Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Monday 26th January 2015 Lords Chamber

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

My Lords, Amendment 75 is not a probing amendment. This is for real. Perhaps the most challenging feature of Part 2 of this Bill is the reintroduction of internal relocation orders into the TPIM regime, which many of us would regard as a regrettable necessity. Amendment 75 concerns what should be the appropriate level of judicial oversight in these cases and would, I believe, go some way to take the sting out of the highly toxic question of internal relocation.

The amendment is designed to give effect to one of the independent reviewer’s 10 recommendations made in his March 2014 report into TPIMs—recommendation 3. Put simply, although I fear I shall have to explain the amendment a little more fully in a moment because, on its face, it is less than crystal clear in its effect, the position is this. Under the present TPIM regime, one of the four conditions that has to be satisfied before a TPIM order can be made—it is called Condition A—is that the Secretary of State “reasonably believes” that the person concerned,

“is, or has been, involved in terrorism-related activity”.

That is the particular condition which is referred to in Section 3(1) of the 2011 Act, which in turn is what Clause 16(1) of this Bill relates to.

At present, if a TPIM order is made, the courts can review it or hear an appeal ultimately against it only on a limited basis. The court is expressly required by the statute to apply the principles of judicial review. In other words, the court decides only whether the Secretary of State was acting reasonably or perversely in reaching her belief. The court does not have the jurisdiction to reach its own conclusion. This would continue to be so if Clause 16(1) is enacted in its present form.

Personally, as I made plain in what I regret was my rather overlong speech at Second Reading, I can see no true distinction between the Secretary of State reasonably believing something and her being satisfied of it on a balance of probabilities. But the more important point for present purposes is this: even if there is a difference, the decision as to the person’s involvement in terrorism under Clause 16(1) as it stands, subject only to the limited scrutiny of judicial review, is one solely for the Secretary of State and not for the courts. Like the independent reviewer, David Anderson, I believe that the decision should be for the courts, especially—I emphasise “especially”—in those cases where the Secretary of State is to deploy that most disruptive of measures, now to be made available to her, internal involuntary relocation—“internal exile” as it has been called. Indeed, that was the term used at Second Reading by the right reverend Prelate the Bishop of Durham.

Make no mistake, these orders—because we used to have them in control order cases—are deeply resented, not least, of course, by the persons’ families, who can be very severely and very harshly affected. They contribute worryingly to what some civil liberty and minority groups call the “folklore of injustice”. At Second Reading , the noble Baroness, Lady Kennedy of The Shaws, called it the “folklore of oppression”. It was, said David Anderson, perhaps unsurprisingly, only “with a heavy heart” that he came to the recommendation that this measure should be reintroduced as now is provided for by Clause 12 of this Bill.

My amendment is tailored simply to apply to those TPIM orders that require relocation. It provides that in these particularly troubling cases it will be for the court to reach the final, substantive decision, on the balance of probabilities, as to whether the person being internally exiled is, or has been, involved in terrorism-related activity.

I should make it plain that there is nothing particularly novel or radical about this proposal. The Prevention of Terrorism Act 2005 introduced control orders in place of the original discredited Belmarsh regime of the internment of foreign suspects without charge and without trial on an indefinite basis. The 2005 Act, by Section 4(7)(a), provided in terms that the court could confirm a derogating control order only if,

“it is satisfied, on the balance of probabilities, that the controlled person is an individual who is or has been involved in terrorism-related activity”.

That is precisely the position which, I suggest, should be achieved here.

As Mr Anderson pointed out at paragraph 6.16 of his 2014 report, the Government had already accepted in relation to the earlier proposed ETPIMs legislation—the enhanced TPIMs scheme, which in the event never came into being—that at the High Court review of such enhanced orders the Home Secretary should be required to prove the suspect’s involvement in terrorism on the balance of probabilities—again, just as I suggest should be the position here.

The Joint Committee on Human Rights, at paragraph 4.14 of its report on the Bill just this month, welcomed the introduction of the balance of probabilities test, but added that,

“in order for this change to make a real practical difference, we recommend that the TPIM Act be amended to require the court also to consider whether the balance of probabilities standard was satisfied, in place of the current, lighter-touch judicial review standard. Such an amendment would give effect to the unimplemented part of the Independent Reviewer’s recommendation”.

