Safety of Rwanda (Asylum and Immigration) Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Committee stage
Monday 19th February 2024 Lords Chamber

[Lord Carlile of Berriew (CB)]

That may not be the reason why it has been so drafted, but it is my interpretation of one of the consequences of that drafting.

The point I am making is that that construct, whereby a Minister of the Crown is a private person only for the purposes of that clause, seeks to exclude Parliament’s oversight of the actions of that person. At least Amendment 67 makes a respectable attempt to ensure that parliamentarians in both Houses can review the potential operation of certain issues under this Bill.

The noble Lord, Lord Coaker, raised the issue of numbers—very well, if I may say so. The leader of the Opposition, who was a young barrister in my chambers at one time and was noted for his determination and accuracy, told the nation that about 100 people would go to Rwanda. Others have suggested a figure of about 200. Would the Minister be kind enough to confirm the actual number of places that exist in Rwanda for people who would be sent there under this Bill? I believe it to be certainly less than 200, but that is based only on attempting to find out the figures through various articles I have read online. If we are really talking about fewer than 200 people, then what is all this about, and why is Parliament not to be allowed to draw the country’s attention to the fact that this is really a pig in a poke—a political construct designed to deceive people into believing that it will stop the boats—and take appropriate parliamentary steps? That is not what will stop the boats.

[Baroness Hamwee (LD)]

My Lords, the poke is very difficult to interrogate. One of the provisions of the treaty is about reception arrangements and accommodation, which goes to the point that the noble Lord has just made. I hope that the Minister will agree with our Amendment 76A, which is about transparency and the workings of the treaty. It is only through the joint committee that we could have any hope of understanding the day-to-day implementation of the treaty. It is only if we have something like Amendment 76A—we are not wedded to the particular drafting of it—that we will be able to understand. We need a reporting mechanism to Parliament in order to scrutinise, which is one of the major reasons that we are here, what actually happens—if it ever does happen.

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Report stage
Monday 3rd July 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Bach, who moved this amendment with great skill. I am not going to make a long speech in support of him, because he does not need it. My observation, from refugees and asylum seekers whom I have met in a particular role during the last year, is that many complain that the legal advice they were able to obtain locally, wherever they were placed, was often not accurate, and they had to go through a second round of legal advice.

It is essential that people have access to competent, accurate and correct legal advice, or at least legal advice that might be correct, to enable them to challenge the case made against them. Many of the cohort of people we are talking about are numbed by the experience they have had. They did not expect to be treated as they have been by the United Kingdom. Perhaps, as the Government claim, one might argue that there are some good reasons for their being treated in that way, but to deprive them of the most basic legal advice will cause offence not only to lawyers in your Lordships’ House but to many others.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lady Ludford has put her name to the amendment in the name of the noble Lord, Lord Bach, which he explained very fully, and these Benches support. One often hears that immigration law is too complex for non-lawyers to understand—I have long held the view that it should not be—but, frankly, it is too complex for many lawyers as well. You need to be a specialist, and that is recognised by the system, but one still hears some horror stories.

The realities of legal advice for anyone in detention in the immigration system have long been bleak. There may be advice sessions but they are 30 minutes long, and it takes a long time for the client to be brought to meet the solicitor, which eats into the 30 minutes. Even with the most articulate client, it can take quite a long time to take instructions. I was a practising solicitor for many years and this cohort, as the noble Lord, Lord Carlile, said, consists of individuals whose English may be inadequate. Interpretation is therefore required, which is cumbersome and difficult for everyone. In any event, they have a story that takes support to tell, and that requires a lot in the telling.

Given the relentless speed of the processes under the Bill, this amendment is very necessary. The Government have recognised that legal aid has a place here, given what they have done so far in the Bill and the consultation on the rates. Raising concerns about legal aid became even more relevant with last week’s impact assessment, which drew attention to the problems of accessing legal aid and legal aid services, especially outside London and the south-east. We are very happy to support this amendment.

