Litigation Funding Agreements (Enforceability) Bill [HL]

Baroness Bennett of Manor Castle Excerpts

Committee stage
Monday 29th April 2024 Grand Committee

[Lord Carlile of Berriew (CB)]

My Lords, I will say a very few words that may help the debate. I wholly support the government amendments spoken to by the noble and learned Lord; they clarify the Bill in a way that was required.

I will just go back to something the noble and learned Lord said about what I had said at Second Reading about the Human Rights Act consequences. I referred to the opinion that had been given to us—again, very late in the day, like most representations in this matter—written by my noble friend Lord Macdonald of River Glaven. I am sure we all understand why he is not taking part in these debates; he feels that professionally he cannot because he gave an opinion, a view that I think all practitioners here would support. He said in that opinion that the convention rights arguments with which he was presented in his instructions were “arguable”—that was his word. That is not the highest level of certainty that those of us who have written a lot of opinions would ever put at the end of an opinion if we felt sure. They may be arguable, but they are not strong, and the Government are perfectly entitled to act as they are in that regard.

Then there is the question of retrospectivity. The answer to that is very simple. The Bill would be absolutely pointless if it were not retrospective, because it was created to right a wrong that nobody expected, and it is simply restoring to people the legal rights which they already had. I hope that we will not spend an awful lot of time in other stages of the Bill talking about retrospectivity.

I note that the Civil Justice Council’s new review—I agree with what the noble Lord, Lord Marks, said about its terms of reference—has had support from the Bar Council and the Bingham Centre, in a very well-argued piece that I think was circulated to most Members of the Committee. It was also supported by what we might call the interest groups: the Association of Litigation Funders and the International Legal Finance Association, which have taken a pretty objective view of the proposals in this Bill. All are of the view that the Civil Justice Council, as it is set up by the terms of reference, is the appropriate place for the review to take place. Of course, it leaves some flexibility and some obligation, because a rule-making body such as the Civil Justice Council can change the law in small ways to ensure that appropriate procedures are followed.

For reasons which some noble Lords will recognise, I am an enthusiast of independent reviewers—because I have been one—but I am not an enthusiast for an independent reviewer in this situation. Although an independent review would undoubtedly be fascinating, it would have no power whatever. We need to get nearer to the rule-making powers to ensure that the law in this area is clear, followed, applied by the judges and, above all, understood clearly by the courts.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise very briefly, acutely aware of the legal weight in the Room, to which I add not a gram—although I cannot help noticing the gender balance. I apologise for not speaking at Second Reading. My noble friend Lady Jones of Moulsecoomb spoke in the Second Reading debate but she is currently taking part on the Leasehold and Freehold Reform Bill in the Chamber. I listened very carefully to the words of the noble Lord, Lord Marks of Henley-on-Thames, who is satisfied with the review process that we have going forward, and I will be guided by that.

I want to stress that where we are going now is still not an adequate solution to the problems at hand. At Second Reading, my noble friend said that we need to put

“energy into thinking about a better solution”.—[Official Report, 15/4/24; col. 810.]

We have to do that in the context where we have a crucial, huge inequality of arms—Horizon is the obvious example—in an economy dominated by an increasingly small number of oligarchic, giant, often multinational companies that are deciding how things work in our economy and society, of which people are very often the victims. We have a structural problem: the law now is not equipped to deal with the structure of our economy and society. I conclude only by noting that justice unfunded is justice denied, and there is far too much justice denied to individuals in our society when they are crushed by the weight of corporations or the state.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord McDonald of Salford (CB)]

My Lords, I support the case put by the noble Lord, Lord Cashman, and ask about a current torture case concerning a journalist called Dieudonné Niyonsenga. Last month he appeared in a court in Kigali on appeal; he was sentenced three years ago to seven years in prison. He appeared in court with a wound in his head and he claimed, in that hearing, that he had been tortured. His case has been taken up by the Committee to Protect Journalists. This is not something theoretical or in the past; it is happening right now.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the expert contribution of the noble Lord, Lord McDonald. I offer Green support for all the amendments in this group. I particularly highlight and commend the noble Baroness, Lady Lister, and her allies for highlighting something that is crucial, but I feel that has been covered powerfully, so I will simply address most of the other amendments in this group.

It is worth stressing that the amendments would remove the legal fiction that Rwanda must be treated conclusively as safe by the courts and other decision-makers. They would allow the consideration of evidence. I am speaking in the midst of many eminent lawyers, so I will focus on the politics of this. We live in a world in which we are often told we are living with post-truth politics. At the weekend, I was in the constituency of Kingswood knocking on doors. I met some people there who were living in a post-truth environment—people who had disappeared down some very dark conspiracy rabbit holes. When you are knocking on doors, of course it is impossible to attempt to extract people from those rabbit holes in the couple of minutes you have, but it is truly terrifying—I have to say that most of them will be voting for the Reform party on Thursday, which is something the Government should have great concern about for all kinds of reasons.

Post-truth politics is one thing, but what we confront with the Rwanda Bill is post-truth law. The noble Lord, Lord Clarke, said—I wrote down his words—that he was

“completely flabbergasted by the constitutional implications”.

What are the constitutional implications of post-truth law? Nothing is weighed on the reality of the world.

I want to pick up the point made by the noble Lord, Lord Deben, about the duties of this House. Surely it is the duty of this House to ensure that we have truth- based law.

[Lord Hoffmann (CB)]

My Lords, my noble friend Lord Clarke asked whether there was any precedent for the kind of legislation we are considering, in which some question of fact is declared to be the case to the exclusion of any contrary decision by a court. There are such precedents, but you have to go a long way back in our history to find them.

In 1531, there was an unfortunate incident at a dinner party given by the Bishop of Rochester. All the people who ate their dinner became sick, and one of them died. This was not, at the time, put down to the inadequacy of the health and safety laws in the 16th century, but suspicion fell upon the cook. The King had a horror of poisoning. He was more or less a contemporary of Lucrezia Borgia and recognised that it was being used as a political weapon all over the country. He came down to Parliament, to your Lordships’ House, and promoted a Bill that became an Act. It declared, first, that poisoning was a form of treason; secondly, that the penalty for it was to be boiled alive; and, thirdly—this is the point—that the cook had been guilty of this crime and no trial was to take place. They were probably concerned that some lefty lawyers might get the cook off if it went to trial. The result was that the cook was duly boiled alive before an appreciative audience at Smithfield. That is the sort of precedent which one has to look at in order to justify what is being done now.