Mr Anderson himself, at paragraph 6.17 of his 2014 report, having doubted whether his proposed change—from the Secretary of State reasonably believing the suspect’s involvement in terrorism to the court being satisfied of this on the balance of probabilities—would have made a difference in any of the earlier TPIM cases, importantly added:

“It would however help reinforce the legitimacy of TPIMs, by enabling the Government to say (as it cannot at present) that a TPIM notice may only be upheld if it is proved to the satisfaction of the High Court that the subject has been involved in terrorism”.

My proposed amendment, as I have explained, is in fact rather more limited than Mr Anderson’s recommendation. Rather than applying to all TPIM orders in future, it would apply only when internal relocation is one of the measures ordered. There is of course no such phrase as “internal relocation” or “involuntary relocation” in the Bill—it is not used in Clause 12 or indeed in paragraph 1 of Schedule 1 to the 2011 Act, which Clause 12 amends. Therefore my amendment, I hope accurately, has had to spell out the particular circumstances which constitute the internal relocation and where it would apply.

I hope that the House will support this amendment and indeed that the Minister may himself come to see its merits. It would, I suggest, send out an important message that we in this House recognise the very real problems that result from internal relocation orders and are concerned to balance the need for them, as best we may, by strengthening the safeguards against their inappropriate use. The court should be given this additional responsibility in its oversight role. The independent reviewer’s recommendation ought not lightly to be rejected. The fact is that I have yet to hear or read of any cogent, coherent basis for rejecting it. I beg to move.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have spoken about internal exile, as I choose to call it, on a number of occasions in this House. I am persuaded by the independent reviewer that, because of the threat faced by this country at this time, there may be the rare occasion when one would want to disrupt the connections and associations in a particular place of someone subject to a TPIM order. It should be used on the rarest of occasions, and the standards that the courts should look to in making the decision should be high.

I support what the noble and learned Lord, Lord Brown, has said. We should see this idea as a huge departure from what we would consider normal. For people to be taken away from their families and the place that they know and sent to live somewhere else in the country is a very hard thing. We have to recognise that sometimes it will disrupt good associations as well as negative ones, so that they are no longer with their mother or father, or with some of the people who are voices of sanity as distinct from siren voices. It surely makes sense to say that this is such an exceptional step that there should be this additional safeguard, which has been proposed by one of our most senior retired judges.

Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 20th January 2015 Lords Chamber

[Baroness Warsi]

Following on from my noble friend’s comments, would our response and assessment of what would amount to reasonable grounds differ depending on the country that was making that request and on the laws of that country?

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I declare an interest as a member of the Joint Committee on Human Rights.

I have a number of amendments in this group and they all relate to judicial oversight of the powers to remove passports and travel documents. They are all ways of giving weight to the right to a fair hearing, as provided by Article 6 of the European convention. Basically, they are ways of making the oversight of the power procedurally fair and it is on procedural fairness that I want to make this contribution.

The relevant parts of Schedule 1 provide for a judicial role and are modelled to some extent on the provision made for warrants for further detention in Schedule 8 to the Terrorism Act 2000. That governs the detention of a person arrested on reasonable suspicion of being a terrorist. If you make a close comparison of the two schedules, it becomes clear that the procedural safeguards that were introduced into the Terrorism Act are not present in this Bill. This makes it significantly weaker as a result.

When Schedule 8 to the Terrorism Act was procedurally strengthened it was as a result of some of the recommendations of the previous Joint Committee that I was not on. That kind of coherence should be there in legislation of this sort. At the moment Schedule 1 is not compatible with the European Convention on Human Rights; the requirements on fair hearing are certainly not. I want to outline where the weaknesses lie, which is why I have tabled my amendments.