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Report stage
Wednesday 28th June 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, five of the amendments in this group have my name and the names of noble and noble and learned friends on them. They are designed to remove retrospectivity in relation to the duty to deport. I, and certainly two of my noble friends, have had the advantage of a meeting with the Attorney-General and officials in recent days to discuss this, and I hope I am not being too optimistic in hoping that we will hear something at least partly welcome from the Minister at the end of this debate. I shall be very disappointed if that does not happen.

Retrospectivity is the enemy of legal certainty. Legal certainty is a basic tenet of common law and of our statutory law. In order to save time, I am not going to cite various very eminent judges who have spoken on this subject. I will simply give the names of Lord Bingham, the noble and learned Lord, Lord Mance, and the great public lawyer the late Sir John Laws. I remind your Lordships that the House of Lords Constitution Committee has emphasised that retrospective legislation should be passed in very exceptional circumstances only. The proof of very exceptional circumstances should require more than mere assertion: it should require clear evidence. The fact that the retrospectivity asked for, as in this situation, may affect a relatively small cohort of people is no mitigation for the wrong of unnecessary retrospectivity.

The Government are not offering evidence. They are offering a refrain, and the refrain is: “Stop the boats”. But they have failed to offer any convincing evidence at all as to how the present circumstances are so exceptional as to justify the Bill’s wide-ranging retrospective powers. This is wholly unacceptable, given that the proposals represent a widespread retroactive overhaul of our asylum law, founded simply on a deterrent effect—“Stop the boats”—which is unproved.

Again, for the purposes of brevity, I will not deliver the whole speech I would have wished to—and will break the habits of a lifetime thereby. But I remind your Lordships that the deterrent effect is hardly borne out by the Government’s own figures for migrants detected crossing the channel in June 2023, the very month we are in. I was surprised they did not appear in the impact statement, because they were available before it. According to those figures, up to that point, 3,506 migrants were detected crossing the channel in June this year, compared with 3,139 in June last year—some 400 more, and 1,500 more than in June 2021. If one looks at the figures for April, May and June 2023 together, the evidence that this retrospective element is stopping the boats is a fairy tale, but one of those nasty fairy tales that keeps the victims of it awake at night because of the uncertainty of what will happen to them.

Furthermore, the Nationality and Borders Act 2022 addressed the same public policy issue and was not retrospective. As Dame Priti Patel MP, the then Home Secretary, said in the Second Reading debate on that legislation, the intention was that:

“Anyone who arrives in the UK via a safe third country may have their claim declined and be returned to a country they arrived from or a third safe country”. [Official Report, Commons, 19/7/21; col. 717.]


In other words, the policy intention was the same, but although there was a little bit of retrospectivity in that legislation, the vast majority of its provisions were not retrospective.

At the conclusion of Committee on this Bill, the Minister admitted that announcing that it applied from 7 March 2023

“may not have had a decisive impact”. [Official Report, 24/5/23; col. 967.]

Well, the evidence suggests that it has not had a decisive effect at all. At best it is equivocal, which cannot be a basis for proper retrospectivity. The evidence does not justify such broad and sweeping legislation, which seeks to apply penalties to those who cross the channel to claim asylum, being retrospective in its entirety. It would set a dangerous precedent whereby the Government could legislate retrospectively, based on no more than conjecture and anecdote.

I respectfully suggest, even at this stage of the Bill, that a dangerous precedent is being set, that we should be deadly serious about the fact that we are dealing with the law and with sound and historic legal practice, and that this is not a situation in which the case for retrospectivity is anywhere near made out.

[Baroness Hamwee (LD)]

My Lords, as the noble Lord has said, brevity does not mean half-heartedness today and these Benches whole-heartedly support the noble Lord’s amendments to which my name has been added. It is not only an academic, philosophical, juris- prudential matter; retrospectivity applied to this Bill will be cited as a precedent for the future and would have an impact in the real world for individuals.