Since then, for centuries, we have had the development of the principles of the rule of law and the separation of powers—principles which English constitutional lawyers have written about with pride and foreign lawyers have written about with admiration. I suggest to your Lordships that that is where we ought to stay.

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[Lord Stewart of Dirleton (Con)]

The only thing relevant to an individual case would be matters specific to the individual.

In line with our obligations, I assure noble Lords—in particular the noble Lords, Lord Scriven and Lord German —that individuals will still be able to challenge removal decisions on the basis of compelling evidence that Rwanda is unsafe for them due to their particular individual circumstances. The threshold for such claims is a high one, rightly. People must not be allowed to frustrate and delay removal with the kind of legal challenges we have been seeing for some time, which the Bill is intended to prevent. I have spoken at length—

[Baroness Bennett of Manor Castle (GP)]

Surely we come back to the point about temporality, which a number of noble Lords have raised. Surely the circumstances of an individual, and the nature of the Rwanda they are being transported to on the day their flight lands, are relevant to the individual case.

[Lord Stewart of Dirleton (Con)]

My Lords, that would depend entirely on the case presented by the individual.

I thank the noble Baroness, Lady Lister of Burtersett, for tabling Amendment 30 with regard to victims of torture. With reference to the points of the noble Lord, Lord Coaker, in winding up, while we will reflect on the matters she raises, at this stage I cannot support their inclusion in the Bill.

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[Lord Carlile of Berriew (CB)]

My Lords, I took it that the noble Baroness was asking me a question from the way she started—no, do not ask again. First, I absolutely yield pre-eminence to her in anything related to war stories. On her substantive point, she is right. I was the Independent Reviewer of Terrorism Legislation at the time when holding people without charge in prisons on suspicion of terrorism was declared unlawful. In 2005, the law was changed. It was changed only because of the intervention of the courts following rational and detailed argument. The country did not become a more dangerous place. It became a more lawful place, with better argument about the results. There were huge benefits from that change, but it was made only because there was a fairly complex but easily dealt with legal process.

[Baroness Bennett of Manor Castle (GP)]

I rise with great humbleness to intervene at this point. I was planning to refer to the noble Baroness, Lady Chakrabarti. I know that she has a book coming out shortly, Human Rights: The Case for the Defence. After listening to the noble Baroness, Lady Kennedy, I feel that possibly one of the two noble Baronesses should write a book “Courts and the Law: The Case for the Defence” because it seems to have been clearly identified that that is something we need. The point I want to make about the title of the noble Baroness’s book—she has kindly given me a copy, and I have not had time to read it yet, but I will —is how tragic it is that we feel as if we have to make a case for the defence of human rights. That is the place we are in now. That explains why I chose to attach my name to the notice of our intention to oppose the Clause 3 standing part of the Bill, as did the noble Lord, Lord German, the noble Viscount, Lord Hailsham, and the noble Baroness, Lady Lister.

I think it is worth going back to the title of this clause:

“Disapplication of the Human Rights Act 1998”.


I fully understand that other amendments in this group are trying to make this less bad, but, following what the noble Viscount, Lord Hailsham, said, I feel that crying out in opposition to any disapplication of human rights is where I have to be. It is the only place that I feel that I can be. This picks up points made by the right reverend Prelate the Bishop of Chelmsford that human rights have to be universal. I was looking at one of the main United Nations websites, which defines human rights as

“rights inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status”.

If we take human rights away from some people, it does not affect just those people; it makes all of us far poorer and far more vulnerable.

[Lord Deben (Con)]

My Lords, I remember as a young boy walking with my father in a town. We passed a building which had “Constitutional Club” written on it. I said to him, “What does that mean?”, and he said, “It is the Conservative club. It is called a constitutional club because the Conservative Party believes that the constitution is very important to maintain the stability of the nation”. I rise to support my noble friend in his comments about this Bill in general and the particular clause which we are discussing now.

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If my understanding is correct, this will be an Act of Parliament with retrospective effect. This country does not legislate retrospectively, unless there is a good reason to do so. My experience as a law officer was that, if the Government were minded to propose a Bill that had retrospective effect, they would take the advice of the law officers to determine whether it was okay to do that. I ask the Minister not to confirm whether he has sought the advice of the law officers but to explain to this Committee why the Government are asking Parliament to legislate retrospectively, as it looks as though they are doing.

[Baroness Bennett of Manor Castle (GP)]

My Lords, aware of the hour, I rise very briefly, having attached my name to Amendment 81 in the name of the noble Baroness, Lady Chakrabarti, and the noble Viscount, Lord Hailsham. I am now very clear that the noble Viscount’s Amendment 82 is an ingenious way of addressing the issue of temporality, which we have been circling around again and again. However, I shall simply address Amendment 81.

As I think the noble Baroness, Lady Chakrabarti, said, today we have been introduced to a phrase, “the court of Parliament”, that many of us, certainly myself, were not familiar with. Amendment 81 goes to the sovereignty of Parliament and ensures that Parliament remains sovereign in decision-making. Like other Members of the Committee on this side of the House, I will avoid venturing too far into the internal pains of the Conservative Party, but I think that a section of the party that has recently arrived in your Lordships’ House is very concerned with sovereignty, and it has never been terribly clear whether we are talking about parliamentary sovereignty or Executive sovereignty. Another phrase for Executive sovereignty, of course, might be “the exercise of arbitrary power”. The amendment overcomes that problem, makes it very clear and ensures what kind of country we want to live in.