Amendment 24 refers specifically to,

“a warrant of further retention”,

to draw that analogy with the warrant for further detention that exists in the previous terrorism legislation. I have an amendment relating to gisting too. I repeat what others have said: a person who is having this power exercised against them really should know the basis on which the documents have been taken and there is the need for an extension. It is just not good enough to say, as it does in the Bill, that we should be preventing people dragging their feet or not being diligent enough. While we want to ensure that people are acting diligently and expeditiously, there has to be more to it. There should be some requirement to consider the grounds for the retention of the documents, so I have inserted that into my Amendment 27.

This is all drawing on the report of the Joint Committee on Human Rights. With regard to Amendment 29, I urge the Committee to recognise how important it is to have oral argument in something as important as this. To have it done just in writing is not good enough. This is all fair hearing stuff. I really urge the Government to have regard to the ways in which this has been done in previous legislation.

With regard to Amendment 30, I am very concerned that while the Bill provides for a closed material proceeding at the extension hearing, there is no provision for special advocates. I am no great fan of special advocates— that process of having secret hearings—but I certainly feel that if you are going to have a closed material proceeding, you really must have protections for the person who is having their documents taken. I urge the Government to look at this again because I do not think that Strasbourg is going to think that it is compliant. Strasbourg has accepted the procedure that we have introduced here but one of the things it sees as being an important element is the role of the special advocate. There is a case waiting to come up in Strasbourg—Duffy—but I think we will find that this is going to fall foul of our obligations. Having special advocates involved is a very important element here.

Amendment 31 is really just tidying up in order to make the procedures parallel with those in Schedule 8. Amendment 32 says that if the court allows closed material proceedings, the state must provide a summary. Of course, if the state does not want to do that and there are special reasons why the intelligence agencies do not want it to be in the public domain, it is open to the state to withdraw. I think it is important that we use the model of other legislation that we have to help us get the best kind of legislation that the Government are seeking in this set of circumstances.

Those are the reasons for my amendments. I support the reduction to seven days that is being proposed by the noble Baronesses, Lady Hamwee and Lady Ludford, and the noble Lord, Lord Thomas of Gresford. I hope that the Government will see why it is important that we create fair proceedings around this special set of powers.

[Lord Macdonald of River Glaven]

My Lords, I support what the noble Baroness has said. There cannot be any doubt that the power to exclude British citizens from their own country is a wholly exceptional power of the sort that we have not seen before. In fact, it is warranted by the threat that emanates from the globalisation of terror and the ease with which young men in particular, but some young women as well, can pass in and out of parts of the world that are controlled by terrorists, and of course the threat that they represent to us when they return from those zones.

However, it is the exceptional, drastic nature of this power, warranted though it is, that requires that procedural fairness is absolutely guaranteed by the processes under which the power is exercised. It is because the power is so extraordinary that it is so important, in order to avoid the scenario that the noble Baroness was talking about at the outset of this debate, that we observe the highest degree of procedural fairness. To that extent, I support what she has been saying.

Counter-Terrorism and Security Bill

Baroness Kennedy of Shaws Excerpts

Tuesday 13th January 2015 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I share the horror that has been expressed in this House about the events that took place last week in Paris. They followed on the real revulsion that we all shared about the barbaric killings by ISIL in northern Iraq. Those were the precursors of this Bill. It would be all too easy to write a blank cheque to Government to do whatever it takes to counter terrorism when we have just had these experiences. However, we should be deeply aware of the risks associated with erosions of civil liberties because once we create paradigm shifts inside the law, the reality is that they are very hard to reverse.

I have seen this over laws that were introduced at the time of the Irish troubles in the 1970s when I started doing work in terrorism cases. You actually find that the changes that are introduced inevitably leach into the system as a whole. We see that more recently with the secret courts, which were introduced as an isolated and extreme measure. We have now seen institutional creep and that “exceptional” process is moving into other parts of the system. Our commitment to open justice is thereby being eroded. We must be clear that emergency legislation can never be vacuum-packed. It permeates attitudes and standards—and, I am afraid, rarely to the good.