As we have heard, the Nationality and Borders Act is not retrospective. Indeed, the two classes of asylum seekers for which it provided have not even been brought into effect. Ironically, the situation and the figures that have been cited have supported our points that it will not have the deterrent effect that has been claimed. It is a very thin claim. The weather in the case of the channel crossings, and TikTok’s policy in the case of Albania, did have an effect. That puts all of us in our place.

--- Later in debate ---

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Griffiths, told us during the last vote about the views of all the members of the Council of Europe and specifically mentioned Hungary questioning what the UK is doing—Hungary.

My name is on the amendments tabled by the noble Lord, Lord Hunt, on behalf of everyone on these Benches. The survivors of modern slavery should be protected and supported, not just because it is the right thing to do and the UK was lauded for it but to help the prosecution of criminals, of which we hear very little. The Bill indicates the extent to which the Government fail to put themselves in the shoes of victims and survivors, including those who have been trafficked here—who therefore have not come under their own steam—and particularly regarding the need for survivors to be in the UK to assist prosecutions. I could go on, but I will not.

The noble Lord, Lord Alton, is right that we need an independent anti-slavery commissioner in post. How long has it been—a year and how many months? A considerable number of criteria should be assessed, but we are where we are. We maintain our opposition to how slavery and trafficking are dealt with. I congratulate the noble Lord, Lord Hunt, on his filleting of the Bill. We will be with him.

[Lord Carlile of Berriew (CB)]

My Lords, my name is on Amendment 96, along with those of my noble and learned friend Lady Butler-Sloss, who spoke earlier and with whom I agree, and the noble Baroness, Lady Hamwee. It attempts to remove Clause 21(5) and (6). Those subsections mean that a person will be removed from this country unless it is “necessary” and there are “compelling circumstances” to show that it is necessary for the person to be present in this country for the dreadful crimes that we are talking about to be prosecuted. Was the Director of Public Prosecutions asked about the effect of this provision on the likely success of prosecutions? If this clause required it to be advisable for the person to be present for the purposes of the investigation and prosecution, I would be in favour of it, but it goes much further than that and is contrary to all good prosecution practice.

I confess that I have met a lot of organised criminals in my time—as a barrister. I have also met an awful lot of victims in my time, as a barrister and occasionally as a Member of this House and the other place. It is not a level playing field. If the Crown Prosecution Service were asked what was advisable, like anybody who has ever prosecuted a semi-serious case and done cases where some witnesses were abroad, as I have, it would say that it is always advisable to have the witness in court, on a local screen or interviewed in a statutory way if at all possible, not to have them on the other side of the globe somewhere—they are unlikely to turn up and will be intimidated by the process.

Let me briefly compare the criminal we are talking about with the victim. The criminal is familiar with the legal system. He—it is usually a he—is often charming. He is often wealthy and can hire lawyers who may even be Members of your Lordships’ House. He is malign, lethal and cocky in the face of the legal system. Those are the characteristics of serious organised criminals. As for the victim, what is she going to be like? She will be frightened. She is likely to be poor. She will be vulnerable and terrified of the legal system and, to use an Orwellian word, will feel like an “unperson”. Do we really want that?

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Committee stage
Wednesday 14th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I am sorry if the noble Baroness misunderstood my first comment. It was in response to the point made by the noble Baroness, Lady Lawlor.

[Lord Carlile of Berriew (CB)]

My Lords, I hope that the noble Baroness will not mind my using her as an excuse but, on reflection, I think that I was unkind to the noble Baroness, Lady Lawlor, and I wish to apologise to the House.

[Baroness Hamwee (LD)]

My Lords, shall I move on to Amendment 150? In fact, it takes us back to the previous group; I have no idea why it comes into this group. It would provide that the Act should not come into force until at least 28 days—I propose—after the Secretary of State has published a statement confirming the number of persons who, for a period of six months or more, have been awaiting final determination of their claim for asylum; and that, for not less than six months, that number has been not more than 20,000.

