Safety of Rwanda (Asylum and Immigration) Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Wednesday 14th February 2024 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I am sorry; that is totally different, because the courts—I will give way to the noble Baroness.

[Baroness Chakrabarti (Lab)]

I think we have got to the heart of this. I am concerned about the time, not just for Members of the Committee but for the staff, just before the one-day half-term. I think perhaps the noble Lord opposite is indicating the difference he sees between, for example, property rights and humanitarian rights to refugee protection, which have been rights recognised in this country for a very long time.

[Lord Wolfson of Tredegar (Con)]

Of course they are rights that have been recognised for a very long time, but that was not the point being put to me, as I understood it. On the property point, if you have property, you have a vested right in property. The court is declaring that you always have that right. First, you do not have a vested right in asylum; it is not a right vested into you. Secondly, the Bill does not take away a vested right you have. You still have the right of asylum.

I think the noble Viscount is saying that it changes it. The question was of retrospective legislation, which is a fundamental point raised by the noble and learned Lord. The question is whether this is retrospective legislation. For the reasons I have set out, I submit that it plainly is not. I apprehend that we will come back to this. I do see the time. Unless there are any other interventions, I will pause there.

Illegal Migration Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Wednesday 7th June 2023 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I rise in support of the noble and learned Lord, Lord Etherton, whose Amendment 69 I have signed. It would require detention conditions to comply with those set out in guidelines by the United Nations High Commissioner for Refugees. I need not repeat the arguments that the Committee well understands about the United Kingdom’s historic role in the refugee convention and other aspects of the post-war human rights settlement.

Like many noble Lords in this Committee, I have been in these debates for some time, so I understand that there is some dispute on the Government Benches about the UNHCR. The UNHCR says something; they say, “So what? It is just another woke NGO”. Well, it is not. The UNHCR has a special role in the convention. It is a UN body and it was given a special role in the supervision of the refugee convention.

I simply refer noble Lords to Article 35 of the convention, headed “Co-operation of the national authorities with the United Nations”. We were an architect of the convention and a key signatory to it; I am sure that every Member in this Committee wants to abide by it. Article 35 states:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees, or any other agency of the United Nations which may succeed it, in the exercise of its functions, and shall in particular facilitate its duty of supervising the application of the provisions of this Convention”.


This body was given from the beginning the very special role of supervising the convention. That is fair enough, is it not? It cannot just be that every nation gets to interpret the convention in its own way; that would not exactly be global governance.

[Lord Wolfson of Tredegar (Con)]

Is that not precisely what the Vienna convention on the interpretation of treaties provides for: that each nation interprets it? States have to relate to and deal with the body to which the noble Baroness refers, but that is separate to the legal question of what the convention actually means. These are two distinct legal questions, are they not?

[Baroness Chakrabarti (Lab)]

Well done. Article 35 continues:

“In order to enable the Office of the High Commissioner or any other agency of the United Nations which may succeed it, to make reports to the competent organs of the United Nations, the Contracting States undertake to provide them in the appropriate form with information”.


The bottom line is that the UNHCR is not just any other body, think tank, NGO or pressure group. It is a specific organ of the United Nations that was commissioned right at the beginning, when this convention was drafted, to have a special role in its supervision. That is why I support the noble and learned Lord, Lord Etherton, in suggesting as a bare minimum that our detention provisions ought to comply with guidelines—they are only guidelines—set out by the UNHCR. We can have these lovely little Oxford Union interventions from Members opposite, but the bottom line is that if we do not comply—

[Lord Wolfson of Tredegar (Con)]

I am sorry, but this is not an Oxford Union intervention. There is a clear distinction between an obligation to co-operate with a body in the implementation of the convention and that body having a role in the interpretation of the convention. They are different legal concepts and, with great respect, the noble Baroness knows that; it is quite wrong to elide one with the other. “Interpretation” does not appear in Article 35 and is deliberately excluded.

[Baroness Chakrabarti (Lab)]

I am very grateful, obviously, to the noble Lord for his intervention. I repeat:

“The Contracting States undertake to co-operate with the Office of the United Nations High Commissioner for Refugees”.


