Nationality and Borders Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments
Tuesday 26th April 2022 Lords Chamber

[Baroness Neville-Rolfe (Con)]

My Lords, I shall speak briefly—although I did think my noble friend Lord Horam, having been an MP, had a common-sense perspective.

I do not agree with Motion D1. The proposed right to work after six months here would be a significant pull factor, in addition to those already outlined by my noble friend Lady Stroud. It could even undermine the points-based system that is already leading to the UK welcoming many more people and more students now that Covid is largely behind us.

As noble Lords will recall, my main concern during the passage of the Bill has been the constantly expanding numbers of people arriving across the channel in small boats, sometimes with tragic consequences. The Rwanda proposal is a brave attempt to discourage the large number of young men, resident in France—which is a free country—who wish to come to the UK, mainly for economic reasons. Sadly, the vociferous critics of this proposal, some of whom we have heard from today, have no alternatives to propose. So I shall be supporting the Government today. I thank the Minister for all she has done to engage and for doing her best to progress this obviously difficult Bill.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I rise with some hesitancy because I feel I am likely to be chastised for rambling, saying the wrong thing and going on too long. But let me see if I can entertain you.

I think that this is a very important and serious moment in a discussion on a very important and serious matter. I do not feel that this Bill will resolve it. I have been critical throughout on a range of issues and I feel that the Government have wasted opportunities —but I am not going to remind noble Lords of that.

At this point in the passage of the Bill, having listened to the considerations in the other place, we should recognise with a certain humility that the failure of the Government or Parliament to deal with the arrival by irregular routes of so many people is seen by so many citizens of this country as making a mockery of border control. This has led people to welcome the Rwanda solution as “At least somebody is trying to do something”. People will ask, “What would you do about the boats crossing the channel?” It is fair enough for people to say that, if something appears to be a deterrent, maybe we should try it.

As it happens, I agree with the noble Lord, Lord Horam, that there are not enough legal routes. I would like to open up a debate about more economic migration for unskilled workers. This might not go down well with my fellow citizens, but I should like to try to win that argument. I am fed up with having to describe people who want to come into this country as asylum seekers, when I know that many of them want a better standard of living—and why should they not have it? I defend them.

But we are not even having this debate. In this House, all the emphasis is on international obligations and the rule of law. There is little discussion about our obligations to the sovereignty of this country or the rights of British citizens of all ethnicities who worry about the fact that borders are not controlled. Perhaps I may remind noble Lords who are sighing that in a different context people are perfectly happy to grandstand about nation states, national sovereignty and the importance of border control—but that is only when you are talking about Ukraine. This is a different question.

On the Rwanda scheme, while I do not think that subcontracting our responsibilities to refugees to another country is against the nature of God, I actually do not like it. It is largely a cowardly decision. Despite what I have said, I would not choose this method. Over many years I have argued against such an approach, because I have always thought that any organisation that outsources or subcontracts its obligations on migration—particularly to heavily beleaguered countries—to police its borders on their behalf is washing their hands of a problem that they should tackle.

When I was criticising other places for doing this, I was criticising the EU—fortress Europe—which, for decades, has had a history of dumping asylum seekers on its non-EU neighbours. In 2016, the EU signed a deal with Turkey in exchange for £6 billion. President Erdoğan—that democrat—promised to stop Syrian refugees crossing the Turkish border into Greece and Bulgaria, and anyone found to have entered Greece was illegally deported to Turkey. The EU’s outsourcing of its migrant policy to, first, Colonel Gaddafi and, when he died, to warlords and militias or EU-funded Libyan detention centres has been a humanitarian disaster with torture and slavery at its heart. As it happens, Rwanda is not in that category, but I am always nervous about outsourcing to poor African countries that need the money; it seems unsavoury and cowardly. The reason these policies, which I feel avoid difficult problems, are greeted as they are by people is that they want something to be done. It equally avoids the problem and washes our hands of it to describe everyone in small boats as genuine refugees, and anyone who does not say that is seen as unkind. It also avoids the problem when you do not have an honest conversation about economic migration. It is equally cowardly and indulging in moral grandstanding to imply that “evil Tories” have turned into Nazis because they are actually putting forward a policy when no one knows what other policy to put forward. This does not help improve the level of debate about a very difficult situation.

Finally, and briefly, I support Motion D1, on the right to work, because it is ridiculous that we do not encourage people to have the right to work. In this instance, when the Government say that all claims should be settled within six months, I say to them: if they could get all the claims of the tens of thousands of people settled in a matter of months, we might not have a crisis where people say, “Bring in the Rwanda situation”. The claims go on and on for years and no one really trusts the processes to be done efficiently by Home Office civil servants in the background—no disrespect intended—so people sit around unproductively for years. For those who think that this would mean that they might undermine the wages and salaries of British citizens and workers, which is always a concern, let me tell noble Lords that, when they are sitting around for months and years, most are working but they are just working on the black market. That is perfectly legitimate because we will not let them work responsibly. Alternatively, if they are not working, they are sitting around doing nothing for years and years. That is not a very positive contribution to the UK, even if you are going to ask them to leave after their asylum status has been assessed eventually. I urge the Government, in this instance, to reconsider.

[Lord Kirkhope of Harrogate (Con)]

My Lords, I feel it necessary to say a few words because I was the Member responsible for bringing the amendments on offshoring to the House’s attention. I do not intend to make another Second Reading speech, because this not Second Reading. I do not intend to repeat the speech I gave when I introduced amendments in Committee. I am still opposed to the whole question of offshoring, particularly to Rwanda, for the reasons I have already given. I believe that it is inappropriate, legally dubious and very expensive, and I do not believe that it will have the effect, as is argued, of deterring the traffickers who should be dealt with in a harsh manner.

The other end of this place has twice now made it very clear that it does not support the wisdom that has come from this House. There is a constitutional issue here. Ping-pong is what it is; I believe that the will of the other place will prevail. As we have argued so forcefully, the responsibility for these actions must be laid squarely now on the shoulders of our friends in the other place—the Conservative MPs in particular and the Government—and, on that basis, I rest my position.

Mr Mike Veale

Baroness Fox of Buckley Excerpts

Thursday 7th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

I note my noble friend’s comments. There is a process ongoing, and it would be wrong for me to opine on that process other than to say that it is ongoing. The Home Secretary has herself initiated a review into the IOPC, which will be commencing shortly, but I must stress that the police are operationally independent of the Home Office.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, if I may say so to the Minister, the sense of urgency from the House, in preference to what is happening in real life, is partly due to the police having created a mood of taking false allegations seriously and the undoing of that mood not being taken seriously. Does she recognise that those false allegations make it harder for real allegations to have credibility? That is why it is so important that this is not shoved down the road. In all seriousness, why are PCCs bringing in outside consultants and strategic advisers at any level? Would she at least tell us that this is a waste of time, part of a bureaucratic state and lack of responsibility and accountability?

[Baroness Williams of Trafford (Con)]

I think the noble Baroness makes a very good point about false allegations. On the other hand, we must be mindful that allegations that are brought forward to the police must be thoroughly investigated. Clearly, there have been many convictions for non-recent child sex abuse. She asked me another question, which I cannot remember—

Live Facial Recognition: Police Guidance

Baroness Fox of Buckley Excerpts

Monday 4th April 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

The Bridges case tested this; it went to the courts. As the noble Lord says, it is absolutely important that the police comply with the public sector equality duty to maintain that public confidence. There have been various tests for evidence of bias; SWP and the Met have found no evidence of bias in their algorithms.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, we should remember that the reassurances from the Minister fall after we had a very lively debate in this House about the College of Policing’s guidance on non-crime hate incidents. Due to the campaigns of groups like Fair Cop, Free Speech Union and Big Brother Watch, the powers have now been rolled back; they were being abused and that was recognised. Is the Minister in any way worried about enabling guidance that gives the police huge powers to survey and criminalise non-crime harms of any sort, hate or otherwise? Secondly, the number of live facial recognition watchlists has gone up from 42 in 2017 to 5,000 now. Is that overreach, success or abuse? Who decides, when on those watchlists will be victims or witnesses?

[Baroness Williams of Trafford (Con)]

My Lords, I reassure the noble Baroness that the people who can be on watchlists include those wanted by the courts or subject to bail conditions or other restrictions that would be breached if they were at that location, as well as other suspects; and they may indeed include vulnerable people. If my relative was missing and I could avail of this technology, I would be very grateful for its use.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments
Thursday 31st March 2022 Lords Chamber

[Lord Cormack (Con)]

My Lords, I intervene briefly, partly because the noble Lord, Lord Paddick, was kind enough to refer to an earlier speech that I had made. I congratulate the noble Lords, Lord Coaker and Lord Russell, who have been able to move things forward in an acceptable way, but I think there comes a point where this House has to have very real regard for its constitutional position vis-à-vis the other place. We were justified in asking the other place to think again and, I believe, justified in asking it to think yet again.

I was approached last week by two Conservative Back-Benchers—I will not name them—and they were keen that we should give them another opportunity to think again, which we did. But the fact is that they have not thought again, not by a majority. Some may have changed their votes, but they did not change the position of the other place. It is my reluctant view, particularly on the noise issue, which I think is rather preposterous, that we should now yield to the other place, but if ever a Bill called for post-legislative scrutiny to examine closely how it plays out on the streets and in the public squares, this is it. I hope there will be a proper opportunity to keep these matters under review, but we should have a mind for our constitutional position, and have regard for the fact that we are not the elected House and there is a point beyond which we should not go.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I think the noble Lord, Lord Cormack, is right to raise the important point about our constitutional obligations. I am tentative about what I am going to say because I am anxious not to act in defiance of an elected Chamber, not just for constitutional reasons but because democracy is very valuable, and we should have modesty in relation to our role in this place. However, I do feel that, at the very least, the Government are obliged to untangle some serious confusion about why the legislation in relation to protest is even necessary.