That may be a little circular and rambling but, basically, it proposes that we should get to a steady state in dealing with asylum applications. The periods may not be ones that noble Lords agree with, but I propose a figure of 20,000 people, which is not a negligible number of people. This amendment seeks to be realistic and provide a bit of—to our minds—common sense to the context of what we are debating.

I am grateful to the noble Lord, Lord Carlile, the noble Baroness, Lady Neuberger, and my noble friend Lord Paddick—who probably had no option but to sign it. This is a serious amendment that follows on from the serious points made about the operations of the Home Office. It is the backlog that is the problem. So much of this debate has suggested, implicitly or explicitly, that the position that we are in is somehow the fault of those who are seeking asylum, which is not an easy thing to take on.

Illegal Migration Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Committee stage
Monday 5th June 2023 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I also have various other amendments in this group. I feel I should speak very slowly in the hope that those who have the other amendments in this group arrive in time to introduce them.

Amendment 30 relates to Clause 5, which is one of the removal provisions. A number of noble and learned Lords, all learned in the sense that one generally understands it—I can see one of them in her place—have put a good deal of work into the other amendments in this group. I do not want to pre-empt what they and my noble friend Lord Paddick will say, so I will leave that support unspoken.

Clause 5(4)(b) places the Secretary of State above the law and above the courts, because the first hurdle to making a protection or a human rights claim is that

“the Secretary of State considers there are exceptional circumstances”

preventing removal to a particular country. This amendment is intended to probe what is meant by “exceptional circumstances”. I hope the Minister can expand on this. We have examples in subsection (5) which are about particular countries and not individuals. I suspect that they may include situations which are the subject of many other amendments in this group, and if so we should spell that out and not make it a matter of discretion. I am questioning the Secretary of State’s discretion, as I understand it—reasoned discretion, one hopes—or consideration that there are exceptional circumstances which prevent removal to a particular country.

It was only when I was preparing for today that I paused on the word “prevent”. Does it really mean preventing removal, which to my mind conjures up pictures of protestors preventing take-off of a plane carrying a particular individual? Or does it mean that removal is inappropriate or risky because of the reception—in the broadest sense—at the other end; or that there are circumstances which mean that removal would be unsafe? If it is about treatment at the other end, I am not sure that “prevent” is the right term.

I very much support the amendments—which we will hear about in a moment— extending the list of countries and parts of countries which are dangerous to return people to.

My amendments are directed at, and opposing, the notion that an individual can be safe in a part of a country if he is not safe in another part of the same country. Not every country is in a tidy unity, but where there are laws, they tend to apply overall. Where there are prejudices in a country, those who may be a threat to an individual will be free to travel between different parts of the country. Those are Amendments 52A to 52D, Amendment 52G and Amendment 53A.

Amendments 52B and 52D challenge the proposition in Clause 6(1) of removal if “in general” there is no serious risk of persecution or that removal will not “in general” contravene obligations under the human rights convention. What is meant by “in general”? I do not understand the term in this context. It is not fair to call it a lazy term, because I appreciate the vast amount of work that goes into drafting any Bill—however much one dislikes it—but it is not a very imaginative way to describe a situation. If you cannot give an example, you should not be trying to use generalised terminology. This seems to be another demonstration of the Government clutching at anything they can to deny obligations to asylum seekers. I beg to move Amendment 30.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise for my slightly late arrival in the first minute of this debate. I rise because I am the signatory of a number of amendments tabled by my noble and learned friend Lord Etherton, and because I have some amendments in my own name: Amendments 33A, 34 and 35.

The aim of all these amendments is to ensure that something happens which I feel should not cause any differences with the Government. I think it may be a matter of interpretation or a matter of adding a few words to the Bill. Principally, it relates to the treatment in third countries of people who fall within the LGBTQ group. Section 80B of the Nationality, Immigration and Asylum Act 2002 provides that a state is a safe third state in relation to a claimant if

“the claimant’s life and liberty are not threatened in that State by reason of their race, religion, nationality, membership of a particular social group or political opinion”.

