international reputational issue and that the whole rule of law across the world is under attack?

Reflecting on what the Minister said, I think we heard something of a hint about the Government’s thinking that cost protection could be one way of addressing this issue. That fails to address the point made by the Labour Front Bench and others that, even if there is cost protection, an enormous amount of time, energy and stress goes into a case. Even if you are able to take away the financial threat, you are taken away from doing other journalism if you have to spend months engaging in a case.

--- Later in debate ---

[Lord Bellamy (Con)]

Again, I thank the noble Lord for his remarks. The key problem is to distinguish access to justice from harassment. It is quite difficult, but it can be done. That is my answer to that question. On where the Government are, as I said before, we are working on drafts, but I cannot go any further than that until I know whether there is a legislative vehicle and which it can be. I am sorry not to be able to commit the Government at the Dispatch Box today any further than that but, as I said, I am hoping—and I can only express as a hope—that this is a short-grass and not a long-grass issue.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I apologise to the Committee, I perhaps should have declared my position as co-chair of the All-Party Parliamentary Group on Hong Kong in my last intervention.

[Lord Thomas of Gresford (LD)]

My Lords, I am grateful to Minister for his response and look forward to discussing these issues with him. I am grateful to all noble Lords who have spoken, and in particular to the noble Baroness, Lady Stowell. I commend her and her committee for the work they have done in investigation and taking evidence on this issue. I admire the guts and determination of the noble Lord, Lord Cromwell, and the fury of the noble Lord, Lord Agnew, on this issue.

I do not want to speak for too long: we have had a very long debate. The only dissenting voice was that of the noble and learned Lord, Lord Garnier. Your Lordships may recall that I said that, when the results of the consultation were looked at, the claimants’ lawyers were saying, “There’s nothing to see here, guv. It’s all the ordinary rough and tumble of litigation in this country”. The noble and learned Lord, Lord Garnier, referred to his experiences in the bear garden. I remember the bear gardens—I remember appearing in a bear garden for the leader of the Opposition in the Singapore Parliament; it was not an easy position. He was suing the Straits Times for libel, and the application to strike out was made on the grounds that he had no reputation in this country. When he died, some years later, he had obituaries in the Times, the Telegraph and the Guardian.

I know the games that these media lawyers play. They do not face up to some of the realities that we in the criminal courts perhaps have to face from time to time. But I have the highest regard for the noble and learned Lord, Lord Garnier, in his professional capacity, so nothing that I say should be taken as derogatory to him—otherwise, subject to professional privilege, I might find myself in court.

Nationality and Borders Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Tuesday 8th February 2022 Lords Chamber

[The Lord Bishop of Gloucester]

My Lords, I have added my name to Amendment 105 and the intention to oppose Clause 31 standing part of the Bill. I too am grateful to Women for Refugee Women and others for their briefings and support.

In the New Plan for Immigration and the briefings for the Bill, the Government have argued repeatedly that the existing asylum and refugee system is weighted against vulnerable women. The Home Secretary has repeatedly made the point that the large majority of channel crossings are by men aged under 40, for example. Given this, there might be some expectation that the Bill would contain some good news or ambitions on the part of the Government for better reaching and helping the women and girls who make up 50% of the world’s refugees and displaced people. Unfortunately, I do not see any such commitments. As a sting in the tail, in Clauses 31 and 32 we find proposals that seem to significantly disadvantage women further.

I will not repeat but endorse the arguments that it is already disproportionately difficult for women, particularly survivors of gender-based violence, to have their claims for refugee protection status correctly determined. Clause 31 can only exacerbate this situation, which is a disaster for many vulnerable women. That is also true of Clause 32, unfortunately, and I am very grateful to the noble Baroness, Lady Lister, for laying out the issue here so clearly. I am very pleased to add my name in support of her Amendment 105.

I have no wish to take up time repeating the arguments, but it is critical to reiterate the point that the “particular social group” reason is an essential lifeline for survivors of sexual and gender-based persecution not otherwise covered by

“race, religion, nationality or political opinion”

in the reasons set out in the 1951 convention, as we have heard from other noble Lords. I will listen closely to the Minister’s response on this, but it is very difficult to see the justification for this move, which goes in the face of existing legal practice. It is so important for these survivors.

Many of my best memories of this place come from last year’s excellent debates on the Domestic Abuse Bill, which really showed politics in its best light. I know that this cause is taken seriously by the Government, but it seems that there is a blind spot on migrant women. We will discuss this again on later amendments, including my right reverend friend the Bishop of London’s forthcoming Amendment 140, but I end with a plea to the Minister to look again at these clauses and, if these amendments are not right, to present others that will ensure that vulnerable women are not further disadvantaged by this change.