The Bill was introduced to deal with the threat of radicalised young people leaving the United Kingdom for places such as northern Iraq, Syria or Somalia, participating in terrorism abroad and then returning to this country highly trained to wreak further harm. Those were the concerns that motivated this legislation, and the ones that we can all understand. The Joint Committee on Human Rights, on which I serve, accepted that preventive steps should be taken to stem the flow of travel to join those insurgencies. There was also a very real recognition by the Joint Committee that we have to use the law in these cases. We all felt particular horror at the idea of young women going off to make themselves available to this jihadist struggle by becoming jihadist wives. One wonders whether they are finding it quite as idealistic and romantic as they imagined it would be when they started out.

The prevention of travel is supported by the parents and families of young people. However, it must be pinned down with real safeguards and not operate on the hunches of officers at ports, with the risk of misuse being great and the risk of mistaken use being considerable. We on the committee therefore accepted that there was a need to look at that and that there were gaps in what was legally available to the authorities.

We were also sympathetic to the idea of managed return. We have to find ways to enable the return of those who bite off more than they anticipated—the people who go to those places, see “The horror! The horror!”, to quote Conrad, become sickened by what they see, and who must want to return to the sanity of their lives in this country. Therefore opportunities to bring those people back and find ways to bring them back into our communities should be found.

What is often not understood by many people is that, unlike in previous generations or in previous times, people who are currently in Iraq are in communication with their families—that is the nature of modern media—so their families are able to phone them and say, “Please, come home”. They are able to contact them by e-mail. Their e-mails may be being intercepted, but they certainly communicate quite frankly, and some of them do not realise the extent to which the things they say might be a source of evidence against them on their return.

We should therefore be thinking about different categories of people. There are those who are undoubtedly committing horrible crimes over there. We have a responsibility as a nation to prosecute them should they come within our jurisdiction. If we have the opportunity to do so, they should be put through the legal processes, prosecuted, found guilty and imprisoned as our nationals for committing crimes aboard. That should be one of our priorities. We have to ask ourselves whether we will enable that by the introduction of the system we are currently looking at.

We also have to try to prevent people coming back who might commit further crimes. They may very deliberately come back, claiming that they just want to come home, but have ulterior motives. It will be important that the authorities are able to examine those possibilities, so we have to look at procedures that could be created to help us to deal with all that. We need to revisit a number of elements in the Bill but all the time we have to have two important things at the back of our minds. The first is the importance of avoiding the erosion of civil liberties and doing things that are not proportionate to the need. The second thing we have to think about is whether, if we risk miscarriages of justice or the misuse of some of the new powers that are given, we will end up alienating large numbers of law-abiding, decent Muslims in our communities, who are important to us in trying to find solutions to the problems we currently face. Collective punishments are what people feel, and if people feel or perceive injustice, it leads to very negative consequences. We have to have that high in our minds as the Bill goes through the House.

I want to consider the issue of removal of passports when people are leaving the country and there is reason to believe that they may be going to places where they are going to engage in terrorism in one form or another. Is the seizure of a passport from someone suspected of travelling to become involved in terrorism proportionate? We would say yes, but it depends on the safeguards that surround the exercise of the power. The Joint Committee on which I sit noted that while Schedule 1 provides for a judicial role to govern this power, it is not, for example, as strong as the safeguards that are provided in the judicial oversight of warrants of further detention, when someone is detained on reasonable suspicion of being a terrorist. It seems sensible to have parallel provisions. There is no provision, for example, for gisting: giving people an entitlement to having the gist of what the reasons are for removing their passport and not allowing them to travel.

The Bill provides for judicial consideration only after 14 days, at which point the judge is under a duty to extend the period of retention of the passport to 30 days. That is on the basis that he has to be satisfied that the investigation has been conducted diligently and expeditiously. Is it really good enough that he just thinks they are moving fast enough or that they are being hard-working enough? Should we not be expecting more to be in the judge’s mind? It also provides for a closed material procedure at the hearing—the secret process that I have mentioned before—and yet there is no provision for the excluded party to be represented by a special advocate. Warrants of further retention should be just the same as warrants of further detention. The Joint Committee on Human Rights recommended that application for the extension of retention should be within seven days, not 14 days, and the judge should be able to issue a warrant only if satisfied that not only was the investigation being pursued diligently and expeditiously but also that there were reasonable grounds to suspect that the person intended on leaving the country to become involved in terrorism or related activities. The person should be informed of the reason for the exercise of the power against them. It should be done at the earliest opportunity and not once they have got a lawyer further down the line and during a process of disclosure later on. That gisting should be referred to on the face of the Bill as it is so fundamental to due process.