I focus on the words

“member of a particular social group”.

I am sure the noble and learned Lord, Lord Bellamy, will acknowledge that the definition of a “particular social group” has been to the courts. Indeed, government guidance has been issued which accepts that being a member of the LGBTQ+ community, subject to the facts being established—obviously, there is a consideration of the facts in every case—entitles that person to protection from Section 80B, as I quoted. The purpose of these amendments, therefore, is to ensure that people who are seeking asylum because they are a member of that social group—or another definable social group—do not lose the full protection of the law by reason of the content of Schedule 1 to this Bill, and the provisions of Clause 5 in particular.

Nationality and Borders Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Report stage
Tuesday 8th March 2022 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, my name, on behalf on these Benches, has been added to Amendment 64A. The House will be glad to have heard some very compassionate and rigorous speeches.

The noble Baroness, Lady Fox, talked about trust. Of course, that is hugely important. It may be the circles that I move in, but what young asylum seekers say—what many asylum seekers say—is not taken at face value; quite the contrary.

The noble and learned Baroness, Lady Butler-Sloss, talked of the young Afghanis whom she met. Amendment 64 refers to “demeanour”—I know that is not the term of the noble Lord, Lord Green, but it made me reflect on the fact that, as regards demeanour and appearance, we must be very careful how we regard people of a different culture from our own.

On Amendment 64A, so much of age assessment, as the Government present it, is about science. In Committee, the noble and learned Lord, Lord Stewart, acknowledged that there is no silver bullet, but the Bill itself and the Government’s argument rely very heavily on scientific assessment, although the scientific methods specified in the Bill are only physical examination and measurement and analysis of saliva, cell, DNA and other samples. So, it is particularly worrying that the relevant professional bodies are so loudly and clearly opposed to these provisions on the basis of ethics and because of concerns about the accuracy of tests and measurements.

A lot of factors are—or should be—in play in assessing age, using a range of professional skills. The Home Office fact sheet also acknowledges that there is no single method, scientific or not, that can determine age with precision, but then makes a particular point of referring to the Home Office chief scientific adviser. I ask the Minister: what disciplines will be covered, and will it involve professionals in the psychiatry and psychology parts of the scientific/medical world with qualifications, expertise and experience in assessing and treating young people who have gone through the experiences that young asylum seekers have frequently gone through? They must also have experience in dealing with asylum seekers and others who have undergone traumatic experience, dealing with them in a trauma-informed way and avoiding retraumatising them. I refer noble Lords to my Amendment 84C, which will be the very last to be discussed in this debate, probably some time tomorrow morning.

Clause 51(7) provides that the decision-maker must

“take into account, as damaging the age-disputed person’s credibility … the decision not to consent to the use of the specified scientific method.”

Clause 52(1)(f) provides for regulations about

“the consequences of a lack of co-operation with the assessment by the age-disputed person, which may include damage to the person’s credibility.”

I leave it to noble Lords to assess for themselves where that is leading or where the Government would direct us. How all that works, with the standard proof being the balance of probabilities, I am really not expert enough to be sure, but, taken together, it all worries me. I commend the rounded approach of Amendment 64A.

[Lord Carlile of Berriew (CB)]

My Lords, given that misrepresentation of age is a matter of concern, it is very important that the determination of age should be conducted in a way that is robust, certain in application, equitable and reliable. In my view, Amendment 64A, in the name of my noble friend Lady Neuberger, absolutely fulfils those criteria; indeed, it is a template for such criteria. I strongly support the amendment and adopt everything she said.

Age assessment techniques must be proportionate and fair. If any intrusive measures are to be taken—including dental X-rays, for example—that must be based on proven evidence of scientific reliability, not vague opinions that it might add something. It must be done in a service setting that is suitable for dealing with children, who are the vast majority of the customers under consideration in the cohort we are discussing. I commend proposed new subsection (5) to your Lordships, because it sets out the principles behind my noble friend’s amendment concisely and correctly, in a way that I am sure is the envy of some parliamentary draftsmen who have tried to draft something along similar lines before.