This was the body given special status in the drafting of the very precious convention that was drafted with key instigation by the wartime generation in this country for reasons that I need not repeat.

If we do not comply with guidance from the UNHCR in relation to the detention of asylum seekers and refugees, who will? For that reason alone, I am very glad to support the noble and learned Lord, Lord Etherton.

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[Baroness Chakrabarti (Lab)]

I am grateful to the noble Baroness and the noble Lord. Acoustics are not always with me. I literally read from Article 35 and so did not use “interpret”. I used words such as “co-operate”. I think that I might have said “supervise”—I believe there is a supervisory jurisdiction. At this late hour, I really do not think that this should be a great beef between lawyers. I just say that there is a duty to co-operate with the UNHCR, and it has a special position as an organ of the UN that we set up. That is why I agree with the noble and learned Lord, Lord Etherton, that our detention policies ought to have serious regard to the guidelines from the UNHCR.

[Lord Wolfson of Tredegar (Con)]

I may have misheard, but I thought I heard “interpret”. I think that other noble Lords did as well. The Official Report will make it clear, no doubt. With great respect to the noble Baroness, in legal terms there is a million miles between a duty to co-operate and giving that other party the right to interpret. There is a huge difference between this country as a state saying that the treaty means whatever the UNHCR says it means and, on the other hand, saying that we will co-operate with the UNHCR to enable it to fulfil its obligations under the treaty but we as a state arrogate and retain the right to arrogate to ourselves in good faith and bona fide what that treaty actually means. It may sound like one is drawing fine distinctions but there is a very clear distinction, as lawyers will tell you, between the right to interpret a document, whether that be a contract or a treaty, and co-operation in the implementation of whatever that contract or treaty means.

Illegal Migration Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Wednesday 24th May 2023 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

The noble Lord is making a political point. It may be good politics or bad politics, but whether the Government want to do that or not, my focus is on Section 19 of the Human Rights Act, which is very clear:

“A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading … (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights … or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill”.


We could have a nice debate about whether the statement in the Communications Act 2003 was consistent with Section 19, but that is not my point. My point today is simply that we cannot legitimately criticise the Minister for making precisely the statement that Parliament told him to make in Section (19)(1)(b) if he cannot make a Section 19(1)(a) statement.

[Baroness Chakrabarti (Lab)]

With respect to the noble Lord, nobody is criticising the Minister for making the statement. The noble Lord is the distraction, not Section 19. We are criticising the Bill that cannot be stated as compatible. It is the legislation that we have a problem with, not the honesty of the Minister in saying, “I can’t say that I believe this to be compatible”. It might be politics, but politics is the process of legislative scrutiny. The objective of Section 19 was to force Ministers to put their money where their mouth is in the debate and to say whether they believe that this draft legislation complies. If they say, “I can’t be sure”, it is quite right for us to do what we are doing. With respect, this is smoke and mirrors and not to the substance of this Bill.

[Lord Wolfson of Tredegar (Con)]

It is certainly not smoke and mirrors. The force of the noble Baroness’s point is, “If you can’t make a Section 19(1)(a) statement, there is something irremediably bad with the Bill”. My point is that if you are legislating in a novel area, there may well be circumstances in which you cannot make a Section 19(1)(a) statement. A Section 19(1)(a) statement is a 51:49 statement that, in your view, it is compatible. If you therefore think that it is finely balanced as to whether it is, you cannot make a Section 19(1)(a) statement. It would be wrong in those circumstances for a Government to think, “I shouldn’t bring this Bill before Parliament merely because I take the view that it is 50:50”.

[Baroness Chakrabarti (Lab)]

I am grateful to the former Minister and sure that he listened carefully to how Section 19 was introduced into the deliberations of the Committee earlier, not least by the noble and learned Lord, Lord Hope. Members of the Committee have been pointing to the contradictions in the Government’s position around the compatibility of this Bill—Section 19(1)(b) on the tin and then something else in the ECHR memorandum. It is the clarity of the Government’s belief that Members of the Committee have for some hours this afternoon been looking for.