If you have secret hearings, there has to be a provision for special advocates. I urge the Minister to look at that. There should also be legal aid and compensation should be available in serious cases where it becomes clear that there has been some misuse of the powers; for example, where the opportunity for someone to go to their grandmother’s funeral or to a family event has been completely destroyed and cannot be revisited ever again.

The most serious power is the temporary exclusion order. As your Lordships know, the Joint Committee on Human Rights has made it very clear that it considers that this is an inappropriate power. We should be thinking about managed return, which is an important thing for the Government to be engaged with. Denmark is doing very successfully and there are many things that we can learn. However, I heard a number of Members of this House being dismissive of the idea of a notification of return to the UK being expected from anybody who wants to return. I go back to the fact that most of the young people in question are in touch with their families from time to time. Those families are trying to persuade them to come back so they could very easily give the authorities notification that they want to come back. Therefore, you could go through the process of having an order made of notification that they want to come back and then the procedures in the Bill could be adapted to fit a notification order. That would replace what is there already without very much surgery to the Bill. It would avoid us getting involved with all the difficulties described by the noble Baroness, Lady Berridge, and others regarding our relations with other countries.

It is not enough just to talk to Turkey. People will not come back on the same routes; they might come back in many different ways, through other countries. We will find ourselves becoming very much the outlier with other countries if we are the people who depart from international law in the protections provided by having a passport. That seems to me a very sensible option, and to dismiss it out of hand is a failure of government. The Government have clung to the temporary exclusion order because, initially, they wanted to take people’s passports away from them. They then realised that that was not on because of our international obligations. So now these temporary exclusion orders are being proposed when in fact they do not have to go that far in any circumstances. The notification of return orders could be substituted and I would urge that this be done.

I also ask the House to consider the cost of having people over there, interrogating people who come to ports, and having to arrange with the authorities there for housing people on a temporary basis if they want to manage their return. We should consider the implications of all that financially—and we are saying that the reason we are doing it is that we cannot afford supervision or surveillance. That seems a very strange consideration of the financial problems that we might have.

I again urge the introduction of a judicial role in all this. The independent reviewer again expressed his concerns about the temporary exclusion order and said that judicial scrutiny using judicial review was pretty unlikely if someone was abroad. So we want to encourage people to look at the whole business of the judicial role prior to the making of the temporary exclusion order or, indeed, the notification of return order. There should also be a renewal requirement to enable Parliament to consider whether there is a case for continuing these powers once they have been reviewed by the independent reviewer and he has assessed how they have been conducted. I have great reservations about all this because of what it does in relation to our international commitments. We really are making a big mistake, and I do not think that people who have said with great coolness that we need these powers have thought through the implications for our international relations and the standards that we are trying to set around the world.

On TPIMs, I have always resisted the idea of relocation, because I have seen it up close and seen the effect on families. I saw a young mother giving birth to her second baby while her first child was still unable to walk; they were being moved out of London to Leicester, to live on the 18th floor of a multi-storey block, where they had no family and where she had no support systems at all, with none of her sisters living there, or her mother. We have to have real consideration for what this does to families, and we have to remember the impact on what is described as the folklore of oppression as it is seen by the Muslim communities. This is not a sensible route to go down. I know that the independent reviewer said that he had a heavy heart in thinking that it was necessary sometimes. I hope that it is used with great limitations, if it is used at all. I always thought that it was one of those things only ever used by totalitarian regimes—sending people to Siberia or Pinochet sending people to the remoter parts of Chile. I really regret that we are even thinking about doing it here.