There is another point I want to raise briefly, because what the noble Lord, Lord Purvis, said on the financial issues was very interesting. I must admit that I have not ventured into those issues because, quite frankly, I have been concerned with stopping the whole thing happening, so the financial aspect, the money, has already been thrown away and that is where we are. However, the point the noble Lord made about commercial confidentiality being allowed to cloud any sort of transparency about what is happening is an issue of concern. Those in other sections of your Lordships’ House will know that I and the Green Party have very strong views about the use of services provided for private profit for what should be care; after all, what we are supposed to be talking about is caring for refugees. Will the Minister say, without going into too much commercial detail, what percentage of profit the Government have allowed for in that contract? If that is said to be still too commercially confidential, what would the Government consider a reasonable level of profit for someone to make from the housing of these refugees in Rwanda?

[Lord Wolfson of Tredegar (Con)]

My Lords, I also note the Clock and I will make points on the two headings. The first is on Amendment 81 in the name of the noble Baroness, Lady Chakrabarti. The basis for it, according to the Member’s explanatory statement, is that

“This amendment replaces … (an executive act), with a parliamentary trigger”.


The proposal is that instead of having an executive fiat, Parliament and parliamentary sovereignty would be put in its place. Unfortunately, the amendment does not do that. What it does is to take the pen away from the Minister and hand it to the Joint Committee on Human Rights. The reason is that the way this amendment is drafted is that two requirements need to be met. First, the Joint Committee on Human Rights has to report its belief that Rwanda is safe; in other words, if it comes to the conclusion that Rwanda is not safe, or might not be safe, then proposed new subsection (1A)(a) is not satisfied, and it falls there. The second requirement is that

“a draft of the instrument has been laid before and approved by a resolution of each House of Parliament”.

If, for example, both the other place and this House were to take the view that the Joint Committee on Human Rights had got it totally wrong and, in fact, contrary to its view that Rwanda was not safe, it plainly was safe, Parliament could do nothing about it. I am sure that is not what was intended, but it is a fundamental problem in the drafting and in the scheme if what is intended is to hand power to Parliament.

Just to make it clear, if that amendment were made to this amendment, I would still oppose it. The responsibility should lie with the Secretary of State. Let us be very clear about what this amendment would actually do. It would take the pen away from somebody who is elected and responsible to the electorate and hand it to the Joint Committee on Human Rights. I have the greatest respect for the JCHR—I appeared before it when I was a Minister—but it is wrong in principle that it and it alone should have the right to stop this legislation in its tracks. That is the first point I wanted to make.

The second point I want to make arises out of Amendments 35 and 90 and the point made by the noble and learned Lord, Lord Falconer of Thoroton, earlier that this is retrospective legislation. As we are in Committee—although many of the speeches seem to be Second Reading speeches—let me pick up one drafting point on Amendment 35. As I understand it, it would prevent a decision-maker making a decision relating to the removal to the Republic of Rwanda of somebody who arrived in the UK before the Act received Royal Assent. The words

“a decision relating to the removal”

are very broad. Would they include, for example, a decision about how old somebody is? That is a decision that will be needed under the current legislation and under this legislation. I would have thought that it cannot be intended that Amendment 35 would stop decisions which have, so to speak, that dual purpose. That is a drafting point.

The more fundamental point is whether this is retrospective legislation at all. I listened very carefully, as I always do, to the noble and learned Lord, Lord Falconer of Thoroton. With respect, I fundamentally disagree with him that this is retrospective legislation. What is retrospective legislation? The House of Commons Library puts it in these terms—this is from a paper it published in June 2013, but these are fundamental principles that do not change over time—citing Craies on Legislation, ninth edition. It says that retrospective legislation is generally defined as legislation which

“takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past”.

The two classic examples are, first, that conduct which is lawful when you do it is not later made unlawful; and, secondly, that the penalty for unlawful conduct when you do it is not rendered greater retrospectively. It is right to say that we have legislated retrospectively in the criminal context—rarely, but we have. The War Crimes Act 1991 and the International Criminal Court Act 2001 are examples of that. However, none of this is retrospective legislation. The example the noble and learned Lord gave is that somebody might have an argument which they could put in court that, for example, “I’ve got a brother here, I’ve got somebody here”. That is not a vested right.

Safety of Rwanda (Asylum and Immigration) Bill

Baroness Bennett of Manor Castle Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I had not intended to speak on this group, but the noble and learned Lord, Lord Falconer, has just raised an extremely interesting point. He suggested that a decision by the Secretary of State, having considered the factors referred to by the noble Lord, Lord German, should be subject to judicial review. The principles of judicial review are clear: the court does not substitute its own view of matters; it assesses whether the Secretary of State came to a reasonable decision.

Departing somewhat from the Government’s view, one of the problems that I have with the Supreme Court decision is that it was not based on the principles of judicial review. The Divisional Court did approach it on that basis and the Supreme Court said that that was wrong. The Supreme Court, relying on precedents that had never received the authority of Parliament or statute, decided that it should not apply the principles of judicial review, but should decide these matters for itself. That is a very important distinction between what happened in this case, which gave rise to this legislation, and the procedure now being proposed by the noble and learned Lord, Lord Falconer.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise with some hesitancy, in the middle of a rather technical debate, but I would like to make a couple of points on this group. The Committee has already heard from my noble friend Lady Jones of Moulsecoomb who, in her inimitable way, made it very clear that the Green Party remains utterly opposed to the entire Bill and greatly regrets that we gave it a Second Reading—but we are where we are.

From listening to the debate on the first group, a word that came up again and again, which might be surprising to people listening from outside the Committee, was “silly”. Of course, what we are talking about is deadly serious, but the definitions of “silly” are interesting, if you look them up. One is “showing a lack of common sense or judgment”. Common sense and judgment are two things that this group of amendments seeks to introduce to the Bill, so I commend the noble Lord, Lord German, for introducing it so clearly and the noble and learned Lord, Lord Falconer, for his excellent assistance in presenting the argument.

It is a statement of the obvious that Parliament, and certainly your Lordships’ House after our vote on the Rwanda treaty, does not believe that what the Bill states is common sense. It is not based on the evidence and has been disproved. More than that, these amendments are making a person, the Secretary of State, responsible for making a judgment. If we are to have the rule of law, a person has to be identified and held responsible for making that judgment. We are introducing a sense of responsibility and evidence here, which would at least be a step forward.