[Baroness Bennett of Manor Castle (GP)]

I offer the support of the Green group for all the amendments in this group and express horror at the whole nature of this part of the Bill. It is a great pleasure to follow the right reverend Prelate and to agree with everything that she said about the gender aspects of the Bill as it now stands, as also mentioned by the noble Baroness, Lady Lister.

I want to address Amendment 111 and make a simple observation: the average length of a prison sentence in England and Wales in 2021 was 18.6 months, compared with 11.4 months in 2000. Is this really something extraordinary? Is the UNHCR right in saying that this change in terminology is not right? I think that it clearly is.

I want to draw out what the noble Baronesses, Lady Lister and Lady McIntosh, said, both of them reflecting on different elements of how this law is throwing out 25 years of British legal tradition. I am not going to reopen the discussion on the last group about particular political labels, but I will note that this is happening in a country where only a couple of years ago we saw our most senior judges under attack on the front pages of certain newspapers. That is the context in which this is occurring.

I want to reflect—a number of people have talked about this but I shall boil it down—on what the Government’s proposals are likely to do: produce a large number of people who are denied status but who cannot be sent home because it is clearly impossibly unsafe and dangerous to send them there. That leads to a situation of more chaos and more forced black-market employment, which surely no one could want.

[Lord Sentamu (CB)]

My Lords, I want to give practical expression to what those who have spoken, including the noble Lord, Lord Dubs, and the noble Baroness, Lady Ludford, have said, and to the exposition of the noble and learned Lord, Lord Brown: if a law is going to be passed, it needs to be clear, simple and not confused, as in Clause 31.

I shall tell a story. A friend of mine was going to be best man at our wedding, but Amin’s soldiers were hunting for him, so he left Uganda on the very day that we got married, dressed like a woman, and landed up in Kenya. That was the only way he could get away. He had nothing. Friends in Kenya managed to get him a ticket and he came to Oxford with nothing. There he studied law and did very well as a result, but if the test had been on the grounds of probability, he probably would not have done so. It comes down to the question of “reasonable likelihood”. All he could do was describe how he left Uganda. If you are from Uganda, you know you do not go around dressed like that, but the people who listened to his case at Oxford could associate with it.

I ask this for the reasons that the noble and learned Lord, Lord Brown, has given: why in one clause do we have “reasonable likelihood” and in another “the balance of probabilities”? That confuses the legislation.

I have been able to represent some asylum seekers when they have come here. I think the Joint Committee on Human Rights is right that this is what should be incorporated in our law and we should not try to change it—unless of course we are following the analysis of the noble Baroness, Lady Chakrabarti, that instead of making it clear as we incorporate this into our legislation, we are saying, “Throw it out. We know better and we are going to do it in our own way.” I do not think that that makes for good law. It is not simple, straightforward or clear. In the old days, it was said that any good law must be understood by the woman or man on the Clapham omnibus—if they cannot understand it, your law is not very clear. The judgment of Lord Bingham is clear.

Why abandon our case law as we begin to incorporate this into our law? This time the Minister will have to give us reasons why that is the case, instead of—forgive me—what sounds like a bullish reaction to every reasonable thing that has been said. I plead with the Minister to use simple language and retain “reasonable likelihood”, because that is much easier to deal with when people come here without papers or documents and their lives are in danger.

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[Baroness Lister of Burtersett (Lab)]

My Lords, I support these amendments, to which I was pleased to add my name. I thank the Royal College of Psychiatrists and the Helen Bamber Foundation for their help.

Many of us have already highlighted how provisions in this Bill will seriously harm the mental and physical health of people seeking asylum, through, for example, leaving group 2 refugees living in limbo with uncertain status or by placing people in vulnerable circumstances in accommodation centres that function as quasi-detention and have been shown to have a terrible impact on health.

The amendments are a positive step that aims to ensure that the physical and mental health needs of people seeking asylum are prioritised and that there is a comprehensive, co-ordinated approach to addressing those needs in line with our obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966 to

“recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.

Numerous reports and work by organisations such as the Helen Bamber Foundation, Freedom from Torture, the Royal College of Psychiatrists and the Equality and Human Rights Commission show that people seeking asylum face barriers in accessing services, including health services, throughout the asylum process, from their arrival in the UK to the conclusion of the process and beyond. They are also more likely to have specific healthcare needs caused by distressing experiences in their country of origin and traumatic experience during their journey seeking refuge.