When it was originally introduced, there were grandiose claims that this was the Government responding to public concerns—a real clamour from the public—about dealing with new forms of protest. It is true that there has been a lot of anger in the public realm about new forms of protest. Anybody who objected to the amendments tabled by the Government was dismissed as “ignoring voters’ concerns”—just by objecting, in effect, they were being anti-democratic. Yet now the Minister comes back here and suggests that, in relation to the noise trigger, for example, it is a just a modest update of the law and it will not be used very often. It seems to me that the original motivation for these clauses has been lost, and we have ended up with a disproportionate and unnecessary commitment by the Government to deal with a non-problem.

There is perhaps some confusion because earlier this week, as people will have read in the newspaper, a mum was banned from driving for what was described as “nudging” some Insulate Britain protesters. She was trying to get her 11 year-old to school and was exasperated that the protesters would not move, and that the police were not acting to remove them. There was some popular backlash to the fact that this driver was the person who was prosecuted, and at a meeting I talked to people who said, “Well, the mum is not guilty of dangerous driving. The problem here was the failure of the police to police the protest.” They went on to say, “At least the Government are acting and bringing in a new law that will deal with this sort of thing.” When I explained the nature of the new laws that were being brought in, in relation to noise and static assemblies, they said, “What’s the good of that? That won’t deal with the problem of the mum and the motorway and the protester”, and they are right.

Despite reservations, I support the noble Lords, Lord Coaker and Lord Paddick, in the amended amendments that they have brought back, taking on board the modest comments that have been made. I think that these anti-protest clauses are being mis-sold to the public, who, when it is explained to them, do not see any connection between their clamour and these clauses being brought in by the Government.

If there is an issue with protest, it is possibly that the police have not consistently policed protests that have happened over the last few years with the powers that they have, and there is public concern about that. It seems to me that both these clauses, as illustrated by the points made from the Front Bench, will make the police’s job even more complicated and will compromise them politically because they will be accused of subjective interpretations of what is “too noisy” and what is the threat of a static demonstration. I think the Government will inadvertently help to politicise the police, and make the situation of protests more confusing, and they are not doing what I think they originally wanted to do, which was to assure the public that their concerns about new forms of protest would be honoured in legislation. These parts of the Bill do nothing useful for anyone.

[Lord Deben (Con)]

My Lords, I do think that we ought to consider carefully what my noble friend Lord Cormack said, but it might lead one to a different conclusion. This House is increasingly treated as if it does not really matter at all. The Government are not taking seriously very simple suggestions, when making them is our job—suggestions to make Acts work properly. Today we have had an example of what the Government can do. I thought the noble Lord, Lord Russell, put that extremely well. The Government have recognised that the sensible, continuous pressure of the House of Lords has brought them to make alterations—not exactly as the noble Lord would like, but a good way in that direction. It is notable that it has taken us all this time to do it.

What worries me—I say to my noble friend Lord Cormack that this is a serious constitutional matter—is that the deal works only if the House of Lords believes that its debates and discussions are useful and taken into account by government. What I have seen here is wholly different. This is nothing to do with my noble friend Lady Williams; it is to do with the Government as a whole. When I was Secretary of State, I would say to my Lords Minister, “These are the five things I need. Those are the 10 things I’d like to have, but if their Lordships produce good arguments for other things, then you must give way to them, because that is the purpose”. What Lords Minister today is able to do that? Yet that was the deal; that was why we were here. This is a really serious issue. It is no good the Government saying in the end, “Well, we’ll just use the majority in the House of Commons to shut you up”, when the arguments we have been bringing forward are not great arguments of state or great arguments which clash; they are about making the law work.

The other change that has taken place in the House of Commons is that Members there do not debate these Bills any longer. They do not have the hours that we used to have. When I was a Member of that House, we used to have to have 100 hours of debate before you could get a guillotine. Now we do not have to have anything like that; guillotines are automatic. So if this House does not do its job and discuss these things in detail, they will not be discussed at all. That is the constitutional issue we face today.

I will address only the one thing which I think is very clear. It is incomprehensible to have a law which gives the police the right to stop a protest because it might be too noisy. The Notes of course make it ludicrous. I am very worried about the domestic arrangements of the noble Lord, Lord Coaker, if the only thing he can discuss with his wife is the laws as presented by this Government. If I started to discuss those with my wife, I think my domestic arrangements would be very unsuitable. I merely say that the reason you go on a protest is to draw attention to something. The noble Lord rightly said, and I think I said it myself when I intervened previously, that the more popular the cause, the more likely it is that there will be noise. If I had a protest about the unfair treatment of chihuahuas, I might not get many people with me and I probably would not be stopped—but a protest on, for example, the unsatisfactory dealings with Ukrainians coming to this country might raise huge numbers. Do the chihuahuas get a campaign but the Ukrainians do not—and who makes that decision?

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments & Lords Hansard - Part 2
Tuesday 22nd March 2022 Lords Chamber

[Lord Paddick (LD)]

My Lords, I will speak to my Motion F2 and the other amendments in this group. I start by joining the Minister in paying tribute to the selfless actions of PC Keith Palmer, who tragically died five years ago today.

I apologise for the length of my remarks, but there are numerous important issues contained in this group. I promise not to spend an average of more than two minutes on each Motion. There are few subjects on which I am an expert, but the policing of public order is one. I was one of a small cadre of advanced trained public order senior officers, and I have extensive experience of policing events. I remind the House that the majority of police forces outside London told HMICFRS that they did not need new public order legislation, and that the limiting factor in policing protests was the number of public-order-trained police officers they had to police protests. A whistleblower who worked for HMICFRS said that the conclusions in its review of public order policing did not reflect the evidence that the inspectorate had gathered. Having read the report in full, I agree. There is no justification for more public order legislation.

In relation to Motion E, the police already have powers to impose any conditions necessary—including an outright ban—on public processions, if a senior police officer reasonably believes that it will result in serious public disorder, serious damage to property or serious disruption to the life of the community, or if the purpose is to intimidate others. Adding a noise trigger to those powers will do more harm than good. As I said in Committee, from my experience, the more conditions you impose on a procession, the more likely those conditions are to be resisted and, therefore, the more police officers you will need to enforce them. As I have said, police forces already say that they do not have enough public-order-trained police officers.

A peaceful protest with no anticipated violent infiltrators and an agreed route—however large—can be policed with a minimum number of police officers and a lot of traffic cones and miles of white tape. Imposing conditions which the organisers are resisting is likely to require between double and five times the number of police officers. This is because confrontation must be anticipated, and the conditions may have to be imposed by force—such as a march wanting to take a different route. An outright ban on a protest, as well as being unlikely to be successful—as we saw with the Sarah Everard vigil on Clapham Common—requires about 10 times as many police officers as are required for a compliant, peaceful demonstration. How many police officers would it have taken to police the Sarah Everard vigil, in the middle of a common, if there had been agreement between the police and the organisers? The more conditions which can be imposed, and the more draconian those conditions, the bigger the drain will be on already overstretched police resources.

The second issue is the impact on trust and confidence in the police, as the noble Baroness, Lady Jones of Moulsecoomb, has just said. The impact of the policing of the Sarah Everard vigil was hugely negative, and the government proposals will simply increase the potential for, and frequency of, such scenes. By banning some demonstrations on the basis of anticipated noise, and not others, the police will be subjected to accusations that they are being political rather than practical. They will be accused of being selective about which protests can take place for political reasons—such as banning demonstrations against war, as they are likely to be enormous and noisy, but allowing demonstrations in favour of war to go ahead, as they are not likely to be very well supported, to take a Russian example. Such a change in the law is likely to draw the police reputation into even more disrepute. In addition, I ask how many times the business of this House or the other place has been disrupted because of noise by protestors. I suggest none —and I do not believe that the House has double glazing. In any event, the police can always divert disruptive demonstrations away from sensitive areas. This change—the noise trigger—is unnecessary and damaging, and we will be voting to support the Labour amendments.

Motion F is about maintaining the current position, where the police can impose conditions on those holding an assembly, a static protest or a meeting but cannot ban it altogether. The Government argue that their proposals simply bring assemblies into line with the powers that the police have in relation to processions, but there are very good reasons why the two should be treated differently.

As I said in Committee, on 13 January 1986 in the House of Commons, the then Conservative Home Secretary, later Lord Hurd of Westwell, explained why processions were being treated differently from assemblies:

“We stopped short of a power to ban”


assemblies

“because we believed that that would be an excessive limit on the right of assembly and freedom of speech. For this reason, clause 14 does not permit the police to impose conditions changing the date and time of an assembly.”—[Official Report, Commons, 13/1/1986; col. 797.]

We agree, and the effect of my amendment is to achieve the same result.

Already, if a senior police officer reasonably believes that an assembly may result in serious public disorder, serious damage to property or serious disruption to the life of a community, or that the purpose of the assembly is to intimidate others, he or she can, under existing legislation, impose conditions on where the assembly takes place; tell an existing assembly to move somewhere else; limit how long it goes on for; and/or limit the numbers attending. The wording of my Amendment 80G in Motion F2 is different from simply insisting on the amendment we made to remove the new provision proposed by the Government on Report —as Motion F1 in the name of the noble Baroness, Lady Jones of Moulsecoomb, does—but the effect is the same.

The only thing the police cannot do under existing legislation is to ban a static protest altogether. The police already have all the tools they need to deal with unlawful assemblies, but to give the police the power to stop people protesting at all smacks of Putin’s Russia, not the United Kingdom of Great Britain and Northern Ireland. I will seek the opinion of the House on Amendment 80G in Motion F2.

On Motion G, we share the concerns of others that all large demonstrations that have the potential to spill over into the road and, either by accident or design, impede vehicular access to Parliament could be banned even when Parliament is not sitting. We believe that this is legislative overreach, relying as it does on the discretion of the police to enforce it or not. However, we do not agree that the police should be able to give permission to allow entrances to Parliament to be blocked when Parliament is in session, so we do not insist on Lords Amendment 82.