Police, Crime, Sentencing and Courts Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

[Lord Carlile of Berriew (CB)]

My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.

I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.

Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 11th January 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, it is a real privilege to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown. With his immense experience of events in Northern Ireland, he has brought a real reality dose to this debate, and I commend every word that he said to be considered carefully.

The noble Baroness, Lady Chakrabarti, opened this debate with her customary clarity, consistency and commitment. However, it was noticeable that on her side of your Lordships’ House very cogent speeches to the contrary were notably made by the noble Lords, Lord West and Lord Rooker, and I agree with both of them.

There are two issues that have not featured very much so far in this debate. One is that, far from dodging the rule of law, Her Majesty’s Government have chosen, remarkably, to put CHIS on a fully statutory footing, which makes it more part of the rule of law than outside it. I say particularly to the highly respected lawyer, the noble Lord, Lord Hendy, that there is nothing about the rule of law that prevents something like CHIS being part of the rule of law. Indeed, it is right that the use of CHIS should be carefully circumscribed in that way.

The other issue that I particularly want to mention which I do not think has featured at all so far in this debate is the draft code of practice concerning the authorisation and use of CHIS, which says in paragraph 3.2:

“The 2000 Act stipulates that the authorising officer must believe that an authorisation for the use or conduct of a CHIS is necessary in the circumstances of the particular case for one or more of the statutory grounds listed in section 29(3) of the 2000 Act.”


Indeed, if one looks at the paragraphs that follow paragraph 3.2, one sees that the code of practice makes it absolutely clear how careful authorising officers must be in the authorisation of a CHIS, whether just to be a CHIS or to commit a criminal act. Indeed, that code is not merely for guidance; in this instance, at least, it has the force of law.

To take an example other than those mentioned by the noble Lord, Lord McCrea, let us suppose, and I suspect I am not too far from reality in this, that a CHIS is asked and authorised to participate in acts forming part of a serious robbery in order to bring a major robbery gang to justice, maybe the robbery of a bank or a robbery at an airport. The CHIS has to determine whether to do that.

It is worth adding at this point, and I have some recollection of the way this is done from my time as the independent reviewer of terrorism legislation, that CHIS are not merely chosen randomly in a pub to become covert sources; they are considered with great care. In many cases, behavioural analysis is carried out to ascertain whether the CHIS is going to be reliable and will adhere to the authority that they are given. So someone becomes a CHIS not only if they are willing but if they have been assessed as suitable and it is necessary in the circumstances of the particular case.

So how is the CHIS going to react? These are not normally random people whom one bumps into on the high street; they are people who are usually already involved in crime or are in relationships with criminals; they are certainly involved in a criminal fraternity. What is their first reaction going to be? It is going to be, “If I do this, will I be immune from prosecution or do I run the risk of being prosecuted?” When someone takes the potentially huge personal risk, even to their life, of becoming a CHIS, provided that they are told that they must strictly adhere to their permission and not commit any other criminal offences, otherwise they may well be prosecuted, surely it is reasonable within the rule of law, and in the interests of society, not least in detecting and removing serious crime, for an assurance to be given that they will not be prosecuted.

Indeed, what is the reality of what happens without these clear new proposed laws? A CHIS is asked and authorised to commit a criminal offence. If they are prosecuted, they will naturally be horrified that they are being prosecuted because the public authority asked them to commit the act that they have committed. In the real world, the assurances that they have been given by officers will be certain protection against prosecution and the material of abuse of process applications before the court. However, going through that process is far from clear and far from providing the confidence that CHIS need, so I suggest to your Lordships, and respectfully to those who, with completely honourable arguments, have proposed Amendments 1 and 2, that in fact what is proposed is fairer, clearer and in the public interest.