[Lord Purvis of Tweed (LD)]

My Lords, I speak briefly in support of my noble friend Lord German. It has been a short debate, in comparison to that on the first group, presumably because some have now given their Second Reading speeches on this Bill and that is sufficient for them. We will just have to go through the grind. It has, nevertheless, been an interesting debate.

I will pick up on the point made by the noble Lord, Lord Howard. Of course, members of the Supreme Court are not here to answer questions, but I understand that they considered whether the Divisional Court was correct in deciding whether Ministers had followed an incorrect process, under law. The Supreme Court’s view was that the question to answer was whether issues of fact on refoulement, which was the origin of the appeal, were to be determined. That is why the Supreme Court made the decision that it did, and that is the relevant part of judicial review. I do not think that the relevant part of judicial review for the Bill is the Supreme Court’s judgment, but that judicial reviews of the process that decision-makers had followed in deciding to relocate anybody to Rwanda can no longer be carried out. That will now be prohibited which, if I may say so, is a major constitutional step, which the Bingham Centre and many others have warned against. I suspect we will hear that in other groups of amendments and, for me, that is the important part of judicial review.

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[Baroness Bennett of Manor Castle (GP)]

My Lords, if the Committee will forgive me, slid into an earlier part of the Minister’s response was a reference to some glowing statements about the progress within Rwanda on gender equality. Those statements should not be allowed to be left standing, because although we have been very much focused in this debate on refoulement, we are assuming that if refugees—in particular, women refugees—are given status in Rwanda they will remain and have to live in Rwanda. On those glowing statements made about gender equality there, yes, it is well known that Rwanda has made considerable progress in terms of parliamentary representation and ministerial representation—indeed, more progress than our own Parliament has.

None the less, is the Minister aware that in Rwanda, 83% of women work in the informal sector or are in low-wage occupations, earning on average 60% of men’s incomes? Its National Gender Statistics Report 2021 revealed that physical violence affected 36.7% of women and girls aged 15-49 in Rwanda. Will the Minister acknowledge, with regard to his earlier remarks, that making claims about gender equality progress in Rwanda needs to be done with caution?

[Lord Stewart of Dirleton (Con)]

I respectfully agree with the noble Baroness that it is important to look at such matters with caution. In relation to the figures which she cites, the statistics concerning domestic violence would be primarily, one presumes, a matter for Rwandan society itself.

[Baroness Bennett of Manor Castle (GP)]

I am sorry: those were not domestic figures but general violence against women and girls figures.

[Lord Stewart of Dirleton (Con)]

I am very aware of the noble Baroness’s campaigning work on the topic, and she will be aware that the bulk of violence visited upon women criminally is within the domestic setting.

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[Baroness Bennett of Manor Castle (GP)]

I am sorry—the phrase “for a European world” makes me wonder whether the noble Baroness believes that internationally agreed human rights should apply around the world and not just in Europe.

[Baroness Lawlor (Con)]

I thank the noble Baroness for her interjection. I am referring to the treaties emerging from the post-Second World War world, which was very much a European world at that time, to deal with circumstances such as the Holocaust and others, which had been left over from and arisen from it. I agree that there has been constant movement in this area. For instance, the European court at Strasbourg continues to make judicial interventions that sometimes try to push the European Convention on Human Rights much further than it was initially drafted to cover.

However, if I might continue, these treaties were conceived for a European world, by and large, and circumstances very different from our own. As I have said, these arrangements provide for potentially unlimited numbers of people from outside this country to command priority over the express and explicit wishes of its citizens.

Today, mass immigration threatens the democratic arrangements of western countries, the political systems on which they rest, and the stability on which societies and their economies depend. The threat does not stand over Britain alone. The failure of Governments all over Europe to stop clandestine or illegal immigration is destabilising them and their political arrangements. The difficulty of controlling long land borders all over Europe and the difficulties thrown up by the Schengen rules—now, I fear, ignored in many cases—have brought instability and undermined the democratic order. So too have international obligations embedded in domestic law and constitutions. The Sweden Democrats, who advocate tight controls on immigration, have shot to being the largest party in the centre-right governing bloc. For Denmark’s left and its social democratic Prime Minister, Mette Frederiksen, Denmark’s greatest challenge is non-western immigration. Italy can no longer process the volumes of asylum seekers arriving in small boats in Lampedusa and has called on the EU to help. France passed a measure on immigration, only to have the very amendments that had allowed it to pass, after 18 months to two years of wrangling, struck down by the constitutional court.

The UK is in a more fortunate position than these countries, since it is subject neither to Schengen nor the constraints of EU membership. This country and its people have the power to make their own laws. Their legitimacy derives not from arrangements made for times and circumstances different from our own—for a Eurocentric world, to be interpreted by internationalist institutions at a remove from democratic accountability that are often unaccountable for the consequences of the rules they liberally apply. I refer to my noble friend Lord Howard, who is not in his place: the question of democratic accountability must be central to any debate on controlling the UK’s borders.

Our Government have indeed recognised this in drawing up the present Bill, but they have held back from the final measure needed to make it effective. My amendment, like the same one proposed in the other place, will ensure that the Bill is fit for purpose—a purpose fervently desired by the people of this country.

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[Lord Murray of Blidworth (Con)]

My Lords, I shall speak to Amendments 9 and 13. I obviously have the greatest respect for my noble friend Lord Hailsham and the noble Baroness, Lady Chakrabarti, but let us look at the two subsections whose removal they called for at the beginning of the debate. Clause 1(4) says:

“It is recognised that … the Parliament of the United Kingdom is sovereign, and … the validity of an Act is unaffected by international law”,


and Clause 1(6) defines what the term “international law” means. There is nothing at all controversial in either of these clauses: indeed, Clause 1(4) is a classic statement of the legal position. I am afraid that I find it frankly bizarre for speeches to be made in this Committee expressing outrage that the Government have had the temerity to put them into Clause 1, as though they were dark secrets to be discussed only among lawyers in quiet corners of the Inns of Court. It is simply a frank statement and it has every place in Clause 1, where it will help the courts interpret the provisions of the Bill. Indeed, one can see that the interpretation provision at the end of the Bill refers back to Clause 1(6). For those reasons, I oppose the amendments proposed by my noble friend.