On Motion H, we share the concerns of others that those who engage in peaceful sit-down protests, however short the duration, should face the potential penalty of imprisonment for highway obstruction where previously they could have been only fined. As we saw with the Insulate Britain protests, existing legislation, including the application for and enforcement of injunctions, can be successfully used to deal with persistent offenders, including imprisonment for those who breach injunctions. However, with the undertaking given by the Minister at the Dispatch Box that imprisonment is intended to be used only in the most egregious cases, we hope that this increased penalty does not have the chilling effect it may otherwise have done on peaceful protest.

On Motion N, we are grateful to the noble Lord, Lord Coaker, for raising the issue and for the Government’s response.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I regret that we heard the Home Secretary and now the Minister accept the principle of the Opposition’s fast-track public space protection orders in relation to Motion H and use that to justify broader anti-protest amendments as a balance in protecting non-protesters. I regret it but I am not surprised. The danger of advocating any measures that strengthen anti-protest measures is that it sets a tone that suggests that some protesters are good and some are bad, which politicises a general and universal right that I think we should defend. Putting that to one side, I want to oppose the Government’s doubling-down on a noise trigger and follow on particularly from the remarks made by the noble Baroness, Lady Jones, and others who have expressed their opposition so well.

I want to nod to the democratic dilemma of this ping-pong and whether we are actually blocking democracy. When summing up the rejection of the second tranche of anti-protest amendments on Report, the noble Baroness, Lady Williams, chided all of us who opposed them for ignoring the public’s demand that authorities deal with new forms of protest activities such as those we have seen used by Extinction Rebellion and its offspring, such as Insulate Britain.

I disagreed that those amendments would have dealt with those new forms of protest. I thought they were so broad as to sweep up all and any protests, including anyone who might have wanted to protest against net zero, to take an example of a different political side. The state also already has huge powers, whether the Emergency Workers (Obstruction) Act or the Public Order Act, as we have heard, that could have been used to deal with these forms of protest which are a particular nuisance, as the public would have it. Despite that, I felt the Government were at least responding to a particular form of protest about which there has been some public agitation and concern. Therefore, that chiding was listened to.

But now, here we are with government amendments on protest that bear absolutely no relation to the Home Office’s motivation on new forms of protest. I do not think the Government have a democratic mandate for these amendments. Fundamental and foundational democratic rights, such as the right to assemble or protest or the right to free speech, should be protected by an iron curtain. If there is any attempt to undermine them, the presumption must rest with the Government to justify in absolutely clear terms, with a sense of the absolutely exceptional reasons for the proposed changes, any more draconian measures being brought in.

It just does not add up. As I have noticed before, even these new types of protest that apparently upset the public are often silent, so the noise trigger does not apply to them in any way whatever. The authorities should consider proposing accruing further power when limiting the right to assembly, and ultimately the right to free speech, only ever in exceptional circumstances. In this instance, those exceptional circumstances are just not there.

Even more galling is the smoke and mirrors of posing these proposals as protecting the public from the consequences of protest. The public are described as “non-protesters”; as I think the noble Baroness, Lady Jones, pointed out, this turns the public into two different groups of people, but actually the public are the people who go on protests. They might not go on all of them all the time, but it is their right as the public that we are talking about. There is an Alice in Wonderland approach here that gets the issues upside-down and implies that the Government are far removed from the reality that free protests have been crucial for the public over centuries. The denial of that right, whether in Putin’s Russia or China’s Hong Kong, should be a visceral reminder to us here of why protest —warts and all—matters.

Of course not all protests are popular. Many of the modern protests I have mentioned, such as those by Extinction Rebellion, I do not support and they irritate me but, as with all fundamental democratic rights—free speech, free association and so on—it does not matter whether they are annoying, unpleasant or objectionable, or even if those demonstrations are directed in a hostile way against what you believe to be true.

We cannot pick and choose which speech or which protest we agree with and then endorse only the ones that we like. We have to make sure that we do not let those kinds of political prejudices get in the way. We are bound to feel uncomfortable at times when people protest for things that we disagree with, but that is freedom for you. It has never been claimed that living in a free society is safe and cosy. It is designed to make you, on occasion, feel uncomfortable. But there are principles here. As the Court of Appeal notes:

“The right to protest becomes effectively worthless if the protesters’ choice of ‘when and where’ to protest is not respected as far as possible”,


and I stand by that.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Consideration of Commons amendments & Lords Hansard - Part 1
Tuesday 22nd March 2022 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the noble Lord, Lord Russell. I am glad that he referred to the fact that Scotland had commissioned a report on this. Indeed, the report, which I chaired the working group to complete, took the same view as the Law Commission of England and Wales, in that we did not suggest that there should be a hate crime relating to sex or gender. In fact, we felt that misogyny is different in its nature and that the hate crime framework is not an appropriate way to deal with the problem.

I voted for the amendment from the noble Baroness, Lady Newlove, because nothing else seems to be on offer at the moment in England and Wales, but Scotland is looking at the creation of misogyny legislation. That is not because misogyny should be criminalised, because ways of thinking should never be criminalised. I have said that in this House before. I spoke only last Thursday in the International Women’s Day debate, in which I described how important it is to protect ways of thinking, because in our forum internum is our creativity, imagination and the ways in which we solve the world’s problems. Unfortunately, it is also the seat of the rather negative sentiments that people might feel, such as hatred. It is the actions that flow from that way of thinking that one has to look at and see whether they are appropriately criminalised.

In this House, we repeatedly have debates about the failure to prosecute rape, about domestic violence, stalking, revenge porn and so on. These continue to be insoluble and difficult to prosecute because of the mindsets of many of the decision-makers—even police officers on the ground, those prosecuting and making decisions about prosecuting, and those within our courtrooms. Unless we deal with this way of thinking in our society, we will continue to have these problems. I say that as someone who has practised at the Bar for more decades than I care to count. I have written about this and studied it. I have spent time looking at other jurisdictions, all of which have the same problems. Misogyny is a problem at the base of all this. Unless you address it seriously, you will not address the problems of how we deal with this continuing flourishing of crime against women and girls.

I urge the Government—any Government—to address misogyny. Our world is filled with it; it is a serious problem, and the way to address it is by trying to shift the dial among those who make the decisions to make them address their own way of thinking. That is what we sought to do in the working group that worked on this in Scotland. I urge all noble Lords to read the recommendations we made, because it is a serious piece of work. It is not knee-jerk or about saying, “Let’s just draw down the hate crime stuff”, because we are talking about what happens to 52% of our population. There is hardly a woman who will not be able to describe having been harassed, spoken to in unacceptable ways, degraded, humiliated or dehumanised at some point in her lifetime. That is what women are complaining of, and it is every woman, so let us have that in mind.

I heard what the Minister said about seeking to address this seriously. The Law Commission said that it was not within its remit to look at whether there should be a public harassment offence. We decided on having a public misogyny harassment offence and did not make it simply about sexual harassment, because the harassment is not of a sexual nature for older women; it is not the saying of the gross things that we have heard about from so many women.

What has happened in our society, and the reason why this is so urgent now, is that the internet—social media—has disinhibited people to say things that they would normally keep to themselves, even if they did have those intents on some women. Even if they did want to degrade and humiliate women, they would keep it to themselves. However, the internet has allowed people to pour this stuff out and it is translated on to the street. What used to be only online five years ago is now happening at the bus stop.

I want people to have this in mind; it is not some trivial matter. Noble Lords must see the enormity of the problem now: the stuff that is said to young women coming out of student unions, pubs and clubs would make men in this Chamber ashamed of their own gender—their own sex. Something has to be done about it. It is very different from what is experienced by men, so let us not make this mad equivalence, as though men at the end of their night in the pub say to each other, “Charlie, text me when you get home.” Men do not do that, because they do not have the same fear built into them from the age of nine that somehow there is something fearful out there, and it takes male form. That is the problem for girls and women: they are brought up knowing that there is something to be afraid of.

We really have to take this seriously. I support what the noble Lord, Lord Russell, has asked us to do because it is a signal to the women out there that we take it seriously. Women came in front of our commission and said that something has to be done. It may be that, in the longer term, we will have to introduce a misogyny Bill, like in Scotland. We advocated that where there is an offence, such as assault, threatening behaviour or criminal damage, judges can enhance the sentence so that there is an aggravation. It should not be inside a hate crime Bill, because it is different.

Most men do not hate women, but somehow from boyhood they breathe in this sense of entitlement and now feel entitled to say publicly things to women that noble Lords would not believe. Women who are parliamentarians, who write in newspapers or are campaign leaders receive online and now offline the most egregious threats to be raped or killed, which put them in fear. Is it any wonder, therefore, that women do not want to take part in public life or step forward to ask for equal pay or an improvement in their status in the workplace? They are undermined in their self-confidence and self-worth. We have to do something about it.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I disagree with this amendment, but I agree with one part, at least, of what the noble Baroness, Lady Kennedy, just said: any woman will indeed have heard the vile abuse that is spewed out online and can go offline to the bus stop, as she indicated. There is a coarsening of what is said to women, but that is my challenge: although it is vile, legislation to deal with what is said to women could well be a serious challenge to free speech.

Free speech matters because an emphasis on the cause of women’s safety could well be, and some women certainly believe so, at odds with the cause of women’s freedom and liberation. Despite everything, if we are going to say that words matter, by constantly talking about misogyny as a problem that is so rife in society we are, as I have said, in danger of frightening young women into believing that misogyny is indeed everywhere and that all men are misogynists and so on, so I want some caution here.

Nationality and Borders Bill

Baroness Fox of Buckley Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[The Lord Bishop of Durham]

My Lords, I support Amendment 64A, in the name of the noble Baroness, Lady Neuberger, to which I have added my name. I declare my interests in relation to both RAMP and Reset as set out in the register. I am very grateful to the noble Baronesses, Lady Neuberger and Lady Lister, and the noble and learned Baroness, Lady Butler-Sloss, for outlining all the arguments for why this amendment is the right route to take. On Amendment 64, I hear the words about safeguarding but it is a dangerous route to take.