I now turn briefly to Amendments 21 and 22, moved with great clarity by my noble friend Lord Anderson of Ipswich. Like him, I will be very interested in the Minister’s response to this debate. The principle in Amendment 21 is sound: if there is public—I use the word in its broadest sense—corruption in the way in which the CHIS has been authorised to commit the crime, then that public misbehaviour should be capable of prosecution under the broad offence of misconduct in public office. This offence has proved flexible to deal with all kinds of circumstances in which serious and very reprehensible errors have been made by public officers. Indeed, on one occasion, in the Bishop Ball case, it was used to prosecute where some of the indecency offences were out of time—a bishop being in a public office. Amendment 21 seems an entirely sound principle, and I look forward to hearing the Minister’s response.

Amendment 22 seems to provide the balance, which has been discussed by many noble Lords, as to how compensation should be given—for it should be given—if people suffer injury as a result of criminal offences committed by CHIS. The Minister may say that these circumstances are provided for under the existing law, but I urge her to the view—she always listens very carefully to what is said—that it would be of benefit to put the principles of Amendments 21 and 22, possibly amended, into the Bill.

Overall, I respectfully suggest that Amendments 1 and 2 should be rejected, and Amendments 21 and 22 accepted in principle.

[Baroness Hamwee (LD) [V]]

My Lords, the level of responses throughout the debates on the Bill indicates the level of concerns across your Lordships’ House, including concern for the rule of law. But there is widespread acknowledgement that it is desirable to put these matters in statute; I do not think that is being denied.

The preservation of the status quo as regards the place of the Crown Prosecution Service in the criminal justice system is because the status quo—the CPS—has our confidence, and we support Amendments 1 and 2. There is a reason why we are so often advised to leave alone what is working. The DPP is able to consider, and is accustomed to considering, the detail of each case, including whether the individual concerned is an untrained member of the public. I agree that agents are not generally naive young things met in a supermarket queue, or wherever; they are not random choices. Like the noble Baroness, Lady Kennedy of The Shaws, I regret that such a range of CHIS, and thus of criminal conduct authorisations, is combined for the purposes of this debate.

In Amendment 2, the proposed new subsection (3B) sets out a clear sequence. It addresses the principle of whether a CCA can sidestep the detailed considerations to be applied, rather than rewriting those considerations—or rather, writing them differently—as Amendment 3 does. Most importantly, it applies the well-established principles underlying the decision to prosecute. I am very pleased that the noble Baroness, Lady Chakrabarti, is pursuing the issues of practicality and ethics.

European Union (Withdrawal Agreement) Bill

Debate between Baroness Hamwee and Lord Carlile of Berriew

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I venture to suggest to your Lordships that it is sometimes wise to address and solve problems before they occur and to avoid the distress that otherwise would occur. In my nine and a quarter years as Independent Reviewer of Terrorism Legislation, I often stood at border posts, airports and sea ports, watching people being stopped, sometimes for absolutely no reason. But, whether there was a reason or no reason, one saw the shades of emotion of the people who were stopped, ranging from real distress to quiet acquiescence. The advantage of the simple measure suggested in this amendment would avoid the distress; it would mean that speeding through the border post really was quick, and we would solve a problem that is bound to occur if we do not resolve it now.

[Baroness Hamwee (LD)]

My Lords, I am glad to follow the noble Lord, Lord Carlile, on that point. In Committee, the Minister thought that I was advocating two separate systems: a digital one and an analogue paper system, if you like. I was not, and neither is my noble friend Lord Oates; he used the term “alongside”.

The Minister was also concerned that a physical document would be forgeable. There are many documents in use which are sensitive and important. Yesterday, I fished out from my office my Disclosure and Barring Service enhanced criminal record certificate. That is on watermarked paper; so is my copy of my birth certificate, a certified copy which is watermarked, though I discovered—I had not realised this—that the seal on it is not actually impressed. So why not have a physical document?