[Baroness Bennett of Manor Castle (GP)]

My Lords, acutely aware of the hour, I will be extremely brief and restrain myself. I offer Green support for Amendments 9, 10 and 13 and I will simply say about Amendment 9—I declare my position as co-chair of the All-Party Parliamentary Group on Hong Kong—that I invite noble Lords who are opposing these amendments to turn this around and say how we would feel when the Chinese Government say, “Well, we’re just going to ignore the Sino-British joint declaration”—as indeed the Chinese Government do and we rightly condemn that behaviour, and I hope will continue to do so.

On the second point, I commend the noble Lord, Lord German, for trying to fix the British constitution. It is a brave attempt, particularly at this hour of the evening. I was reminded, looking at his amendment, of the conclusion of the historian Peter Hennessy, the noble Lord, Lord Hennessy, that we suffer from the fact that our constitution—uncodified or unwritten, whichever you prefer—relies on people being “good chaps” who will just follow along and do the right thing. We are well past the point, it is very clear, when we can rely on the Government being good chaps.

[Lord Coaker (Lab)]

My Lords, I shall make a couple of brief comments. The noble Viscount, Lord Hailsham, in his Amendments 9 and 13, makes a hugely important point. I say to the noble Lord, Lord Jackson, that I would be quite happy, if I were to be able to stand again, or indeed vote at the next general election, for my party to stand on the principle that it will abide by international law. That is something by which the Labour Party would be proud to stand. It is clear, with respect to his own party, that there is a division, frankly, between the position that the noble Viscount, Lord Hailsham, holds, where he espoused what was the traditional and in my view the well-respected view of the Conservative Party, and the view of the Conservative Front Bench, which is to the right of the noble Viscount but to the left of the noble Lord, Lord Jackson. I am afraid that the noble and learned Lord, Lord Stewart, is getting it not just from His Majesty’s Opposition but from the right and left of the Tory party. We will be interested to see how he responds to that.

On the issue that

“the validity of an Act is unaffected by international law”,

the noble Lord, Lord Murray, mentioned Clause 1(6), which details the international law that can be ignored or is irrelevant under the Act. It is quite astonishing. If noble Lords have not read Clause 1(6), or have not got it in front of them, it is worth looking at. Virtually every international treaty or convention which this country has been a proud member of, often for decades, is simply to be ignored or considered irrelevant to the validity of the Act. These comprise

“the Human Rights Convention, the Refugee Convention, the International Covenant on Civil and Political Rights of 1966, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, the Council of Europe Convention on Action against Trafficking in Human Beings done at Warsaw on 16 May 2005, customary international law, and any other international law, or convention or rule of international law, whatsoever, including any order, judgment, decision or measure of the European Court of Human Rights”.

Scotland Act 1998: Section 35 Power

Baroness Bennett of Manor Castle Excerpts

Wednesday 18th January 2023 Lords Chamber

[Baroness Williams of Trafford (Con)]

My Lords, the Green Benches have been waiting to get in all through these questions, so we will hear from the Greens first, and then I think the House would probably like to hear from the noble Baroness, Lady Kennedy.

[Baroness Bennett of Manor Castle (GP)]

I thank the noble Baroness. This debate has made many references to the Scottish Government and the Scottish First Minister. I ask the Chamber to acknowledge that we are talking about a law passed by the Scottish Parliament by a significant majority—I hope everyone would acknowledge that. I note also that the First Minister of Wales has said that he would like to introduce the same provisions in Wales and will ask the Government for the right to do so.

I entirely sympathise with the desire for compromise and talks expressed by the noble Baroness, Lady Chapman. The Statement says, and the Minister has repeated, that the Government want to talk to the Scottish Government and get around the table to come to a compromise. But they are arguing that it is impossible to have different gender recognition certificate systems in different parts of the UK. If this is the case, what kind of compromise are the Government going to offer? How can the Bill be amended rather than just being thrown out, if that is what the Government are demanding?

[Lord Offord of Garvel (Con)]

That just indicates the sensitivity of the matter we are dealing with. On the face of it, the Scottish Government Bill allows the Equality Act to continue, because the GRC works within the architecture of that Act, but the Bill has changed the criteria for applying for that GRC, and that has a significant impact, as we have discussed. Therefore, it will need to be discussed in detail and sensitively.

At the end of the day, the issue we are dealing with in this Chamber right now is that the Government believe it would be significantly complicated to have two different gender recognition regimes in the UK, and that this would create a lot of problems between Scotland and England. As the noble Lord, Lord McConnell, said, up until now, and at all points through the discussion, it was considered that the Scottish system should remain within the UK system. We do not see any evidence for why that has changed.

Scottish Independence

Baroness Bennett of Manor Castle Excerpts

Wednesday 7th December 2022 Lords Chamber

[Lord Offord of Garvel (Con)]

The noble Lord is obviously well versed in the Scottish economy and Scottish affairs. I make two observations on the paper, the glossy document. First, as we have come to expect from a Scottish Government with 27 Ministers and 56 press officers, for every policy initiative there is a glossy document and a glitzy, headline-making press release. The problem the Scottish people have, which we have found to our cost, is that actual policy delivery on the ground ranges from non-existent to incompetent. Secondly, any reader of the glossy document will discover four glaring omissions: no explanation of how an independent Scotland would reduce our annual deficit of £24 billion, which is 25% of our annual budget; no explanation of how an independent Scotland would fund this deficit without access to international bond markets through its own currency; no explanation of how an independent Scotland would operate a hard border on the island of Great Britain; and no explanation of how an independent Scotland would access the knowledge economy when the SNP has wrecked our education system.

[Baroness Bennett of Manor Castle (GP)]

My Lords, the Minister referred, in responding to the noble Lord, Lord Foulkes, to “right-minded Scots”. Is he aware that an Ipsos MORI poll on independence came out just a couple of hours ago, after the release of this Building a New Scotland policy paper and the Supreme Court judgment, which shows a significant rise in support for Scottish independence? Should the Scottish people not be allowed to have their say?

[Lord Offord of Garvel (Con)]

As we have said many times in this Chamber, the Scottish people had their say in 2014. Some 3.6 million Scots voted: 84% of the electorate. It was the highest turnout anywhere other than Australia, where it is compulsory to vote. In it, 2 million voted to stay and 1.6 million voted to leave. That is a decisive result.

