Justice and Security Bill [HL]

Debate between Baroness Hamwee and Lord Lester of Herne Hill

Monday 9th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendment 25 in this group but I had not given much thought to sub-paragraph (b), the subject of Amendment 24, other than to note it in general terms. A question occurs to me, however, as it is being discussed, as to whether it is normal—perhaps I should not say “appropriate” as I do not want to be judgmental—for primary legislation to refer to a procedural matter in this way and incorporate it into primary legislation. I will leave that there.

My Amendment 25 proposes an exclusion if we are to have decisions by Ministers as to what should not be disclosed. My noble friend Lord Thomas put his name to the amendment without realising, as he has just now prompted me, that my drafting is sloppy and it should have started “or (c)” and not just “(c)”. I apologise to the Committee for that. The information which could not be disclosed would be information relating to conduct which might be a,

“breach of UK or international law”.

I refer specifically to,

“the European Convention on Human Rights, the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment”.

The wording is not original to me. It was suggested by Amnesty International. It was a good suggestion. I know that there are other noble Lords in the Chamber who have far more experience of these issues than I do. It occurred to me that the Minister might say that any such breach should not be dealt with in this way and if there was a claim by an individual about a breach that would be a matter for the court. Perhaps this amendment needs further thought. I would be concerned to be sure that the Government did not withhold such information. This at any rate might be a start and we will get the Minister’s comments.

[Lord Lester of Herne Hill]

My Lords, I rise as probably the least knowledgeable and competent person to say much about this but I do so because of my experience as a member of the Joint Committee on Human Rights. I am glad that the noble Lord, Lord Butler of Brockwell, has raised the issue. I do not expect an answer to my question this evening but it would be helpful if before Report stage what I am about to ask could be answered.

I am mystified about the principles that should apply not to the ISC but to parliamentary Select Committees generally. When we come to consider the Norwich Pharmacal matter, we will be considering the extent to which courts should not be able to order the disclosure of documents that might show serious wrongdoing of the kind indicated in the amendment of my noble friend Lady Hamwee because of the harm to national security or international relations. To that extent, the Executive would be less accountable to the courts than at present. The question then arises of the extent to which the Executive should be accountable to Parliament and especially to parliamentary committees. I understand why the committee we are concerned with should be treated differently from the ordinary parliamentary Select Committee for very good reasons to do with Clause 2 of the Bill. My question is: what ought to be the position with other parliamentary Select Committees? The noble Lord, Lord Campbell-Savours, has tabled an amendment dealing with that general issue.

It would be very desirable if there were a practice direction of some kind, whether in the Ministerial Code or elsewhere, that indicated what needs to be done when a Select Committee seeks evidence of a non-sensitive kind and a security service gives an informed view not about policy but about other matters to the committee. I do not understand whether any practice is laid down on how that should be done and what the limits are when a Select Committee seeks such evidence.

Under the previous Government, when Andrew Dismore was chairman of the committee, we dealt with administrative detention without trial. We tried to get help from the security services. We were helped to some extent by the police service and we took evidence in camera from the police on some matters to do with counterterrorism. However, we were told that we could not do that with the intelligence and security services.

As I said, I do not expect an answer now, but it would be helpful if, between now and Report, we could be informed by letter of what the Government consider to be the general position on those issues. Certainly, if there is wrongdoing of a serious kind involving the sorts of issues covered by the amendment of my noble friend Lady Hamwee, and if that sort of material is not to be shown either to this or any other parliamentary committee, and is to be barred from, or limited in, legal proceedings, I am troubled by the lack of accountability of the Executive to the judicial branch of government as well as to Parliament itself.

Sexual Offences Act 2003 (Remedial) Order 2012

Debate between Baroness Hamwee and Lord Lester of Herne Hill

Thursday 5th July 2012 Lords Chamber

[Baroness Hamwee]

My Lords, the remedial order is one that the House might well have expected to be considering earlier than July 2012. I recall the Statement made by the Home Secretary and repeated in your Lordships’ House responding to the order of the judgment of the Supreme Court in February 2011. “Reacting” might have been a better term than “responding”. I recall the Home Secretary saying that she was “appalled” by the ruling. The end of her Statement laid into the courts and referred to achieving,

“a legal framework that brings sanity to cases such as these”.—[Official Report, Commons, 16/2/11; col. 960.]