The needs of children have been starkly left unaddressed in so many areas of the Bill. The policies proposed to determine the age of the child are particularly concerning. The child and their best interests, rather than deterrence, must be the starting point in designing these policies. I support the amendment because it is imperative that such assessments are up to standard and based on scientific evidence. We should be seeing help for local authorities to improve their practice through multiagency working so that social workers conduct these assessments and that they are better supported with appropriate funding and training. Making the process stricter will lead to more children being treated as adults. This is extremely concerning given that they will then be placed alone in adult accommodation, with no support or safeguarding.

We have been assured that they will have the recourse of appeal at the tribunal. However, as we are hearing in other debates, the focus of the Home Office must be to get decisions right correctly at the first instance in a timely manner. We should not be introducing policies which will add to backlogs and lead to lengthy appeals. Our tribunal system does not need this, and neither do the children. I simply support this amendment, which sets out what an expert and fair age assessment should look like from the expertise of a coalition of more than 60 organisations, all of them professional, in this field.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I veer between Amendments 64 and—unhelpfully—64A on age verification but what is important is that we have a trustworthy system. That is crucial; otherwise, we are in danger of fuelling cynicism and doubt about the whole system of refugee status.

We heard during Questions about the overwhelming generosity of UK citizens welcoming people from Ukraine. The broad public enthusiasm has been well noted, but I am afraid that the Home Office’s seeming ability to act speedily and with urgency is rather doubted. People are frustrated when they hear about things such as visa offices in Warsaw shutting up shop at 5 pm and closing over the weekend as though this is a kind of normal situation. There is a broad concern that, potentially, behind the scenes we do not trust the processes or the bureaucracy, and I think that includes age checks just as much as it includes allowing people to come to the UK, such as in the Ukraine situation.

One of the things that worries me is the sources of cynicism about the whole refugee process. The public feel that there is no control, and that if people declare themselves to be refugees when they arrive by boat, or declare that they are children, this will be accepted at face value and in good faith. The public do not want to feel that they are being taken for a mug. Age assessment is valid. Of course, doing so cruelly or insensitively is not welcome and would be terrible. If it is not the case that dentistry is the right scientific method, fine, but the principle surely is that we check the age of those who say that they are children. That is an important principle. Use whatever scientific method you want and be as kind as you want, but do not just say to the British public that anybody who challenges this is being cruel to children, because that is unfair. The unintended consequence of creating an impression that the process is not fair is a backlash whereby people start saying that they do not trust any of it. We know that the age issue is of some concern.

This is not a blame game, by the way. I realise that if I was a 21-year-old Syrian lad trying to get into the UK, I would say that I was 16. I do not blame anyone for that, and I understand it. Why wouldn’t you? I say good luck to them, in some ways, for trying. It is just that we as legislators are meant to be coming up with a system that the British public feel they can trust and that controls the borders. The inference that anyone who wants to tighten up the system does not care about children or does not care about people suffering in war zones is unfair and a misrepresentation.

[Baroness Shackleton of Belgravia (Con)]

My Lords, I rise to speak in favour of Amendment 64A, tabled by the noble Baroness, Lady Neuberger, in relation to the testing of children who may or may not be of the correct age. I think that everybody is united in believing that illegitimate people holding themselves up as children is wrong. However, how that gets assessed needs careful consideration. Can the Government think again as to whether the correct people for doing this investigation and the methods that they use, so movingly put, should be deployed by the Home Office, when local authorities have the equipment and the expertise to do this in a sensitive way which protects both parties? It is not okay for a minor to undergo treatment that adds to trauma, any more than it is right for an adult child to abuse a minor.

We ought to find a system that is fair and age-appropriate, and which gives people the benefit of the doubt until it is proved. Without the proper expertise, more harm can be done than problems solved.

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[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I have put my name to Amendment 80, which I am pleased to support—and I also support Amendment 81 very strongly as well. My noble friend Lady Neville-Rolfe is a demon for data, as she has just demonstrated in the House, as a basis for good decisions and keeping the public well informed about what is going on around them while avoiding rumour and anecdote, which takes us to a bad place, particularly in areas as sensitive as immigration. Therefore, I particularly share her view, and the view of the noble Lord, Lord Green of Deddington, that the Government’s decision to reduce transparency about the flow across the English Channel is regrettable. It is clearly an area of considerable public concern and, for better or worse, we will not solve it by not publishing the figures—that is likely to make it worse.

I shall add one thing on the international passenger survey, when we come to relaunch, refocus and redesign it. I was once questioned as part of that survey, when I was travelling through Heathrow, and I was very pleased to answer the lady, who was very good and helpful. I went on and talked to her a bit about her job, and I can offer the House three take-aways. First, under no circumstances do you cross-question; so if someone says that they are coming here to be a plumber in Cardiff, a plumber in Cardiff they are—there is no question of whether they might be something else. That is not your job; you just write that into the form. The second was that you tended to have a predominance of older people answering the form. She said that younger people would be in a hurry, pushing on, and they tended not to want to stay and answer her questions —or there were not many of them. Older people seemed to have more time and, therefore, she felt that the survey was biased towards older people. Thirdly, and finally, on the issue of the early morning or transcontinental flights, known as the red-eye flights, unsurprisingly those people coming off those flights did not want to answer a survey—they wanted to get to a shower, a bed or their office. She told me that so difficult had it been that they had started reducing the number of staff who were on the early shift, and they brought full staffing on at about 8.30 am or 9 am, when people were in a more helpful mood—perhaps that is the best way of putting it.

I leave it to the House, and to my noble friend the Minister, but with that sort of anecdotal background, this can hardly be a system that inspires confidence as to the accuracy and value of the data that it collects. If we are going to relaunch it, we need to think much more clearly about how we are going to gather data in a way that creates confidence and trust.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will speak in support of Amendment 80 and, partially, Amendment 81. On Amendment 80, it is common sense—and would be helpful to all sides of the debates on this Bill that arose in Committee and on Report—that we should know more. As the noble Baroness, Lady Neville-Rolfe, has said, whatever our analysis or principles, we would all be helped if we had reliable data in the public square on asylum and immigration because we could then perhaps do some myth-busting.

When you talk to people outside of this House, there are a range of responses to this issue and, indeed, to our discussions here on the Bill. There is some perception that borders are open, and that there are too many people flooding into the UK for society to cope. Some people will even go so far as to say that we are full. I do not think that we are full but, as far as some are concerned, it looks as though we are being overwhelmed. They use the evidence of their own eyes, watching people crossing the English Channel weekly, sometimes daily, with a perception that nothing is being done. I know that this Bill is trying to do something about precisely that, but the perception is that all these people are coming in and nothing is being done.

I have said before that I do not believe that the people making those observations in public are motivated by xenophobia. I have a number of observations. The UK may not be full—it is not full—but if you live in one of the many towns where there is a chronic housing shortage, you are near the top of the housing list and then you get bumped, you may have a perception that it is to do with immigration because some refugees have been given housing. British citizens from all ethnicities can become frustrated and can feel as though there are indeed too many people coming to the UK. We need to have the figures to be able to refute that, or to do something about it. Also, as it happens, you need the figures to plan how we can get more housing and deal with the lack of services—because, actually, the problem is not too many people but not enough services. We need to know, and that is why the data would be helpful.

My second point is about lack of trust, a sense that those in authority are not prepared to tackle this issue; that it is too difficult. Often, that takes the form of people believing that lies are being told about the figures and the real numbers are being hidden. It is in all our interests in restoring trust that we are not hiding any figures. Also, confusion remains over different categories of people wanting to come to the UK. Even in this House, throughout this debate there has been slippage in talking about migrants, immigration, asylum seeking, refugees and so on; they are all too often conflated.

This is further confused by reality. For example, in my view, there are not enough opportunities for unskilled economic migrants to make their life here. I have to persuade my fellow citizens of that; they do not necessarily agree. Regardless, many undoubtedly present themselves as asylum seekers here because of the confusion. I know that it is not a clear picture; none the less, it would surely help to detoxify the issue if politicians were open and honest. That would mean our having much more granular information about the numbers of all types of people living in the UK and their status here.

Finally, I have reservations about Amendment 81 asking for weekly figures of the numbers entering the UK across the English Channel. My reservations are based on the image of some ghastly nightly announcement like those Covid death announcements, which were so often demoralising and not necessarily very reliable. I do worry about scaremongering, or that stats might be used as a substitute for analysis or context, but, on balance, I believe that sunlight is the best disinfectant and the more information in the public realm, the better. This is not because I am particularly enthusiastic about data or into number-crunching, like some other noble Lords. No nation state can claim to have meaningful sovereignty if it does not know or check, or has no control over, the number of people living within its borders. It comes over as indifference to the worries of people who are already citizens here if it looks like we are being evasive about those numbers, or not openly telling them the truth.

[Lord Paddick (LD)]

I hope that I do not disappoint noble Lords, but I generally agree with all the speakers before me, particularly the noble Baroness, Lady Fox of Buckley. We agree with Amendment 80 in principle, in that there is a definite need for accurate immigration data. In particular, the public need to know what net immigration to the UK is—that is, the number coming into the UK set against those emigrating. In particular, they need to know how many of those are seeking refuge from war and persecution, such as those trying to come to the UK from Ukraine, and how many are effectively economic migrants, whether workers or students, who make a contribution to the economy as either workers or consumers. The former—genuine refugees—arguably have a stronger case for coming to the UK than those who want to further themselves or their careers. As I have said numerous times, in recent years only six in every 100 immigrants have been refugees.

--- Later in debate ---

[Lord Hodgson of Astley Abbotts (Con)]

My Lords, I am afraid I have to plead guilty as charged to the point made by the noble Lord, Lord Hacking, since I was chair of the committee on citizenship and citizenship engagement that he was referring to, which had among its extremely able members the noble Baroness, Lady Lister, and my noble friend Baroness Eaton.