Finally, I want to talk about universities. I am the head of an Oxford college and I know that, across Oxford, there is real concern about the introduction of this power. Others have spoken to it, so I am not going to repeat what they have said, but academic freedom is very important. The idea that an academic will feel in some way obliged to report on a student whom she feels is asking questions or expressing views that seem inflammatory is a really worrying thing for academic freedom. It would destroy the trust that is so important between the student and the academic, which is where learning is at its best—the point where people are experimenting and thinking the unthinkable. That is where you beat it down with good argument. The idea that we should not have freedom of expression in our universities and that we will have people reporting each other, or that when we go to speak at a university we will have to declare and send ahead the notes of our speeches, is really not workable. I ask the Government to think again and at least to remove universities from the list. I actually think that the whole Prevent project should be looked at again.

A real issue is undoubtedly presenting itself to us as a society, but I say to all of us, “Beware”, because we can give away the most important things if we are not careful—the things that we are most proud of.

Modern Slavery Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 10th December 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I conducted an inquiry into trafficking for the Equality and Human Rights Commission in Scotland, and it was extended beyond sexual trafficking to migrant workers and domestic servitude. I went to Scotland imagining that it was unlikely that I would come across cases of domestic servitude, because the experience I had had in this field had usually been in the diplomatic area, when ambassadorial families had brought to this country people who had then fled the domestic setting, claiming serious abuse. But one of the things that came to light was a particular case involving a very wealthy family who had businesses in Scotland but had originally come from the Indian subcontinent. They would regularly bring young girls from back home, where their relatives still lived, to Scotland to work for them and care for their children. We can well understand any family wanting to have someone to care for their children who, for example, speaks the language of the place they come from, can continue certain traditions, and can cook in a style that the family might find more appealing.

The shocking thing was that the young woman had fled from the home of this family and given an account similar to the ones that we have heard—sleeping on the kitchen floor on a mat, not being allowed out of the house, not having access to her passport, and so on. But it was even worse than some of the circumstances that we have heard, in that her family back home were the people who received payment, directly from accounts presumably kept alive back in Bangladesh. The problem was that she did not have access to money; she only discovered that she might have rights because, on one occasion when the family allowed her to accompany the children to the park, she met someone else from back home, who had a discussion with her about her circumstances and her rights. It was through the intercession of the other person that, in fact, police went to her house and the girl’s circumstances were discovered.

--- Later in debate ---

I do not really understand why the Government to date have not wished to move on this. As the noble and learned Baroness and my noble friend have said, we are not saying that the Government must do this now. This is an enabling power, so that in due course, when the money is there and when all the evidence that the Government believe is necessary is there—we think that the evidence is there now—they will be able to act so that these people who are suffering in bonded labour will have a way to get justice. These amendments contain only enabling powers. They would allow a future Secretary of State to diversify and to add the work of the GLA to other sectors if and when appropriate—no more, no less.

[Baroness Kennedy of The Shaws]

My Lords, I support these amendments. I see them as a corollary of our concerns about supply chains. Increasingly in my work, I am looking at issues concerning the corporate world and human rights. Many leading figures in the corporate world are anxious to address these issues because of the implications for their brand and damage to their reputation internationally if they are seen to be participating in activities which breach human rights.

Outsourcing is similarly an area where there are risks of high levels of abuse. There needs to be a real awareness that, as with supply chains, in outsourcing aspects of a business there is often a risk that those who are providing labour are going to be exploiting and abusive of those they are bringing in. As I mentioned, I chaired an inquiry in Scotland for the Equality and Human Rights Commission. The whole of the central belt of Scotland is a provider of soft fruits and brings in migrant labour from abroad. It was the Gangmasters Licensing Authority that helped to eradicate some of the abusive practices that were happening there. The workers were living in the most terrible circumstances and there were issues around not just what they were being paid but how they were being treated. It falls to the Gangmasters Licensing Authority to raise standards as well as to bring prosecutions. The inspectors within the GLA are often former police officers. I was very impressed with their commitment and with their evidence to the inquiry. As we have heard, this is moving beyond food and agriculture and into construction. It is also moving into care, as the noble Baroness, Lady Kennedy of Cradley, mentioned. In this area, the ill treatment of workers is great, as it is in the outsourced elements of hospitality, such as cleaning and laundry.