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[Lord Wolfson of Tredegar (Con)]

I started my remarks by saying that international treaties are extremely important and that we should always legislate consistently with our international obligations, except in the most unforeseen and unusual circumstances. But that is not the question I was asked by the noble Lord, Lord Hannay. We are a dualist state. That is why we should object to these amendments, which seek to incorporate treaties by the back door.

[Baroness Chakrabarti (Lab)]

As a matter of fact, the European Convention on Human Rights was incorporated by the Human Rights Act 1998, the UN Convention on the Rights of the Child was incorporated by the Children Act and so on. These particular treaties have been given special status in our domestic law. I also take some exception to the idea that Amendment 4, which everybody can see, is somehow surreptitious or “back door”. We are having this debate because, by definition, some of us want this protection very much via the front door.

Judicial Review and Courts Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for that further explanation of the point and will happily reflect on it. At the moment, I stand by the point I made a moment ago, which is that it is right in principle for the Government to be able to decide which offences are included under the new procedure. Of course, we discuss with the Lord Chief Justice and other elements of the judiciary how these offences will be managed in practice. As the noble Lord, Lord Pannick, knows, the operation of the courts is run essentially under a concordat agreement between the Lord Chancellor and the judiciary. I will look again at Hansard and go back to the discussion which somebody who was not quite my predecessor was involved in. For present purposes, that is my answer to the noble Lord.

[Baroness Chakrabarti (Lab)]

Just on that—and by the way, I did not speak earlier because the case was made so well by the noble Lord, Lord Marks, and I think it is a kindness to the Committee at this stage not to duplicate concerns and comments—to develop the point from the noble Lord, Lord Pannick, and to comment on his conversation with the Minister, it is not for the Government to decide, is it? It is not actually the Government’s position that it is for them to decide which offences are covered by the new procedure, because mercifully the Government have said that there will be parliamentary procedure and regulations. It is for Parliament to decide.

Is not the point that when Parliament looks at these regulations that are made in the future, by a future Lord Chancellor who may not take such a measured approach as the Minister is taking now in relation to which offences are to be included, Parliament would benefit from regulations that come with the advice and endorsement not just of the Government of the day but of the senior judiciary?

[Lord Wolfson of Tredegar (Con)]

I should say, first, that when I mentioned the noble Baroness in my speech, I was not making the point that she had not risen. I wanted her to appreciate that I had taken on board that she was opposing the clause. When I say “the Government”, of course I mean “the Government with the authority of Parliament”. We are looking at a Bill and that is taken as read. Ultimately, the question is: is it necessarily right for Parliament to say that we cannot proceed unless we know that the LCJ is on board? I suggest that it is quite proper in this case for Parliament and the Bill to say, “This is a power which can be exercised by the Lord Chancellor and no concurrence is necessary.” As I said to the noble Lord, Lord Pannick, I am happy to look at this point, but that is the current position which I adopt.

I was going to make one more point on Clause 4 and Amendment 29, which seeks to raise the age of eligibility for the Section 12 procedure—often referred to as “pleading guilty by post”—from 16 to 18. This procedure has been available as an alternative method of summary-only prosecution for defendants aged 16 and over since 1957. I am not aware of any issues of concern being raised in relation to under-18s during the whole of that time.

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[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments in this group relate to coroners’ inquests, and include government and non-government amendments. I will begin with those tabled by noble Lords who have spoken and then come to the government amendment at the end.

Before I do that, I should inform the Committee that the right reverend Prelate the Lord Bishop of St Albans has kindly sent me a note, because his Amendments 50A and 50B are in this group. As he is serving elsewhere, in Committee on the Building Safety Bill, he is unable to join this Committee this afternoon. I do not know whether this is normally done, but unless the Committee objects, I propose to write to him setting out substantially what I would have said had he been here and I will circulate the letter, because even though the amendments are not formally moved, the right reverend Prelate raises points which he has raised in the House on previous occasions.