We came across this issue, so I have some sympathy with the direction of travel of this amendment. In simple terms, while our committee was sitting the fees for naturalisation were raised to £1202, with an extra £80 if you wanted to have a citizenship ceremony. We were told that the cost of administering was roughly half that, so there was an override of about £600.

To be honest, to forgo the citizenship ceremony, which we were able to attend, would be to miss something. It was an extraordinarily moving experience to watch the people enter enthusiastically into their new life. In the margin of the meeting, they did, of course, tell us about the costs that they had to incur along the way. My major reason for supporting the direction of travel, though, is the point made by the noble Lord, Lord Alton. We are trying to promote people to come forward and anything that dissuades them is a mistake. I am not sure that we must have regard to what other countries are charging. That seems to me not necessarily something that will add to the sum of human knowledge; nor do I think there is necessarily not some room for a bit of a surcharge for the overall administration. But the underlying point is that the margin between the cost of providing the service and the cost being charged is too great.

In my view, this amendment—not in this form, but something like it—would impose some financial discipline at a lower operational level because it would impose some direct responsibility. Once it becomes a sort of global figure, nobody cares about it, is responsible for it or does anything to improve the service it is providing. That is why I think this is going in the right direction, even though I do not agree with all the detail.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I want to support Amendments 83 and 84 and really thank the noble Baroness, Lady McIntosh of Pickering, for putting them forward. I do not know whether she will be grateful but I am also grateful to the noble Baroness, Lady Lister. Whether she wants me or not, I am one of the terriers she has managed to inspire in this instance. I have tried to pursue a bit of theme—I raised it at Second Reading and in Committee—that the Bill should have been used, apart from anything, to send a positive message about the benefits of being a citizen and those special rights and duties characteristic of any nation state. I feel the Government have missed a trick.

It seems to me that these modest amendments could punch above their weight by, on the one hand, removing entirely unnecessary barriers to citizenship but, on the other, making a positive case that we care about citizenship by doing so. It is a reminder that the barriers we are talking about here are not necessary. They are just financial ones. These are people whom the British state, according to its own British Nationality Act, says are entitled to citizenship, so that is not even in dispute. That is what is so irritating about this.

The fees are undoubtedly causing people problems and putting them off realising their citizenship rights. We have already heard the details. But the fact that you can be charged well over £1,000—despite the Home Office estimating that it takes only £372 to cover costs—just makes it feel like a rather grubby money-raising scheme. The amendment rightly tackles the fact that you should restrict any fee to just covering the real cost. I worry that it sends a message that citizenship is being cheapened morally by charging too much.

This goes beyond money because we need to consider what it means. The noble Lord, Lord Alton, and the right reverend Prelate both referred to what this means politically. It is completely counterproductive that citizenship is treated in this financial way because of the impact it has on social bonds and cohesion. Rather than citizenship which allows a sort of national solidarity of citizens—as we have inspiringly seen among the citizens of Ukraine—instead we are socialising new generations into a kind of shadow citizenship status that is fracturing and creates cynicism in the UK’s very commitment to the belonging, to equal rights and virtues and to the promise of what it means to be British.

Nationality and Borders Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 1 & Committee stage
Tuesday 1st February 2022 Lords Chamber

[Lord Horam (Con)]

I think that is a matter on which the Government will no doubt make their position plain. As I understand it, they do not believe that they are departing from the international convention of 1951. Of course, many other countries have taken similar positions. Australia, for example, has divided people into those coming in in the normal, legal way and those coming in illegally, and that has not been denounced by the United Nations. Japan has done the same thing and, interestingly, the Social Democrats in Denmark are about to too. In Australia, they have a cross-party agreement on the immigration policy. I think the Labour Party ought to be more careful in its view of this because it may well become the Government in future and it will face the same problems which the present Government face. These are not only problems which the Government must face simply to be responsible and give people a sense that they control things and that borders mean something, which is their bottom-line responsibility, but also the issues of immigration.

With what we have here, if we can reduce it to the particular problem which the Government face on illegal immigration across the channel, the approach they are adopting helps, first, to deal with the pull factor, by pointing out the advantages of the normal asylum-seeking methods of getting into this country, on which this country has a good record; and, secondly, to dissuade people from adopting the illegal methods which they are at present forced into using.

The noble Lords, Lord Paddick and Lord Kerr, made the point that they are economists, and I am an economist too. The problem is that, if you expand safe routes, you can never expand them wide enough to take account of all the people who want to come here. That is a simple fact of demand and supply, if I may say so, well known in economics. That is the problem which the Government face. As the noble Lord, Lord Liddle, mentioned in a previous debate, you have to have some limit on the number of people coming to this country for good population control reasons. If you decide on a limit and people are comfortable with that, you can decide how many immigrants will be allowed into the country in any one year and then deal with the problem of illegal immigration. In my view, that is the right order in which this should be dealt with, and I believe the Government are following exactly that policy.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, it is interesting—

[Noble Lords]

Lord Clarke.

[Baroness Fox of Buckley (Non-Afl)]

Sorry, I thought the noble and learned Lord, Lord Clarke, gave way to me.

[Lord Clarke of Nottingham (Con)]

I am not accustomed to the practices of this place; I am quite happy to see the debate alternate between different sides. I arrived at this debate—I regret that I have not got to the earlier debates on this difficult Bill—intending to listen but not to speak. I was hoping it would help to resolve the dilemma I face, which turns out to be exactly the same dilemma that has just been addressed by my old and noble friend Lord Horam.

I dare to venture that no one sitting in this Chamber has more liberal instincts than me on the subjects of race, xenophobia, multiculturalism and so on. In fact, one of the satisfactions of finding yourself elevated to the peerage is that you can come into this Chamber, where I suspect 99% of Members have perfectly sound liberal instincts. I have seen society in this country change considerably in my lifetime in the post-war world, and I have said publicly more than once that I think the multi-ethnic and multicultural society in which I now live is a much healthier, stronger and more enriched society than the rather narrow and insular all-white society in which I was born and raised.

The 1951 convention was one of the great contributions that British lawyers and politicians made to the post-war world, and it was obviously highly desirable after the horrendous shock of finding that a European country had organised—or tried to organise—the industrial genocide of a whole race. That is the context in which it was drafted. So my instincts are of course, first, that we should comply with the convention and, secondly, that this is a suitable place to accommodate the many people who need refuge. We have done so very successfully as a country. Although race relations are a problem in some places in this country, I think that our society has handled this better than any other European country. We do not really have the serious problems that quite easily break out in other countries.

But the circumstances have changed worryingly and dramatically. As has been pointed out, because of the horrendously dangerous state of the world, about 80 million people are now displaced, are looking for a better life and would take desperate measures to get it. If my noble friend Lord Horam and I were a couple of 18 year-olds living in Nigeria, I suspect that, if we had more than averagely prosperous families, we would hope that they would raise the money for us to take the horrendously difficult journey of leaving Nigeria to make a new and better life for ourselves. We would then hope for a family reunion and that our family could come and join us once we had made our way in Britain.

Among that 80 million—an extraordinary number—the favourite destinations are probably the United States, this country perhaps second and then France and Germany. They will want to go to these countries because, in the modern world of communications, they can see and know perfectly well that they are where the quality of life is likely to be best for them, if they can get there. The tenor of the debates that I have listened to so far is that we should make sure that there are legal and safe ways in which, in one place or another, we can consider all of these applications and make ourselves at least as attractive as any other country, particularly at a time when many other, previously normally ultra-liberal countries are setting up very considerable barriers to going there.

But we have to reflect on the impact that that might have on our society and culture, because things have been deteriorating recently. The growing public reaction to immigration—albeit expressed in perfectly civilised ways by most people at the moment, fortunately—is one of the reasons why our politics is deteriorating so badly. Every democracy in the western world is seeing the rise of right-wing populist nationalism, which I deplore wherever it occurs, including within the Conservative Party. It is rising—that is the reaction—and it is leading to developments of a kind that have gone further in other countries. In France, the position of Marine Le Pen, who now even has a right-wing competitor for the vote, shows what can happen when you get the wrong public reaction.

Among the public, the overwhelming reaction to the publicised symbol of these worries at the moment—the dinghies coming across the channel and being picked up—is that the Government are failing to stop them. The Government do not have the first idea how to do so, and, actually, neither do I. Plainly, you have to rescue these people and bring them here when they are in our territory—and then they are an asylum and refugee problem.

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I say to the noble Lord, Lord Horam, that one of the things that happens when people meet those seeking asylum and refugees, and hear their stories, is that they change their mind and heart. I have seen it time and again in Gateshead, Hartlepool, Darlington, Stockton and Sunderland: people welcome the refugees and discover that they want these people to be their neighbours and to be part of this nation. This clause needs simply to be removed.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I feel profoundly uncomfortable with Clause 11, and I am very tempted to vote for it to be completely removed. But I wanted to listen to the debate, and I am afraid that the people who have argued for the removal of Clause 11 have given me pause for thought, which was not what I expected to happen when I arrived. The reason is the way that this discussion has taken a particular form politically.

I am somebody who voted to leave the EU from the left—in the Tony Benn tradition—and I have historically been liberal on immigration. I have fought on many anti-deportation campaigns, and I am not somebody who thinks that one should close the borders. I am, more than anything else, a democrat; even in this House, I try to stay a democrat. I appreciated, with some irony, the comments of the noble Lord, Lord Horam, and the noble and learned Lord, Lord Clarke—Conservative remainers with whom, to be honest, I have not historically had a great deal in common but who raised some important issues that should inform this debate.

My concerns about Clause 11 were very well expressed by the right reverend Prelate the Bishop of Durham, who explained in great detail where I was finding difficulties with this. But I have a problem with the solution and the way in which this debate has been conducted. I think it is important to consider the British public’s opinion. It was interesting that a lot of people have asked us to walk in the footsteps of asylum seekers; I think empathy is hugely important and humane. But I also ask noble Lords to walk in the footsteps of the British public, who, if you ask them their opinion, do not all want hanging. Leadership is, broadly speaking, not the same as usurping their perfectly reasonable concerns.