As the noble Baroness, Lady Hollins, explained, there are numerous points in the asylum system where the physical and mental health of people seeking protection affects their ability to engage in the process or is worsened by the system we have in place. One particularly troubling example is the detention system, which the noble Baroness has talked about and is the subject of a later group of amendments—I shall scrub what I was going to say about that, given the lateness of the hour.

I am aware that the Home Office is currently engaging with the NHS, NGOs and other stakeholders through groups like its asylum seeker health steering group and associated subgroups. This is welcome, but much more is needed. The current guidance is inadequate and its implementation patchy. Codes of practice focused on the health and care of people seeking asylum and the responsibilities of all those engaging with them in the asylum system would not only increase the fairness and efficiency of the system but provide better protection and support to those in need of asylum.

I hope that the Minister will look kindly on these amendments, which I think are part of the solution.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with great pleasure in following the three noble Baronesses who have proposed this amendment.

Outside Yarl’s Wood detention centre, at the “Set Her Free” protest, I listened to some incredibly powerful and moving speeches from women who had been detained in that centre and had then come back to protest. They spoke about what the experience was like and what they had been through. They showed huge bravery. We talk a lot about trauma in your Lordships’ House; you could hear the trauma in those women’s voices.

I see that the noble Baroness the Minister will not be answering this question, and I do not necessarily expect her to remember this, but in June 2020 when I was still a new Member of your Lordships’ House, she was kind enough to have a one-on-one call with me after I went with the South Yorkshire Migration and Asylum Action Group to Urban House in Wakefield, where the conditions were absolutely dreadful. We saw SYMAAG trying to pick up the pieces after the failure of government services to meet the most basic provisions.

That is why I want to make this particular point: much of the provision covered by the noble Baroness’s amendment is currently being filled, patchily and inadequately but desperately bravely and with huge effort, by voluntary groups such as SYMAAG, as well as many others like them around the country. They cannot possibly do an adequate job, but they do an amazing job. The point I want to make to the Minister is that, with adequate government provision, those groups could do so many other positive things to build communities and be an active growth force instead of just trying to plug the Government’s gaps.

There is a real long-term cost. If we look at the financial cost of the lack of provision that this amendment provides for, the long-term cost is far greater than the cost of providing care for desperate people who are in our society and are our responsibility.

[Lord Paddick (LD)]

My Lords, as the noble Baroness, Lady Hollins, explained, these amendments seek to ensure that the mental and medical needs of asylum seekers are addressed. They would require the Secretary of State to issue codes of practice to ensure that

“the United Kingdom’s obligations under Article 12 of the International Covenant on Economic, Social and Cultural Rights 1966”

are fulfilled in relation to asylum seekers.

Whether their claims are deemed to have merit or not, asylum seekers are entitled to be looked after while they are in the United Kingdom. For the reasons that the noble Baroness explained, they are likely to be more vulnerable and in need of greater care than the general population. God forbid we engage in offshoring —either exporting refugees to a third country while they application for asylum in the UK is considered or, even worse, doing so for them to pursue their asylum claim in that country. That should not absolve the United Kingdom of its obligations under the 1966 covenant. We support these amendments.

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[Baroness Hamwee (LD)]

My Lords, the fact that I am going to say that I could not agree more with my noble friend Lady Ludford and will not add to that should not be taken to reduce the strength of that view.

I added my name to Amendment 122 from the noble Baroness, Lady McIntosh, for the reasons she explained. After I did, I realised that there is a question to be asked about new subsection (E1), which makes it an offence for someone knowingly to arrive in the UK without an ETA, an electronic travel authorisation; I would say that it would be the same to enter, but I am not sure it would be possible to enter the UK without an ETA.

I feel very uncomfortable about new subsection (E1) which makes it an offence to do something under the ETA rules when we do not have those rules. The ETA is not in effect yet. Your Lordships may think it right, when we see what the scheme is, that an offence be created—but not at this stage.

[Baroness Bennett of Manor Castle (GP)]

My Lords, like others, I entirely agree with the noble Baroness, Lady Ludford. I have to put it on the record that it is now 11.04 pm and we are debating major legal innovations with massive consequences.

I want to ask the Minister just one question. Let us imagine a person caught in these circumstances, who has gone on a small boat, been intercepted by the Royal Navy and brought to shore, arrived in the UK and put in jail for four years. That person is very likely from a country in a state of turmoil to which it is utterly impossible to return them for any conceivable time in the future after their four-year jail term. How does the Minister imagine the fate—the life—of that person proceeding from the point they walk out of the jail doors?