[Baroness Chakrabarti (Lab)]

Subject to the views of the Committee, that sounds eminently sensible. In case it is necessary, perhaps I might say that I support those amendments and would not want to deprive the right reverend Prelate of the opportunity to bring them back to the House at a later stage.

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[Lord Wolfson of Tredegar (Con)]

I understand that, certainly from my postbag. I should say that coroners work extremely hard, but the pandemic has caused a real problem. I do not want to go back to the online discussion, but we hope that enabling people to do that sort of thing online will help. I certainly take the noble Lord’s point.

To solve this, the amendments in my name will enable a coroner to provide the registrar with the information required for the registration to take place on the basis of that information. I should make it clear that we are not introducing new duties on coroners or removing the duty on qualified informants to provide information. It is intended to be used in those exceptional circumstances where qualified informants are unable or unwilling—often for good reason, as the noble Lord, Lord Beith, said—to discharge their duties. The effect will therefore be that the death will not go unregistered. We think that about 200 of these cases happen a year. They affect the accuracy of records, but there is also the potential for fraudulent use of the identity of an unregistered deceased person, since the identity has not been closed by the death being registered. It is not quite Day of the Jackal territory, but there is potential for fraud there. We want to close that.

For those reasons, I invite noble Lords not to press their amendments and I will move mine when the time comes.

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to every Member of the Committee who participated, in particular to the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer of Thoroton, for crystallising the fundamental inequality of arms that exists in so many inquests. Regardless of jurisprudence or terminology, that is how it is and how it feels for these families.

I am grateful, too, to my noble friend Lady Chapman of Darlington for making it crystal clear that evidence that cannot be challenged is going to be a huge problem, not least for compliance with Article 2, and for reminding us of the tragic case of Laura Booth, which is in the Inquest briefing in case noble Lords want to read it at leisure. There are other tragic cases of that kind, where, but for close scrutiny and the testing of evidence that initially seemed very straightforward, some real public interest problems, whether in our hospitals or elsewhere, would not have been revealed.

I am only slightly disappointed that the very busy right reverend Prelate disappointed my hope that it would be possible for a Lord spiritual to be in two places at the same time. None the less, I am very happy to take care of his amendments and ensure that he has the opportunity to bring them back next time. I think that is the right thing to do.

The Minister will forgive me, I hope, for being disappointed in the 100% defensive rebuttal of every single concern raised in this Committee. He reminds us that coroners are judicial officers and not mere administrators; of course, he is right about that. But he says that in total rebuttal of every safeguard and gentle constraint suggested—for example, the discretion to discontinue these vital investigations.

I cannot help but point out the contrast in the Government’s approach to this part and, for example, to Clauses 1 and 2. In Clause 1 we are told that it is perfectly acceptable for the legislature to constrain judicial thinking and discretion in quite convoluted ways, but here, when we want to put the needs and concerns of families into the equation, we are told that it is somehow an inappropriate constraint on the wonderful, inquisitorial, coronial province. We are reminded that coroners are inquisitorial and not adversarial, as if these terms of art are set not in aspic but in stone. I do not really care whether these are technically inquisitorial or adversarial—you can call them “Doris” as far as I am concerned. There are vital rights and interests being explored in this jurisdiction.

I am sorry to say that I do not know whether the government position is science fiction or space fantasy. In many cases these proceedings are tantamount to very difficult quasi-adversarial proceedings, but one side is silent. One side is silent because it does not have the language and resources to put its side of the picture. This is exacerbated in cases where very defensive public authorities, understandably, are heavily represented by Silks and so on. We cannot say that the full answer to that problem will be a technical, jurisprudential definition of inquisitorial versus adversarial proceedings. That is not reality at this moment in the 21st century.

I gently ask the Minister to consider meeting some representatives of the unrivalled NGO Inquest before Report. That organisation and those working within it have done so much work over the years with a number of bereaved families. I am sure they would at least help illuminate the Minister’s understanding of what some of these most difficult inquests are like for ordinary people. That would be my request to him. None the less, for the moment—but only for the moment, because having heard from my noble friend Lady Chapman and from the Liberal Democrats, I suspect that the Committee will want to return to this group on Report, and I obviously preserve the position for the spiritual Benches opposite—I beg leave to withdraw the amendment.