A number of us reacted to that reaction.

The Joint Committee on Human Rights has considered the appropriateness of the remedial order and my noble friend Lord Lester of Herne Hill will deal with its report. In February 2011 I recall my noble friend Lord Carlile of Berriew asking why we were not to get amendable primary legislation rather than an order, particularly given the controversial decision that there was to be no judicial procedure. The Explanatory Memorandum to the order says that we have it in this form in order to avoid delay. It seems to me that there has been some delay. Perhaps the delay is a proper delay and we will have a better outcome because of it. The JCHR has considered the matter twice. A Bill is before your Lordships’ House now which could give us the opportunity to deal with amendable provisions.

I recall my instinctive reaction that a review by the police was not appropriate and I have not really varied from that. The police review seems to be an administrative process. The court imposes the original sentence knowing that a sentence of 30 months plus means going on to the sex offenders register. That is mandatory. Perhaps the noble Baroness can tell us more about the procedure. She said that the Government have taken the view that the police are in the best position to make an initial— I think that was her word—assessment of the risk, which seemed to imply that there would be a second stage to the process. Of course, there may be if there is an appeal, but I may have misunderstood her.

I hope noble Lords will understand that I am not seeking to justify the offences, but does the offender get a hearing? That seems to me to be a basic right. What is the arrangement for allowing the two sides, as it were, to be argued? I am also uneasy that a further review may be deferred at this stage for a further 15 years. Very long periods seem to be involved. Can the noble Baroness also tell your Lordships about the form of the appeal to the magistrates? Listening to the debate, I have only just realised that I am very unclear about what form that may take. I am also uneasy about this being an appropriate matter for the magistrates’ court. I know that the JCHR accepts that, but I am a little doubtful whether, in so serious a matter, it should not go to a higher court. The noble Baroness, Lady Smith, asked about numbers. I had assumed that all, or almost all, offenders would seek a review. I am not sure why they should not.

On the regulations, I note that CEOP, ECPAT and others have said that these will close loopholes and enable more effective offender management. The requirements certainly tighten things up quite considerably. When the Government consulted, I wonder whether they had responses from organisations such as the Howard League which are concerned with the rehabilitation of offenders.

The Explanatory Memorandum says that the notification requirements will form an invaluable tool. I latched on to the word “invaluable”, given that the impact assessment has been unable to quantify the benefits. Perhaps that is a cheap point because I can see that it might be difficult to put a price tag on that and one would not want to put a price tag on the offences that might be prevented.

[Lord Lester of Herne Hill]

My Lords, I speak on behalf of the Joint Committee on Human Rights. I begin by pointing out to the noble Baroness, Lady Smith of Basildon, that on our committee, which was unanimous throughout consideration of this matter, were the noble Lords, Lord Dubs and Lord Morris of Handsworth, the noble Baronesses, Lady Kennedy of The Shaws and Lady Lister of Burtersett, and it was chaired by Dr Hywel Francis with Mr Virendra Sharma, MP. They are all supporters of the Labour Party and all took an entirely different view from that just expressed by the noble Baroness about this order. I am, frankly, astonished by the criticism that has been made on behalf of the Labour Party.

The noble Baroness began by making some remarks about prisoners’ voting rights, contrasting that with the attitude taken with regard to this order. I remind her that under the previous Government, when the right honourable Jack Straw was Secretary of State for Justice and Lord Chancellor, no action was taken to give effect to the judgment of the European Court of Human Rights in the Hirst case and no action was taken in response to the recommendations repeatedly made by the Joint Committee on Human Rights. What is most welcome about the response of this Government to the judgment of the Supreme Court is that a highly emotive issue has been treated in the best possible way, by a process of parliamentary scrutiny of which I, personally, am very proud.

Under the Human Rights Act, a special procedure has been included. Where a court makes a declaration of incompatibility with a convention right, the special procedure allows the Government of the day to proceed by subordinate legislation—by affirmative resolution of both Houses—instead of having the need for primary legislation. This is done in order to bring our legal system into full compliance with European human rights law in an appropriate way, provided always that there is effective scrutiny.