I urge the Government to look at this. I accept, as do others, that there are financial constraints and that there would need to be resourcing. I support the idea of enabling legislation so that when the time is right we will not have to take up more parliamentary time and the expansion of the Gangmasters Licensing Authority’s remit can be speedily introduced.

[Lord Whitty (Lab)]

My Lords, I will intervene very briefly because I agree with almost everything that has been said. I was the Minister who brought in the Gangmasters Licensing Authority. At that time there was considerable scepticism as to whether we could use administrative means to clean up what was broadly recognised as an exploitative situation within horticulture and agriculture. I wished then that it had been slightly broader than that because, even more than 10 years ago, it was evident that some of these terrible practices extended to some other industries. Indeed, the same workers were being used. However, we decided to focus on horticulture and agriculture. The general message is that, although we have not entirely eliminated exploitation, bad living conditions and illegality from those sectors, they are a lot cleaner than they were. The effectiveness of the GLA is widely recognised.

The important point that has not really been emphasised is that the GLA has the ability to sanction the users of the labour. It is not just the gangmasters who are in the frame but the farmers and the horticulturalists as well, and that has driven a change of behaviour and attitude which has been backed up by those who use the produce—the retailers and the processors. There is a whole supply effect because the direct employer of labour that is being provided under these terrible conditions can be sanctioned.

This situation pre-eminently applies in parts of construction and it very evidently applies in catering and hospitality and in the care sector. If pressure is not put on the apparently respectable users of that labour then the sanctions, although not entirely ineffective, are less than complete. I recognise, as other noble Lords have done, the need for more information and more resources but we must use this legislation to enable the Government to extend this kind of approach to these other sectors at the appropriate point.

Modern Slavery Bill

Baroness Kennedy of Shaws Excerpts

Monday 8th December 2014 Lords Chamber

[Baroness Lister of Burtersett]

I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.

The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,

“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.

We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.

I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.

I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.

I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.

I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.

[Baroness Howe of Idlicote]

My Lords, clearly things have moved on a little since we debated the Immigration Bill on 7 April. Nevertheless, there is clearly a long way to go. I am particularly grateful to the noble Lord, Lord McColl, who I thought made a brilliant speech, and to the other noble Lords who signed this amendment and again brought this issue before your Lordships’ House with Amendment 86H. I am pleased to support them.

While I welcome the action of the Government in trialling the delivery of a child trafficking advocate system, I am disappointed that they are not being bolder in their statement of the principles that would underpin the role of the advocates. I agree with the Joint Committee on the draft Bill, which said that pilots are not,

“a substitute for a statutory advocacy scheme”.

Since that report, the UN Committee on the Rights of the Child has recommended that the UK prioritises,

“the appointment of a competent and statutory guardian as expeditiously as possible to safeguard the best interests of the child during the criminal justice process and ensure that a child victim is referred to asylum-seeking or other procedures only after the appointment of a guardian”.

There are many pages of recommendations from well established and respected international organisations on how a guardian advocate system should function, which would allow us to set out a framework that could be adopted by the Bill.

Modern Slavery Bill

Baroness Kennedy of Shaws Excerpts

Monday 17th November 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I congratulate the Government on their recognition of the seriousness of this issue and I welcome the Home Secretary’s determination to see that the United Kingdom leads the international community in tackling one of the most serious human rights challenges in the contemporary world. As others have said, in this area there can be unity in this House and a strong, coherent piece of legislation can be produced which has cross-party support.

There is nothing new about the exploitation of human beings by their fellow man. Slavery is of ancient vintage, as we know. What is new is globalisation. While many people have been lifted from poverty by the expansion of markets, many others live on the dark side. All the advances in technology and communications which stimulate the operation of global markets, from cell phones to connection through e-mail and the internet, from the electronic transfer of money to ease of travel—all those things which help markets to work also feed the murky underbelly of the market with equal assiduity. I know this from my work in the criminal courts. Globalisation has brought in its wake an explosive increase in illegal trade—in arms, drugs, fissile material, human organs, genetic material such as human eggs, babies for illegal adoption, women, children and young men for sex or for domestic servitude or forced labour, as others have said. There is nothing that cannot be sold and I emphasise that law is fundamental in addressing this, both nationally and internationally.