Judicial Review and Courts Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I think I replied to that point in the previous group. The interests of justice test is subsumed here because you can use these remedies only where there is no good reason not to do so; in other words, if there is a good reason not to do so, you cannot use the remedies. Therefore, necessarily, every time you are considering whether to use the remedies, it is in the interests of justice to do so.

If I may repackage the noble and learned Lord’s question, it really is: why not just say, “in the interests of justice”, or have a freestanding discretion? That point was put by a number of members of the Committee and gets me back to my point that we want jurisprudence to develop, and we want the court positively to consider these remedies. This is not least because there could be cases—the music copyright case is one—where these remedies would be very helpful to third parties, while the instant parties to the case may not be too bothered whether they are used or not.

[Baroness Chakrabarti (Lab)]

Does the Minister understand that his comments about third parties are now making me feel more nervous again about proposed new section 29A(1)(b)? We are effectively opening the door to judicial legislation in relation to immunising the Secretary of State from further challenges by a whole class of people who are not currently in the court; we are therefore doing the legislative thing in removing or limiting any retrospective effect of the quashing, as opposed to just delaying the quashing for the future.

[Lord Wolfson of Tredegar (Con)]

With respect, no. The noble Baroness is looking at this in a very negative way. The whole point about the music copyright case was that the prospective-only remedy was there to protect people who have relied on the regulations. One must not look at these cases with the view that you have all these people out there with claims against the Government and the prospective-only remedy insulates the Government from all these other claims. There are lots of cases where a local authority, or the Government, or some other public body has made a decision and people have relied on it. Businesses have been set up, people have taken out bank loans and made investments. In those cases, I ask rhetorically, should all those third-party interests be disregarded merely because in the case of the claimant bringing the judicial review, his bank loan has not been drawn down yet, so he does not mind whether they are upheld, so to speak, prospectively or retrospectively?

As the noble and learned Lord, Lord Hope, said in the very first debate, there is a wide gamut of cases that come before the courts, and we have to give remedial flexibility; that is what all of this is seeking to do.

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[Baroness Chakrabarti (Lab)]

I am hugely and genuinely grateful to the Minister for that, because it cuts to the heart of my residual concern about proposed subsection 29A(1)(b). It is that the Government are thinking of circumstances—copyright and others have been cited—where granting the immediate quashing order, which may be what the applicant in the particular case is seeking, would cause all sorts of problems for other people not in the courtroom, certainly in the Government’s view. Of course, it is the job of the elected Government to think about all of those other classes. Therefore, in that case, the Government would seek to invite the court to make all sorts of detailed delineations to remove or limit any retrospective effect of the quashing, but that would be the Government inviting the judiciary into a quasi-legislative role that it is not best placed to discharge, given that it would be just the Government’s view of those wider interests, not challenged in Parliament, as the Government are.

So, although I am so grateful to the Minister for making that genuine point about the need for polycentric decision-making, there is a limit to what you can ask the court to do. Remember, this would not even be the substantive judicial review hearing; this would just be the argument about remedies.

[Lord Wolfson of Tredegar (Con)]

I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.

There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.

I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.

Nationality and Borders Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Committee stage
Tuesday 8th February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

On the first point, of course the EU sought to interpret the refugee convention for all its members. But that actually makes my point, because it is only for the members of the EU. All the other states will interpret it in their own way. If you want to hand over your interpreting power to the EU, that is fine if you are a member—but I suggest that that does not cut across my basic point.

As to the effect of leaving the EU, if we have hitherto signed up to various interpretations through EU regulations, we now have an opportunity to look at the matter afresh, as I said when I began. To go further into that point would go way beyond the scope of this group.

Finally, I come back to the question put to me by the noble Baroness, Lady Chakrabarti, about “scrapping” —I think that was the word she used last night as well—the Human Rights Act. I said last night, and I will give the same answer now, that the Human Rights Act brings into English domestic law the European Convention on Human Rights. We have reaffirmed— I did it yesterday; I will do it again now—that this Government will stay in as a signatory to the convention.