The Joint Committee on Human Rights has the special role of scrutinising draft remedial orders and reporting to both Houses and to the Government as to whether there has been proper compliance. What has happened in this case is extremely welcome. In our first report, we were critical of the first draft remedial order, as my noble friend the Minister acknowledged. Then, the Government responded by listening, and by giving effect to all of our main recommendations. In other words, the work of our committee—an all-party committee, and a beyond-party committee, since it is not controlled by the Government—influenced the Government in reshaping the order which is now before the House for approval today. If one reads the most recent government response to what we have done, dated March 2012, one finds each of our points identified, responded to, and heeded. That is a sign of mature Government, acting in a responsible way, being accountable to Parliament through this watchdog committee, and now in this debate, in both Houses, by affirmative resolution.

The noble Baroness, on behalf of the Opposition, has queried in detail the impact assessment that has been tabled. I take the completely opposite view. I regard the impact assessment statement as admirable. It lists five different options. It explains why one of those five options was chosen. Of course it cannot quantify the benefits of complying with the law of the land, because the main benefit is to secure the rule of law. That is not something that can be measured in monetary terms and it is quite unreasonable to ask the Government to do so. The main thing, with which I should have thought the Opposition would agree, is the need to comply with the judgment of the Supreme Court of the United Kingdom.

--- Later in debate ---

[Baroness Hamwee]

My Lords, this is a terribly complicated area and I am sure that noble Lords are, like me, struggling to follow the sequence of events. It would be really helpful if the noble Baroness were to write to us afterwards, because this involves quite technical details and I, for one, am having trouble putting them into the context of the original offence and what the automatic and discretionary consequences of a conviction might be.

[Lord Lester of Herne Hill]

To be helpful, perhaps I may make another practical suggestion. I forgot to say that in its latest report the Joint Committee on Human Rights asked seven questions for clarification, all of which have been clarified by the Equalities Minister Lynne Featherstone in her letter of 15 June 2012 to the Joint Committee. They are important issues and, rather than trying to get them on the record here, it would be sensible if the letter I referred to or some other letter were copied to those who have taken part in the debate, put in the Library and made part of the public record. I do not want the Minister to have to face yet further questions tonight, given that it has all been dealt with satisfactorily but not widely read.

Terrorist Asset-Freezing etc. Bill [HL]

Debate between Baroness Hamwee and Lord Lester of Herne Hill

Monday 25th October 2010 Lords Chamber

[Baroness Hamwee]

I have tabled Amendment 12 in this group. First, with regard to Amendment 10, I hope we will not hear from the Minister that it is not necessary to put the provision into the Bill because it is the practice—a point I may make later in a different context.

I might have said that my Amendment 12 was substantially the same as the amendments tabled by the noble Lord and the Minister. The point is the same—that the same or similar evidence should not be used to make more than one interim order. I could make the Government’s arguments against proposed new paragraph (b) in my Amendment 12, but I would like to hear them do so.

As regards the second limb of my amendment, it seemed to me that a time limit would be easier to deal with and could be more clearly analysed than relying on whether evidence is the same or substantially so. A time limit, although six months may not be the correct one, would make the matter absolutely clear—no one could argue with it or argue its nuances.

[Lord Lester of Herne Hill]

I agree with the noble Lord, Lord Pannick, and with my noble friend. I am speaking partly as a member of the Joint Committee on Human Rights, whose report was published on Friday last. We took the most unusual step of publishing our preliminary report before we had seen the Government’s response. I am therefore sure that once the committee, which meets tomorrow, has had a chance to look at this debate, it will be too late to influence what happens in this House, but I hope it may be looked at in the other place.

I shall not waste the time of the House by citing what is in our report as it can be read by anyone who is interested. However, one point at the end of it bears on all these amendments. At paragraph 1.47, we ask the Government to explain why the opportunity is not being taken in the Bill to provide a comprehensive and accessible legal regime for terrorist asset freezing, and therefore to provide Parliament with the opportunity to scrutinise those powers for human rights compatibility, the lack of which so troubled the Supreme Court. That is a general and important point, and it may have to be pursued if not here then in the other place.