What are their concerns? They are not that they do not meet any asylum seekers and, when they meet them, they change their minds; not that they lack generosity; not that they are xenophobic, mean spirited or narrow minded; and not that they want to close the borders and hate foreigners, as is often implied. Their concerns are that they would like control over the borders, which I think is a perfectly reasonable demand. A visceral illustration of a lack of control over the borders has been given to us by those arriving in boats, and we are all trying to untangle what to do about it as humanely as possible. That includes the British public, millions and millions of whom are incredibly generous of spirit towards all sorts of people and do not need lectures from here about how they have to open their hearts to people. They are full of heart-brimming generosity in all sorts of ways. Why do we have an issue here?

This is the bit that I cannot untangle. There are people who are seeking asylum legitimately, and one wants to welcome them. There are people trying to come to the country who are undoubtedly illegal immigrants, as anyone would understand them, but because there are very few ways to arrive as an economic immigrant, they may choose to describe themselves as asylum seekers. On a different set of amendments I will say that we should have more liberal immigration rules that would allow unskilled people to come as economic immigrants to this country.

We can see, and it is perfectly reasonable, that you cannot just say to people that everybody who arrives on a boat is obviously an asylum seeker, and that everybody who worries about them arriving must be a mean-spirited, horrible person who hates foreigners. That is my concern. I am trying to untangle that, because I genuinely do not know what to do. As I said, I would be liberal about economic migrants coming to the country, as much as I would about asylum seekers coming to the country, but I feel as though everyone is being forced to declare that they are asylum seekers because it is the only route in where you will not get kicked out. So I think that we are in a mess.

The Government need to answer this. What happened in relation to Brexit—for noble Lords who are interested in this—was not that people did not want any foreigners to come into the country but that they were told that freedom of movement was a non-negotiable international agreement that nobody could ever debate. So as democrats, people said, “Well, I live here; I’m a British citizen”—many of them from ethnic minorities, before anyone goes down the racist road—and they said, “Shouldn’t we be able to control who are British citizens who come here?” That is what happened. Other people said, “No, we can’t because we’re in the EU; we’ve got no choice”. So they got annoyed. My concern here is that if we say to the British public, “You either agree with us or you’re a xenophobe”, or, “You have to agree with us because we’ve got a refugee convention”—another international agreement from 1951, however good it is—“and it’s the only thing going; there’s no alternative”, that will also indicate that they have no democratic power.

I cannot understand why the Government keep trying to fit in what they are doing to the 1951 refugee convention, which, although one noble Lord described it as having been written in utmost liberality by British lawyers, was written by British lawyers—not by the British public. I want the laws to be written by the British public and for the British public, not just by lawyers—and in 2022, not necessarily referring back to 1951 all the time. I have no objection to that convention, but if it is not fit for purpose in 2022 to take control of our borders, the debate about immigration and asylum seekers will become toxic, if we just keep telling people that they cannot have this discussion. I believe I can convince my fellow citizens to be more liberal on immigration, but not when they are told that they cannot have the debate or that if they want to have the debate or to express worries about people arriving in boats, they must by their very nature be lacking in generosity and xenophobic. That is not the way to go. I am still likely to vote against Clause 11, by the way.

[Baroness Chakrabarti (Lab)]

My Lords, I think we have been having this debate all my adult life and probably all my life, but I am certainly happy to keep having it; there is nothing wrong with that. However, I do think that it is very important in the context of Clause 11 to make a distinction in Committee between immigration and asylum. If I may say so, I do not think that Brexit is terribly helpful to an analysis of Clause 11. It used to be said that for the French, a meal without wine is like a day without sunshine. Clearly, for some people the equivalent is a discussion without Brexit, but I am not one of them.

It is important to make this distinction between immigration and asylum, which are both big and important debates, but they are too often conflated—not just in our discussions in this Committee but to some extent in Clause 11 itself. The noble Lord, Lord Horam, did not have the opportunity to reply to my question—all sorts of people intervened in his speech, to be fair—but if somebody is a convention refugee, they are not and never were an illegal migrant. That is incredibly important.

I congratulate the right reverend Prelate, who I think gave the speech of this Committee, and not just because I agree with him. I do agree with him, and also the noble and learned Lord, Brown of Eaton-under-Heywood, and, of course, the noble Lord, Lord Kerr. What was so important about the right reverend Prelate’s speech was its specificity to the refugees’ journey and the way that that would be affected by this differentiation. I congratulate him on that, because it is a very good way to analyse Clause 11: whether it works and whether it complies with the refugee convention.

Why is compliance with the refugee convention so important? It is not like choosing to vote in or out of something that began as a trading bloc but was always a particular grouping of countries rather than the whole civilised world. The reason why the refugee convention is so important is because, after two world wars, it was literally the world’s apology for the Holocaust. That is the best way that I can sum up why the refugee convention is so important. While Britain did wonderful things, not least standing up to Hitler with lots of Americans and Russians and people from the Commonwealth too, and there are very good things to be said about Britain’s contribution, there were also less noble things that have to be remembered—about the people who did not manage to get out, who did not escape the Holocaust, including people who were not allowed into this country and other countries around the world.

Nationality and Borders Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 2 & Committee stage
Thursday 27th January 2022 Lords Chamber

I therefore ask the Minister, who has spoken to me once and has kindly offered to do so again, to take Clause 9 out of the Bill, and, if she can make the case for such an extraordinary power, which I do not take for granted, to come back with a version of it that is far more limited in scope and subject to proper safeguards and accountability.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, we are told that the provisions of Part 1 overall seek to remove historical anomalies and to remedy areas of historical legislative unfairness in British nationality law that have prevented citizenship being available to a range of people deemed to have the right to it.

Although we have already discussed some of the problems today, and possible improvements to Part 1, on the whole this part of the Bill is full of positive aspirations, and I welcome it. However, Clause 9 as presently framed stands out as jarring and negative, as it confers on the Secretary of State even more ill-defined and overreaching powers to make citizenship-stripping orders without notice and effectively without appeal, as we have heard. However, it builds on a prior problem of treating citizenship as contingent—a gift of the Home Secretary. We have a chance here to build on the theme of the intent of Part 1, which is to be able to remove historical injustice. That is why I have put my name to the amendment in the name of the noble Lord, Lord Moylan, which strips back powers to the 1981 Act, as he explained.

I will not give as long a rendition of history as the noble Lord, Lord Moylan, did—his was ever so interesting —but I want to go a bit further back to look at how we got here. Way back in 1870, William Gladstone proposed a plan to require the ability to revoke the naturalisation of any individual who

“acted in a manner inconsistent with his allegiance as a British subject.”

What is interesting is that this was vigorously opposed by Lord Houghton as a

“transcendental power—more than ought to be entrusted to any man.”

Lord Houghton added that not only was this to place too much power in the hands of the Executive but that the law would also be discriminatory in dealing

“differently with naturalized than with British-born subjects.”—[Official Report, 10/3/1870; cols. 1616-18.]

Parliament then agreed with Lord Houghton, and I hope that today’s Parliament will agree with the noble Lord, Lord Moylan.

Parliament and Lord Houghton then rejected the proposal by arguing that citizenship is a right that should not be arbitrarily removed by the state—“Hear, hear” to that. Now, sadly, this Government and previous Governments enjoy far greater transcendental power than Mr Gladstone ever dreamed of. They are treating citizenship as a privilege, not a right, and they carry on apace.

Following some points made by the noble Lord, Lord Moylan, on 1918, I find it extraordinary that, in 2017, more Britons have had their citizenship revoked than in both world wars combined. Since 2010, more than 150 people have been stripped of their citizenship; although, as the previous speaker already described, it is entirely unclear why and when, and what explains different figures at any time. But of course this is not just about numbers.

This amendment is drafted to undo an increasingly used power, and it would prohibit the Secretary of State making anyone stateless, other than those who have obtained citizenship through fraud or misrepresentation. I note that anyone who has obtained citizenship through fraud or misrepresentation is not a citizen at all. In other words, this is about protecting people who are citizens.

Clause 9 and the present powers are justified by the Government and in popular discussion on this issue as reserved for those who pose a threat to the United Kingdom or whose conduct involves very high harm. They are associated especially with jihadists—key dates form around 9/11, 7/7 and the rise of ISIS—and violent criminals. That explanation seems dangerous, as it allows the state to use the withdrawal of citizenship as a tool of punishment.

I make the point that citizenship is a legal status for individuals in perpetuity, with no ifs and buts. It enshrines a set of rights and responsibilities. As always when we have this discussion about the control of national borders, there is a spotlight on those trying to cross them and get in, as it were, but we do not give enough attention to the virtues of national borders for those within them. They allow the creation of citizenry with rights and the foundations of social bonds and solidarity.

Any nation state is not just an arbitrary grouping of individuals or made up of members of an abstract entity of humanity; national laws are made on behalf of citizens within a given territory and they do not apply to citizens of other nations. Democracy makes sense only within a specific place. Politicians in the UK are accountable to British citizens, not French or Australian citizens or what have you. UK citizens are then treated equally to each other within the boundaries of that nation state. They are treated equally at the ballot box or before the law. Whether bishop or builder, corporate CEO or cleaner, whoever or whatever your parents are, before the law and as voters, you are equal. That equality between citizens of any nation state means that they have different rights and duties from non-citizens.

For these special citizenship rights to mean anything, that equal treatment is crucial. Even when some of our fellow citizens renege on their duties and break the law—sometimes committing the most heinous transgressions of national law—we still do not renege on their citizenship.

We should not be squeamish about punishing British citizens who, for example, join a barbaric army such as ISIS, any more than when punishing British citizens who are child murderers or rapists. What we do not and should not do is wash our hands of our citizens because we deplore the vile crimes they have committed. Does it not exhibit moral cowardice if the state pretends it has no responsibility for dealing with the reprehensible actions committed by some of our own citizens? That is true for Stephen Lawrence’s racist murderers, Sarah Everard’s murderer or Shamima Begum’s active involvement in a death cult committed to destroying western free societies. What they all have in common, whether we like it or not, is that they are British citizens.