Northern Ireland Protocol Bill

Baroness Bennett of Manor Castle Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I begin by noting the level of engagement with the Bill in your Lordships’ House, both in numbers and the weight of years of experience. I was tempted to ask the Library to make a calculation of the total but I decided that that was not a good use of public funds; the level of concern about the Bill is obvious.

That was reflected in the opening speeches from the Front Benches. I agree with almost every word from the noble Baroness, Lady Chapman of Darlington. She clearly identified that the Bill will not solve the problems it purports to address; that it breaks international law, as many noble and noble and learned Lords have said; and that it gives unprecedented powers to Ministers at a time when we have seen a great many Bills go through in your Lordships’ House—and that is just in my three years here—that, it was already being said, gave unprecedented powers to the Executive; now, they are largely law. We have an overweening Executive, unprecedented in history—and what an Executive.

The speech of the noble Lord, Lord Purvis of Tweed, was notable in bringing out the second point in that list: the breaking of international law. It did not so much bulldoze the Government’s arguments for just cause for their actions as grind them into tiny fragments so that they lay on your Lordships’ House like a layer of sand.

As the noble Lord, Lord Ricketts, outlined, this is happening at a critical point in this age of shocks. He highlighted the geopolitical shocks, but I would add the broader climatic and environmental shocks. The UK remains the chair of the COP climate talks. Many are hoping, perhaps against hope, that we might play a significant, positive role in the COP 15 biodiversity talks, which are finally soon to start. The destruction of legal principles that the UK has historically played a big part in creating can only damage not just our place in those talks but the entire progress of those crucial endeavours.

I said that I agreed with almost everything that the noble Baroness, Lady Chapman, said; where I would differ is her stress on the reason for not voting today—that magical incantation that we are the unelected House. Your Lordships’ House has already had cause to ponder that lack of election does not mean lack of responsibility and that a significant number of the matters increasingly coming before us could best be labelled, in the purest sense, a conscience vote. Perhaps we should look back to what happened with the internal market Bill when, with the leadership of the noble and learned Lord, Lord Judge, this House took a firm stand.

Many of the practical arguments against this Bill have already been powerfully made, but in part I chose to devote a considerable chunk of my week to this debate because I wanted to demonstrate the wide breadth of concern across this House. Many of the speakers with whom I am agreeing in opposing this Bill are not people with whom I have broad, general agreement across a wide range of issues, but the broad view of the House is obvious, and I agree with it.

I also consulted the Green Party Northern Ireland because I think it is important—crucial indeed—that all the communities in Northern Ireland are represented here in your Lordships’ House. Like so many others, it stressed that the Bill amounts to a near-complete unilateral rewrite of what is supposed to be an internationally binding treaty. Article 4 of the withdrawal treaty explicitly prohibits this type of legislation. More, it is clear that the scale of the provisions in the Bill is not necessary and risks making the problem worse. Very directly, what is proposed will create further difficulties for Northern Ireland businesses. The only businesses that will benefit will be GB firms which ship to Northern Ireland. I think the noble Baroness, Lady Ritchie of Downpatrick, made this point very clear.

The only sensible solution to the clear problems with the current arrangements—which, let us not forget, since the Minister referred in his introduction to the democratic deficit, are subject to a consent vote in the Assembly in 2024—is one that is managed through negotiation and mutual agreement. I note that that has been very strongly stated by the Northern Ireland Business Brexit Working Group, which represents, among others: the Dairy Council, the Federation of Small Businesses, Hospitality Ulster, the Institute of Directors, the CBI NI, Logistics UK, Manufacturing NI, the NI Grain Trade Association, the NI Meat Exporters Association, the NI Food and Drink Association, the NI Chamber of Commerce and the NI Retail Consortium. We need negotiation and a negotiated settlement, not this Bill.

Scottish Parliament: Independence Referendum

Baroness Bennett of Manor Castle Excerpts

Wednesday 20th July 2022 Lords Chamber

[Lord Offord of Garvel (Con)]

I think we should always turn the argument back on them. They claim that they want to make Scotland wealthier, happier and fairer, but they have not given us any arguments as to how they can do that. We believe that we can do that much better within the union and with a positive narrative for Scotland inside the union: we have a strong currency and 300 years of family binds that bring us together; we support each other, as we have just seen during Covid through furlough. We are all better together, therefore I endorse the noble Lord’s opinion.

[Baroness Bennett of Manor Castle (GP)]

My Lords, surely there is another view: the parties proposing an independence referendum won a majority of seats and votes in last year’s Scottish Parliament election. That is the standard definition of a democratic mandate. If the Government have decided on another definition, could they please tell your Lordships’ House what it is? Or have the Government simply decided that the people of Scotland will not be allowed to make such a decision for themselves?

[Lord Offord of Garvel (Con)]

In the last Holyrood election, the SNP failed to get a majority. If we add in the 28,000 Green votes, it got to 50% of the popular vote, but it was still only 1.4 million out of 4.3 million voters. It is stuck at that 1.3 million to 1.4 million. You can decide what a mandate is, but it seems to me that common sense would say that it would need to get to 2 million, because the unionists took 2 million—so that is a gating item. If you go to 60% of that, you have 2.5 million, so I think it is a long way off.

Police, Crime, Sentencing and Courts Bill

Baroness Bennett of Manor Castle Excerpts

Lords Hansard - part one & Committee stage
Monday 22nd November 2021 Lords Chamber

[Baroness Bennett of Manor Castle]

I point out to all noble Lords who have spoken that victims can be of all genders. It is unfortunate that this debate has been specifically gendered.

[Lord Falconer of Thoroton (Lab)]

The noble Baroness, Lady Bennett, is right. This is about sexual assault on anybody, whatever gender they are.

Does the right reverend Prelate want to intervene? Oh, I am sorry; they are leaving, for fear that it will never end.

Amendment 287 defines consent so that there is clarity about what is meant by consent in the new section of the Youth, Justice and Criminal Evidence Act 1999.