[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for that, but will he answer my question a bit more specifically? Has he instructed parliamentary counsel to begin the drafting process for the Bill that will replace, repeal or reinterpret the Human Rights Act and/or the convention on human rights?

[Lord Wolfson of Tredegar (Con)]

As a matter of policy, I am afraid I am not going to get into the discussions I have with government law officers and parliamentary counsel. The Government’s legislative programme has been set out. The Lord Chancellor, the Deputy Prime Minister and I have given evidence on this. We have made it clear that we will be staying in the European Convention on Human Rights. In so far as the burden of the noble Baroness’s challenge was that we have to be careful, because the Government are watering down rights, we are staying in the European Convention on Human Rights. Therefore—

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[Baroness Chakrabarti (Lab)]

I am grateful to the Minister for giving way. In a previous group, the noble Baroness the Minister—I was very grateful to her—sought to make distinctions between immigration and asylum protection; I think that was quite important. To be now almost resiling from that and suggesting, in answer to a previous intervention, that we are going to reinterpret the refugee convention—to respond to the millions of people who voted for Mr Johnson’s Government on the basis of controlling immigration—is a little troubling. I do not think I am alone in the Committee in being so troubled.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am surprised that anyone in a democracy is troubled by a Government listening to the people and putting forward legislation which, first, delivers on a manifesto commitment, and, secondly—as I have said and I repeat —is entirely consistent with our international law obligations. There is nothing wrong and everything right with each signatory to the refugee convention interpreting its obligations under it; we have now been around that point on several occasions.

Nationality and Borders Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Lords Hansard - Part 2 & Committee stage
Thursday 3rd February 2022 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

Let me come to that point in a second. First, let me say that I almost took it as implicit in the request from the noble and learned Lord, Lord Etherton, that the Committee would like to have the guidance, but I have heard the point made, and I will certainly pass it on. I do not want to go over points I have already made, and I think when the noble Lord looks in Hansard, he will see that I have set out quite clearly why, first, we need to have a system whereby, in particular cases, the date can be extended or adjusted, but also, secondly, why that does not undercut the principle of actually having a date and having this structure. However, I am very happy to look again at what the noble Lord has just said. If, having read it, it seems to me that I can add to what I have already said, I will; otherwise, I respectfully direct him to what I said earlier.

[Baroness Chakrabarti (Lab)]

It may be that, because it has been a long day, I have missed something, or it may be that I have jumped the gun and the Minister was about to come to this point, but I have not yet heard the justification for having Clause 25 at all.

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[Lord Wolfson of Tredegar (Con)]

In that case, I will certainly read it over the weekend. I know that those in the Home Office responsible for this area are obviously looking at the debate and will have picked up what the noble Baroness has said.

I was just dealing with Amendment 95, after which I will come to Clause 25 itself. I lost count of how many times the noble Baroness, Lady Chakrabarti, used the word “tawdry”. It really is not, if I may say so. We obviously disagree, and I will make no comparisons either to parking fines or international commercial litigation. At one point it seemed to me that the noble Baroness was saying that, on the one hand, this clause was terrible and, on the other, that this is what tribunals do in any event and we can trust them to do the right thing.

[Baroness Chakrabarti (Lab)]

I am saying that, if we trust—as I am sure the Government do—immigration officers, the Secretary of State, the First-tier Tribunal, et cetera, to be intelligent, effective operators in the system, they are by definition capable of looking at late evidence on a case-by-case, open-textured, well-reasoned basis and determining those occasions where there is a good reason and those where there is not. That goes without saying, so why do we have to have this diktat in the Bill, with “must” give it “minimal weight”? I suspect it is because, as the noble Lord, Lord Paddick, suggested, the Government are trying to dictate to the tribunals in particular what is and is not a good reason. That is the sinister aspect of this. It is also impractical, because you then have to have arguments about what is and is not a good reason. I promise the Minister that this will be litigated ad nauseam. It would be better, as he said to other noble Lords, to leave this to open-textured judgment and decision-makers who are capable of applying it.