If ISIS and Islamist terrorism are considered special cases, as some argue, the Government should bring special legislative solutions to Parliament. Instead, the Home Secretary is given a general power to outsource British criminals to third parties, such as countries they have never set foot in, while allowing a practice that undermines and damages the very precious citizenship that British jihadis so grossly betray.

The truth is that this power given to Home Secretaries does not keep citizens safe in the UK. Instead, it creates a citizenship framework in which some are second-class citizens, their rights contingent and provisional. To those who say, “Don’t worry. Trust the Home Office not to abuse these powers. They’ll be used in only a very narrow way, directed at very particular people”, I reply: Windrush.

How counterproductive all this is. It is inevitably racially divisive and has caused huge worries and anxieties, as we have heard, among millions of British citizens, or would-be British citizens, especially those from ethnic minorities. As we noted at Second Reading, Part 9 sends a message that certain citizens, despite being born and brought up in the UK and having no other home, remain migrants in this country. While so many of our own fellow citizens feel their citizenship, and therefore all their rights, to be precarious, it makes an absolute mockery of demanding of them the duties of citizenship, such as loyalty, law-keeping, obligation to the life of the national community, and taking responsibility for the democratic future of one’s own society.

To conclude, the noble Baroness, Lady McIntosh of Pickering, cited British Future’s excellent report, Barriers to Britishness, which notes that, at a time when society can feel fragmented and atomised, when there are new challenges to a unified citizenship in the form of, for example, divisive identity politics, or in the context of many institutions that once bonded us all as citizens together having a less powerful hold and, to be honest, a trust deficit, then surely the common bonds of secure citizenship are more important than ever. In preference to this, this clause’s message—that citizenship is a privilege and that many possess it only under sufferance, depending on what a particular Home Secretary of the day, of whatever party, considers acceptable or unacceptable behaviour—is very damaging.

Let us take the opportunity of this Bill to reset the narrative. I will support a later amendment proactively promoting a positive citizenship agenda, but this amendment is a good start to this endeavour. I am also sympathetic to Amendment 32 and anything radical that secures the rights of British citizens, whoever they are, whoever their parents are and wherever they are from, and not the power to the Home Secretary.

[The Lord Bishop of Chelmsford]

My Lords, I am grateful to those noble Lords who have already spoken. It is heartening to hear voices from across the Committee raising concerns about the proposed powers in Clause 9. My contribution will be very short.

I can well imagine variants on our current conversation happening time and again, ever since the British Nationality Act 1981, which has already been referred to by the noble Lord, Lord Moylan, brought in deprivation of citizenship. Indeed, a look through Hansard would confirm that.

Since 1981, these deprivation powers have been amended and extended, including in 2003, 2006, 2014 and 2018. Each time, the rationale provided by the Government is the same: that these are relatively minor tweaks made for pragmatic reasons, with the security of the nation in mind, and that these powers will be used only in extreme circumstances, with great caution and restraint on the part of the Government. Yet it seems that these powers are never quite enough. The argument that they would be used in only the most extreme cases seems somewhat at odds with the 104 cases reported in 2017, as referred to by the noble Lord, Lord Anderson. At some point, it must surely become necessary for us to say that the Secretary of State has more than sufficient powers, given the gravity of what it means to be stripping citizenship away from people. Instead, it seems we are being asked to allow for the goalposts to be moved yet again—for the third time in less than a decade.

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[Baroness Williams of Trafford (Con)]

It could encompass both, but in the context of what I am talking about, some serious organised crime is outside of terrorism.

[Baroness Fox of Buckley (Non-Afl)]

Can I just a question that relates to that? A picture has been painted of a group of people darting over borders with their passports, getting away with serious organised crime and terrorism. I wondered why somebody did not stop them if they were involved in serious organised crime or terrorism and bring them in, as it were. What about those people involved in serious organised crime and darting over borders who do not have a parent or grandparent that means they are potentially able to live in another country? Are the Government suggesting that the harm British citizens are being protected from is all committed by people who are coincidentally related to somebody which means that they can go and live somewhere else? Are there no home-grown, with nowhere else to go types doing any of this harm that threatens British citizens?

[Baroness Williams of Trafford (Con)]

Of course there are home-grown people trying to do harm to our British citizens, but this is one of a number of powers to try to reduce high harm activity against the people of this country.

Police, Crime, Sentencing and Courts Bill

Baroness Fox of Buckley Excerpts

Report stage
Monday 17th January 2022 Lords Chamber

[Baroness Williams of Trafford (Con)]

My noble friend has jumped the gun on what I was going to say. We are confident that the statutory disclosure guidance, the latest version of which was published on 16 November, sets out clearly the criteria and principles which chief officers must have regard to in making decisions to disclose non-conviction information.

The safeguards in the statutory disclosure guidance are very robust. Should a chief officer consider that information ought to be disclosed in line with the guidance, the applicant is invited to make representations. Should the decision to disclose be confirmed following any representations given, that information will be included on the certificate that is sent to the applicant only. Importantly, the applicant also has a right to appeal that disclosure through the independent monitor, who considers cases where an individual believes that the information disclosed within an enhanced criminal records certificate is either not relevant to the workforce they are applying for or that it ought not to be disclosed.

[Baroness Fox of Buckley (Non-Afl)]

A question was asked earlier about what will happen to people who already have their information—what can we do about that? It is important that drafting takes time; in Committee I spoke about the problem of the drafting of these guidelines and said I wanted good drafting. But I was a bit concerned, as the Minister said that free speech is already protected by the Human Rights Act, but that does not console me because free speech is under attack. We have heard of many instances of where non-crime hate incidents are being used to chill free speech and this—

[Baroness Scott of Bybrook (Con)]

I remind the noble Baroness that she should not be speaking if she did not speak before the Minister.

[Baroness Fox of Buckley (Non-Afl)]

I did not understand that, and I apologise. The guidelines are reputation destroying and they need to be reviewed.

[Baroness Williams of Trafford (Con)]

On Report, questions and interventions are generally for points of elucidation and the Back-Bencher will have spoken before the Minister. That aside, in terms of what happens to historic cases, I think that will be determined upon the updating of the guidance. I will write to noble Lords as I think it is an important point as there may be many examples of it. I will write to the noble Baroness and put a copy in the Library because it is an important point of clarification.

Getting back to what I was saying about the safeguards, it is important that they balance the rights of job applicants with those of the vulnerable people they might have contact with. This goes back again to the point made by the noble Lord, Lord Ponsonby. Alongside the existence of this strict statutory disclosure guidance, I can reassure noble Lords further. As I mentioned in the previous debate, DBS records suggest that, in any event, it is rare for non-crime police information of any sort to appear on an enhanced criminal records certificate supplied to a potential employer. This type of information featured in only 0.1% of the 3.9 million enhanced checks issued by the DBS between April 2019 and March 2020.

My noble friend has also, helpfully, raised with me before today whether the government amendment may encompass disclosure within its remit by referring to the processing of data. While the Home Secretary’s code will set out the rules for those who process NCHI data, there is no obligation for the code to address every conceivable act of processing. We have been clear that the Government’s intention is to not include disclosure within the code of practice; as such, the issue of disclosure will not be covered or referenced in any way in the code of practice.

It is imperative that we do not set an unhelpful precedent by legislating in such a way as to undermine the police’s ability to build intelligence on possible offending and risk to life more broadly. I stress again the often vital role that this data plays in helping to safeguard the vulnerable. It is not there to enforce correct opinions—referred to by the noble Baroness, Lady Fox—nor is it there to serve a purpose unconnected with policing; rather, it is part of the police’s function to prevent crime.

In conclusion, again, I am most grateful to my noble friend Lord Moylan for raising these important issues. I hope that he can see that the Government have taken him very seriously; the government amendments, together with the assurances that I have given in response to Amendments 109C and 109E, will, I think, address the concerns raised, by bringing parliamentary oversight to this process while protecting fundamental police functions that are already subject to strong safeguards. I hope, therefore, that he will see fit not to press his amendment—he has indicated that he will not—and that he will support the government amendments as drafted. I beg to move.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, I raised my opposition to a version of this amendment previously. For once, I was planning to keep out of the gender identity argument—although I agree with both the speech and the amendment from the noble Baroness, Lady Noakes—but I feel I must make some response to the noble Lord, Lord Carlile, who said that the concept of gender is causing no problems in the law or among judges. I am delighted about that, but let me tell you that the concept of gender is causing a huge number of problems for many women.

The judge advises that we need to talk to young people who include trans people among their friends. I point out that I have trans people among my friends and spend a huge amount of time talking to young people. There is not just one view on this; there are lots of views. One of the problems we have to recognise is that open debate about gender and trans issues is often chilled, for fear of accusations of hate or bigotry—and, ironically, most of the misogynistic abuse that I and other women have received in recent months and years has been on this issue of being gender-critical.

I will now go back to what I was going to say. My opposition to this amendment is based on a key concern: the need to avoid fuelling a narrative of fear that posits the idea that terrible and unimaginably horrific, but rare, instances of sexual violence and murder are part of a continuum of widespread misogynistic attitudes. This can too easily align everything from online trolling and catcalling to rape and domestic abuse under the label of misogyny—hatred of women.

There is limited time because we have very major things to discuss, so I will focus my remarks. I appreciate that the amendment from the noble Baroness, Lady Newlove, explicitly distinguishes between sexual violence crimes and other forms of crime that may be motivated by misogynistic intent, and that it is not an attempt to create any new criminal offences, being more concerned with the police recording and reporting of the number of crimes motivated by hostility towards sex and, sometimes, gender. This, we are told, is crucial to identifying patterns of behaviour and targeting police resources, so that we can build a national picture of violence against women and girls. However, hate crime legislation generally, as echoed in this amendment, in fact means that the data collected is based almost entirely on subjective perceptions and will not allow an accurate picture to emerge.