Amendment 288 is a procedural requirement. This proposed new clause would have the effect that no Section 41 evidence or questions—that is, about sexual conduct with a third party—could be admitted by a judge at trial unless there had been an application before trial in accordance with practice directions, and would ban applications being made immediately before or during the trial. It is an important procedural safeguard to ensure that the complainant will know before the trial starts what he, she or they may face.

Amendment 289 would insert a new clause to give the complainant a right of representation with legal aid, if they are financially eligible, to oppose any application to admit Section 41 material about them—that is, material about sexual conduct with a third party. This new clause would also give complainants a right of appeal to the Court of Appeal if the application is allowed in whole or in part. The new clause provides that the complainant is not compellable as a witness at the application. The purpose of these provisions is to recognise that the complainant should be treated as a party, rather than as an outsider, to the proceedings on issues of the extent to which his, her or their past is to be gone through in the trial, and it is perfectly legitimate.

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

My Lords, this is a completely different topic. Amendment 269 would

“ensure that bereaved persons and core participants at inquests and public inquiries received legal aid proportionate to the legal expenditure by any public authorities involved in the inquest or inquiry”.

It is, in effect, the equality of arms measure.

In the Hillsborough situation, people suffered an incredibly grievous wrong in respect of their loved ones, then found themselves ranged against lawyers and QCs. As a QC myself, I make it clear that there is nothing intrinsically wrong with QCs, but imagine finding yourself ranged against seven public authorities, all of which have an interest in trying to ensure that their public authority is exonerated, while the individual victims have no right to legal representation at all. They may get the benefit of discretionary funding from the Lord Chancellor, who can give that funding for inquests, but it is entirely at the discretion of a Government Minister. That is inappropriate. In relation to these sorts of cases, the right course is that where there is a big disaster, the people who are most affected should be able to appear at the inquest, which is going to affect what may happen in the future, while having equality of arms with the person or bodies against whom they will be ranged.

Amendments 270 to 274 intend to establish

“a public advocate to provide advice to representatives of the deceased after major incidents.”

So many families affected by a major incident have nowhere to go because there is no lawyer experienced in these sorts of matters. They have nobody to speak on their behalf and find, all too often, the public sector unwilling to give them help—for fear that individual members of the public sector may be making their own section of it liable to some sort of damages in court subsequently. The public advocate scheme is a means of providing support for the victims in those tragedies. I very much hope that the Government will listen, look at these amendments favourably and recognise the injustices that have occurred over the years as a result of there not being proper representation at inquests nor a public advocate to speak for the victims of these disasters. I beg to move.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to offer Green support for Amendment 269 in the name of the noble and learned Lord, Lord Falconer, to which I have attached my name. I offer support for all the amendments here. The noble and learned Lord spoke about a big group case affecting many people. I shall to a single case.

In 2014, a seven-year-old boy, Zane Gbangbola, went to sleep in his bed. He never woke up, and his father, sleeping nearby, has been forced to use a wheelchair ever since. The Fire Brigades Union, the PCS Union and many other people—including his father Kye’s doctors—were convinced that Zane was poisoned by hydrogen cyanide gas that came from a landfill site nearby, carried by floodwaters. Before this tragic event, the Environment Agency had actually protected its own staff in a nearby building with a special membrane in the foundations to ensure there was no risk of an event like this.

There was, of course, an inquest. At that inquest no fewer than six public bodies, whose actions might have been called into question, were represented by the best legal counsel money can buy—with public money. The Gbangbola family was denied legal aid, so the grieving parents, sitting in a court room and hearing the most awful possible details about their son’s death, were forced to operate with only limited legal support, with funds raised by a public appeal. As the noble and learned Lord said, the European Convention on Human Rights calls for an equality of arms in trials. There was no such equality at Zane’s inquest.

We also need to stress the public interest concern here. As was the case, tragically, in Zane’s death, we know that the world is facing new dangers. The country is facing new dangers. We need honesty and transparency about what those are. The weather that led to that flooding was linked to the climate emergency. Several years after this, Kye Gbangbola said

“we need to unlock the doors for the truth to come out”.

This is about the death of one child, but it is also about the safety of everybody. The lack of legal aid at that inquest was a factor in the truth not coming out. The family is continuing to campaign. Indeed, I was in Glasgow with them at a side event to the COP 26 climate talks. They are calling for a Zane’s Law to address weaknesses in our law that were deliberately introduced a decade ago, putting profits before human lives. This is why the seven amendments about a public advocate are terribly important. We cannot rely on families—indeed, sometimes there will not be a family—in a case where someone has died, to ensure that the courts are helping us to uncover what actually happened in the case of tragedies.

Had there been equality of arms at Zane’s inquest, we might be much further down the road to getting a change in the law that we all need to keep us safe. I strongly urge the Government to act on all of these amendments, but particularly Amendment 269 and the related amendment, not just for Zane or the Hillsborough families but for everybody.

[Baroness Newlove (Con)]

My Lords, I support this amendment. As a former Victims Commissioner, I have met too many victims who had asked for representation or legal aid and felt that their voice was not heard. They were, in their words, “bullied” by the heavies on the other side, who were rich and could pay for QCs or whatever. Again, they felt that their voice was not going to be heard.

I am talking about high-end cases here; I am talking about terrorism, bombers, women hearing their husband exploded at the other end of the phone, and still have no help from the Government. I support this amendment because now, with all the high-risk terrorism we are seeing—even with the Tunisian support that was very poor, I have to say, because there was a third party involved—we are going to lose the public coming with us and understanding what is going on. An inquest is not a courtroom as such: everybody is there, and all the families are trying to listen about their loved ones and their lives. I know from personal experience about when somebody is talking about our loved ones and yet nobody can stand up from our side to present the same quality, the same questioning.

In this day and age, I ask the Minister and the Government to have a round-table talk about how we can fix this. The inquest is such an irritant to the families, and it does not help them get past the trauma. If we cannot help them, they will not be confident to go through the system. These are high-end cases we are talking about. I know the families of Hillsborough as well, and they have gone through the mill over all these years. Did they get any justice? They have had to fight hard, tooth and nail.

I heard one woman—I will not name her—whose son heard that bomb go off on an oil rig, and the Government were still redacting and did not give the legal aid. The time has come to have an open and transparent discussion about giving the support that they quite rightly deserve.