[Lord Wolfson of Tredegar (Con)]

As regards the in terrorem threat that things will be litigated ad nauseam, I am tempted to say that that is not really a change from the current position. More substantively, and with respect, to say that the clause sets out that the tribunal “must give … minimal weight” to the evidence, as the noble Baroness just put it, is not what it does at all.

[Baroness Chakrabarti (Lab)]

It says that they have to have good reason.

[Lord Wolfson of Tredegar (Con)]

It does not do that either.

It does not say that the tribunal “must give the evidence minimal weight”; it says that the tribunal

“must, in considering it, have regard to the principle that minimal weight should be given to the evidence”.

The tribunal is perfectly entitled to say, “Well, we’ve looked at that principle. Actually, we’re not going to apply it here”—for reasons A, B and C. There is no requirement and no fettering of the tribunal; there is no compulsion that the evidence be given minimal weight. What the decision-maker has to do is have regard to the principle that minimal weight should be given to any late evidence unless there are good reasons why it is provided late.

[Baroness Chakrabarti (Lab)]

I promise that this is my final intervention on the Minister, but I do not understand why we have to have the provision at all. He is saying that it is perfectly open-textured enough, that good reasons do not have to be specified in the Bill because the Government are not going to put glosses on it or be overly prescriptive, that they can be objective good reasons or subjective good reasons, that it is only about having regard to the new principle that they are inventing et cetera. Why have this at all?

[Lord Wolfson of Tredegar (Con)]

It is because there is absolutely nothing wrong with Parliament saying to a tribunal, “We want you to have regard to this principle, but of course the final decision is yours”. We do that in other areas of the law as well. As the noble Baroness, Lady Ludford, kindly said, I gave evidence yesterday to her committee in what I hope was an interesting session. One thing we talked about was Section 12 of the Human Rights Act. The layout there was not a million miles away from this. It too gives a very clear direction to the court, but ultimately it is the court’s decision. I find it slightly surprising that, on the one hand, the noble Baroness is saying that this is tawdry and dreadful but, on the other, is saying, “Actually, you don’t need it all because the same result is going to eventuate”. Both points cannot be right at the same time.

As we all know, the asylum and the legal systems in this regard are overwhelmed. We see repeated unmeritorious claims at the very last minute designed to delay removal. This clause is a proper part of an overall system to make sure that we give protection to those who need it—I always put that first; that is the most important thing—and at the same time to identify unmeritorious claims.

Finally, Amendment 137 in the name of the noble Lord, Lord Dubs, and spoken to by the noble Baroness, Lady Ludford, seeks to implement a recommendation made by the JCHR in its ninth report. Of course, we welcome the JCHR’s positive comments on Clause 45. Migrants who are subject to removal must be given sufficient opportunity to access justice. The clause improves and enhances the status quo. It gives a statutory guarantee that migrants will receive a minimum notice period of five working days. As a result, some migrants will get more time compared to the current policy. It introduces a separate statutory requirement for a notice of departure details to be provided to the migrant before removal.

On a practical level, Clause 45 will be supplemented by policy guidance that accords further respect to the common-law right to access to justice. I say respectfully that it is not clear to me what deficiency in Clause 45 Amendment 137 tries to address. I would genuinely welcome engagement from the noble Baroness and the noble Lord, Lord Dubs, to identify what offending aspects of Clause 45 there may be and how Amendment 137 would solve them.

Therefore, having taken probably too much of the Committee’s time already, I invite the various noble Lords to consider not pressing their amendments.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Chakrabarti and Lord Wolfson of Tredegar

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Baroness Chakrabarti (Lab)]

Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?

Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested— impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?

[Lord Wolfson of Tredegar (Con)]

Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.

There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is

“not to engage in specified conduct”.

That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.

The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.

I do not think I did so before, but I invite the noble Lord to withdraw his amendment.

[Lord Wolfson of Tredegar (Con)]

As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.

[Baroness Chakrabarti (Lab)]

Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?

I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

[Baroness Chakrabarti (Lab)]

I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.

[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.