The amendment talks of a reported crime in which

“(a) the victim or any other person perceived the alleged offender, at the time of or immediately before or after the offence, to demonstrate hostility or prejudice based on sex, or (b) the victim or any other person perceived the crime to be motivated (wholly or partly) by hostility or prejudice towards persons who are of a particular sex”.

So this amendment would not help us understand data as fact but more how victims—or any other third parties—subjectively see either the motivation of the alleged offenders or the crime. To compound the issue, there is no legal or formal definition of “hostility”, so the CPS suggests that we use the everyday understanding of the word, which includes ill will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike. This can lead only to the possibility of an ever- widening set of crimes being badged as misogynistic, with the only evidence being subjective.

The practical outcomes could be severe and serious, as the amendment would alter sentencing. This means, essentially, that, if someone thinks or feels that someone else is being hateful towards them, and the hostility in carrying out the crime is based on sex and explains their offence, that is enough for that person to be locked up in prison for longer. There is also a more insidious punishment: this amendment might mean that more and more behaviour—we know that we mean especially that of men and boys—is deemed to be misogynistic, destroying the reputation of those people once they are labelled as bigots who hate women, according to this categorisation, without necessarily being branded as such in reality.

According to the campaign literature sent out ahead of this discussion, this label of hostility via sex can be used to imply far more than hostility. However minor the original crime, if it is labelled as sex-based hostility we are told that it is an almost inevitable slippery slope and that this is the kind of person who will carry out, if they are not stopped, the most heinous crimes, such as rape, sexual violence and murder. Meanwhile, HOPE not Hate sent round a missive saying that this kind of sex-hostility is a slip road to far-right extremism.

Finally, the Fawcett Society claims that this amendment will give women protection from crime and help ensure the safety of women and girls. I say that it will not: if anything, it could distract the police from the practical, difficult but essential work of on-the-ground patrolling of streets, painstaking investigations, and so on, and the courage to see through those investigations and prosecutions. It might take valuable resources for the police away from policing if they are tangled up in the reporting and monitoring of staff and data which I do not think, as I have shown, is reliable. Consider one of the most gross examples of the abuse of women and girls: the grooming gangs that operated in parts of the north-west of England. Those women and girls would not have been helped one iota had those crimes been called misogynistic. The shameful neglect in the investigation and prosecution of that incident was surely not about whether it was seen as being driven by hostility to sex. This amendment avoids the real problem, is tokenistic and will not help women at all.

[Lord Russell of Liverpool (CB)]

My Lords, I have put my name to this amendment and will speak very briefly, not least because I have the privilege of being one of the Deputy Speakers of this House. I would just remind noble Lords that we are at Report, and at Report we are not meant to give either Second Reading or Committee speeches—it is a discourtesy to the House to be discursive. That is all that needs to be said on that.

Some noble Lords may be familiar with a newspaper that is normally far too left-wing for me, the Daily Telegraph. There is an article in today’s paper by a gentleman called Charles Hymas, which says—and I have no reason to believe it is not true, since I understand that there are fairly close links between the aforementioned organ and the party in government—that there are quite a few quite senior Back-Benchers in another place who are very keen to use this amendment, assuming your Lordships pass it, to enable them to have a proper discussion in another place about this issue and to decide then, as our elected representatives, whether this case has sufficient merit to be put into law and in what manner and form that should happen. I suggest that they are rather better qualified to do that than we are.

Having said that, my Lords, I will support this amendment. I think we should send it back to another place for them to have another look. The other place is also a better place to have what can be an extremely contorted and overimaginative debate about gender and the relative merits of sex and gender.

As others have said, I am not sure that generationally we are the best-equipped assembly to opine on these subjects. That does not mean that we are not able to have a point of view, and I am aware that some noble Lords and noble Baronesses have a very strong point of view. I simply point out that, however strongly they may feel, there are a great many others of a younger generation, and down the other end, who feel differently. I support this amendment, because I think your Lordships should give the other place a chance to decide for itself.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, we are at Report stage—although it would be very easy to misrecognise it as Second Reading. I have been supporting the Government this afternoon—but not at this stage and probably not for most of the rest of the debate.

The fact is that this amendment—and most that follow—to my mind, we must support. I entirely accept that it is nonsensical to suggest that by Clause 56, and most of those that follow, the Government is intent on repression. They are not trying consciously to suppress our hallowed rights of protest, of demonstration and of assembly. That is not the position. But I suggest strongly that that is the public perception—that is what the public believe—and understandably so, because it is such an overreaction to anything that has happened.

I too excoriate Insulate Britain: they behaved outrageously and undemocratically, so flatly contrary to the rule of law and wider interests, that we must amend to ensure that they are arrestable and imprisonable without going through the process of contempt of court proceedings in future. But these provisions, as the noble Lord, Lord Cormack, said, simply lack all common sense, they lack all balance and measure, and they are counterproductive.

The noble Baroness behind me suggested that we all, and the wider public, protest things such as stopping the Tube trains, but I would remind your Lordships—I think I have just read—that those who committed that apparent offence were resoundingly acquitted. The fact is that if we pass laws such as this law, that is going to be the reaction: the Government are going to be regarded as tyrants and the public will not play.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I tried to say that I think we do not want to muddle up too many things. The Bill might have been brought forward in order to deal with the popular revulsion at things such as the M25 sit-ins or getting on top of the Tube, and we have heard that from a number of noble Lords.

The point about this set of proposals, though, and things such as the triggering noise, is that they do not solve that problem. That is what drives me mad. The second lot of amendments—which were brought in anti-democratically in terms of process—at least looked like they referred to that set of egregious demonstrations. So that is that bit.

One thing that has been said which I think is very important is that there is a fractious atmosphere in society, which the noble Baroness, Lady Stowell, talked about last time we had this discussion, which is that people feel very strongly about some of the issues of the day. They are not prepared to always say that they support the right of demonstration; they think that something else is going on.

But one thing they definitely think is that the police are biased. They think that the police are erratic. Some people will say, “Well, the police won’t intervene because they’re all too busy taking the knee or driving around in rainbow-coloured vans”. Other people will say, “The police are acting like far-right stormtroopers protecting different types of people.” There is a public debate going on about the role of the police.

So, my objection to these amendment is that not only does it concentrate on noise, which nobody has ever complained about—who has brought that up?—but it puts the police in an even more invidious position. I do want to know how the Government will deal with that. The SOAS policy briefing, which I thought summed it up well, said that the Bill

“compels the police to make decisions about whether protests can go ahead, and therefore forces the police to become a visible and controversial actor in ordinary political debate.”

I think that this will make the position of the police much worse, so even if you are not on the side of the right to protest with no ifs and no buts—as I am—from the Government’s point of view and the Home Secretary’s point of view, who say they are doing it to help the police, they are actually putting the police in a position where they are wandering around assessing noise levels and therefore choosing which demos go ahead, which everybody will think is to do with politics and not procedure. So there seem to me to be some unintended consequences of that approach.

[Lord Pannick (CB)]

My Lords, I share many of the concerns that have been expressed—particularly the absence of a sufficient mischief here and the absence of proper definition of the ingredients of the offence.

I will add just one further point: the ability to demonstrate, and the ability to demonstrate while making a noise, is a very valuable safety valve in our civil society. If you close off that safety valve, you are going to cause a far greater mischief than is currently the case.

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[Baroness Fox of Buckley (Non-Afl)]

My Lords, the Government say that they are a law and order party, and it is important to recognise that law and order requires that, when Parliament makes criminal laws and sets out clear rules, the public themselves can decide whether they will be on the side of law and order or on the side of criminality. That requires that the laws that are introduced are proportional and have clarity.

Any member of the public needs to know whether they are breaking the law, so that they will not be labelled a criminal, but in this whole group of new amendments there is no clear guidance on, for example, what is a reasonable excuse. In an earlier set of amendments, the “ought to know” clause completely made it clear that one might not know. The phrase “reasonable excuse” is used as though one were guilty already and needed to give a good excuse for a perfectly reasonable, legal activity that is now treated with suspicion; the legal burden of proof is on the defence, whereas it should be a burden on the prosecution.

In Committee, when asked what reasonable excuse one might use for carrying a bicycle lock if it could be seen as potentially preparation for locking on, the noble Baroness, Lady Williams said:

“It is a defence for a person to prove that they had a reasonable excuse for carrying the equipment in question. For example, carrying a bike lock for the purposes of locking one’s bike to a designated space for bikes could be considered a reasonable excuse”.—[Official Report, 24/11/2021; col. 994.]


It struck me then that this is a situation whereby we have to explain to the authorities that in fact we are just carrying a bike lock and that we might want to lock our bike up, and that no, we were not the type of person who might misuse our bike lock. To be honest with you, that is no business of the police, the Government or the authorities. It seems alarming that people will need to have reasonable excuses for carrying out peaceful and lawful actions to avoid, potentially, prison terms. This is the micromanagement of what is considered to be the right kind of protest, when the Government claim that it is not attacking protests.

I would like to counter some of the arguments used by people I am broadly on the side of.

[A noble Lord]

Too long.

[Baroness Fox of Buckley (Non-Afl)]

I know that this side wants us all not to debate, but I am going to carry on for a moment. I want to get to the vote—I am trying to win a vote. It is allowed—just let me get on with it.

The point that I wanted to make was that this is not about whether we think that there is a climate emergency or not. It is not about what side you are on in particular demonstrations. There are some people on this side who may think that people labelled anti-vaxxers should not be allowed to have demonstrations. We have to be careful about picking and choosing which protests we want.

The proposals increase criminal liability without the need of knowledge of wrongdoing for a whole range of people who might just want to express a different political opinion, which I still think is what debate and protest is all about. If you do not have the knowledge of wrongdoing in that way, peaceful protests will be criminalised, and it will have a chilling effect on the right to protest.

The Government say that they are doing something on law and order, but they are inadvertently criminalising all sorts of innocent people, whether they like it or not. That will damage the right to protest.