--- Later in debate ---

[Lord Stewart of Dirleton (Con)]

My Lords, my noble friend’s personal experience and her service as Victims’ Commissioner lend force to her eloquence.

I shall go on to address the funding available for attendance at inquests, but in answer to the points just raised and to reiterate, in the vast majority of inquests the simplicity of the four questions which the coroner is obliged to seek to answer is such that legal representation and legal aid will not be necessary. In circumstances such as those my noble friend described, where there is complexity or where the competing interests are such that lawyers are briefed on behalf of agencies perhaps seeking to lay down defensive positions in the face of future litigation, it is right that there is a mechanism whereby bereaved families or bereaved individuals might be represented.

[Baroness Bennett of Manor Castle (GP)]

I thank the Minister for giving way. He said that it is right that families should be represented, but surely he would acknowledge that that has not been the case, as in the case I cited, as well as in many others where families have not been able to be represented.

The noble Baronesses, Lady Chakrabarti and Lady Newlove, focused on the families being represented and having a voice, but would not the inquisitorial process, which is supposed to arrive at the truth, be improved and more likely to get to the correct conclusion if there was a balance of arms—a balance of forces—as we have been talking about?

I apologise to the Committee: I probably should have declared my position as vice-chair on the All-Party Parliamentary Group on Legal Aid.

[Lord Stewart of Dirleton (Con)]

Ultimately, my Lords, arrival at the truth is the objective of all legal process in this area, but the inquest convened under the coroner is but a part of that overall inquiry. That the truth is the ultimate objective does not, with respect to the noble Baroness’s point, confirm that in every case there must be legal representation. I maintain that for the vast majority of inquests the questions posed—the circumstances—are not such as to oblige in the interests of justice that there be representation for all parties. The amendment to increase the scope of legal aid at inquests would run counter to that approach.

Northern Ireland Act 1998 (Section 75 —Designation of Public Authority) Order 2020

Baroness Bennett of Manor Castle Excerpts

Wednesday 8th July 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, I thank the noble and learned Lord for his detailed exposition of the statutory instrument that we are debating. I join other noble Lords in applauding the application of Section 75 duties in Northern Ireland in the IMA. I also wish to join the noble Lord, Lord Bruce, in commending the noble Lord, Lord Hain, on his long-term pursuit of justice for innocent victims and people who have suffered attacks and long-term and lifelong injuries. I look forward to the Minister’s response, particularly to the recent action of the Government in terms of judicial review. I also support the questions from the noble Lord, Lord Wood, on continuing concerns about the independence of the IMA.

I will focus chiefly on the fact that it is now less than six months before this will have to be in full operation. We will see the first problems, crises and people left trapped and unsure. This is the first time your Lordships’ House has debated this since it was made clear that the transition period would definitely be at the end of this year. Will the Minister give the House any information about the resources that the IMA will have? Will they be sufficient? We can have all the independence and brilliant people at the top of the organisation, but with 3.2 million EU citizens in the UK and perhaps quite a few UK citizens looking to move back before the end of the transition period with non-EU spouses, partners and children, who are then going to be forced to move after the transition period ends, lots of people will risk being trapped in real crisis situations, particularly given the situation with Covid-19.

Will the Minister point us to information about what estimates have been made of the demand that is going to be put on the IMA and of the chief issues that are likely to arise that will cause people to use it? We know that the settled status scheme is proving difficult for lots of people, particularly older EU and EFTA/EEA citizens and some very young citizens, including children who are not in a position to act for themselves because they may be in care. Settled status is proving difficult for them, and Covid-19 cannot have helped that situation.

Hanging over all this is the tragedy and great suffering of Windrush and the concern about the hostile environment. Will the Minister say something about the continuing thorn of the question of deportations and whether EU and other relevant citizens might potentially face deportation after 31 December?

As other noble Lords have said, we are talking about people who are very often our doctors, nurses, neighbours, friends, spouses, partners and children. We have a long and intermixed history and we are trying to untangle some very complicated threads. So we need to make sure that the IMA is adequately resourced and ready to work from day one.

Sentencing Bill [HL]

Baroness Bennett of Manor Castle Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Thursday 25th June 2020 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

My Lords, in welcoming this Bill, I am guided by the expert voices in your Lordships’ House, particularly those from the Cross Benches. As a relatively new Member of your Lordships’ House, I am well aware of the challenge of coming to terms with the detail and complexity of the fine points of law and lawmaking.

I particularly want to reflect on the words of the noble and learned Lord, Lord Judge. He referred to the legislative morass in which this Bill is trying to find some clarity. That legislative morass is not a technical issue but very much a political one, and one on which I hope I can make some useful comments. I go back to the words of the Prison Reform Trust before the 2019 election. It called on party leaders to temper their language with regard to law and order so that sensitive issues of intense public concern were not exploited but were used to contribute to a reasonable and constructive public debate. Far too often, that is not what has happened around law and order issues. Very often we have seen politicians—certainly from the largest parties—competing to appear tough on crime, perhaps with “tough on the causes of crime” added as an afterthought. There have been easy responses to awful events: the creation of a new offence or a knee-jerk promise to increase penalties. Often this is deeply confusing as well as deeply destructive.

I associate myself with the remarks of the noble Lord, Lord Harris of Haringey, about the evidence, particularly that around young men and how they are not necessarily in a position to react appropriately and should be managed differently. The fact is that our prison population has quadrupled in the past century, and half that increase has been since 1990. We have the highest rate of imprisonment in western Europe. I do not believe there is any doubt at all that that makes our society worse, for all its members and all its futures.

I particularly want to take a short moment to focus on the work of a Member of your Lordships’ House, the noble Baroness, Lady Corston, who in 2007 wrote an internationally renowned report on women prisoners. It acknowledged that women prisoners are objectively different as a population. The majority are victims of domestic abuse, 48% committed their offence in relation to someone else’s drug use, half have drug issues themselves and 25% have a problem with alcohol. Then there are the non-offending victims: only 5% of children remain in the family home when their mothers are sent to prison. So there is no doubt that we need sentences to be clear and transparent, but we also need them to be humane.