I had the privilege of acting as the investigative commissioner for the Equality and Human Rights Commission in Scotland, which reported on human trafficking. It was the UK Equality and Human Rights Commission that had charge of this inquiry. We looked at Scotland because it gave us an insight into a smaller area that could provide lessons for the whole United Kingdom. I also sit on the Joint Committee on Human Rights and have acted in a professional capacity as a lawyer for trafficked women. This is, therefore, a field in which I have a special interest and perhaps some expertise.

I, too, would like to see this Bill being more victim-focused—at the moment it is not. The reason prosecutions are difficult to bring and convictions hard to secure is that victims are in abject terror. I have taken evidence from victims of trafficking, and you can feel the fear in the room when they give their accounts. Their fear is not just for their own lives but those of their children—if they have children back home—of their parents, and of other people they love. They know the kind of people they are dealing with. They know the consequences of involving the authorities. They are often also fearful of authority, because they come from places where authority is not to be trusted. It is fair to say that they do not know who to trust.

The way to secure better outcomes and to end this vile abuse of human rights is to concentrate on the victims. That is how you get successful prosecutions; that is how you get to the traffickers. So there should be a statutory right to assistance—as others have said in this Chamber—with a requirement to conduct individual assessments, case by case, of those who we fear have been trafficked.

The national referral mechanism has to be reviewed and the time for reflection extended to—I agree on this with the noble Lord, Lord McColl—at least 90 days. People who are afraid and who start giving their account need time to reflect on the implications of it. They have to be sure what the future will hold for them before they can feel confident enough to commit themselves to giving evidence in court against those who have trafficked them. Victims need reassurance that they will be well catered to. As the noble Lord, Lord McColl, says, this should be spelt out in the Bill. I agree with him—I thought he made one of the most powerful speeches in this debate.

There are lots of good things in the Bill. I welcome the special measures extension to trafficked victims: that they should be able to give their evidence via video and avoid all contact with those they accuse. However, I am very concerned about the problems in securing the welfare of victims while they are waiting, before there can be any prosecutions. They need support, housing and legal aid for many other matters they have to deal with. I would like to see special arrangements. I welcome the suggestion by the right reverend Prelate that there should be some privileging of the position of those who have been trafficked.

In the months before a case comes to trial many witnesses are traduced by their traffickers—they are found. It is amazing how it happens, but they can often be traced. Family members of the trafficked person are prevailed upon to seek to induce them to take their evidence away. We have to find ways of providing the right kind of support before a matter comes to trial. I have had evidence from women of the ways in which, even in the aftermath of trials, they have had pressure put on them or threats made to their lives.

I, too, would like to see a greater synergy with Northern Ireland and what is being drafted in Scotland. I think it right that we have been ousted by Northern Ireland’s progressiveness on this. As I understand it, in Scotland, too, the First Minister, Nicola Sturgeon, is giving this priority and will shortly be announcing the Bill that will be going through the Scottish Parliament. Again, there should be much greater coherence among the different parts of the United Kingdom.

I agree with other noble Lords about the need to strengthen the powers, scope and remit of the Independent Anti-slavery Commissioner, which really are not framed well enough at the moment. I also agree with others in being somewhat disappointed that the noble and learned Baroness, Lady Butler-Sloss, who is such an authority on issues to do with abuse, children and so forth, is too accepting of what arrangements are in the Bill, which could be greatly strengthened. When the Joint Committee on Human Rights reported on this, it made some very sensible suggestions.

On children, I agree with the criticisms made by other noble Lords. We should have a special offence in relation to the exploitation of children—and, as a lawyer, that is not to deny the problems that there are in defining exploitation. That will not be easy but we have to take a crack at it. I would like to see greater powers and independence in the role of the child advocate, in the way that was described by the noble Lord, Lord McColl.

On the Gangmasters Licensing Authority, I, too, want to see an expansion of its powers. When I took testimony from it, I was greatly impressed by the work that it was doing. It really is one of the keys to improving the working conditions of exploited labour and I emphasise some of the points raised about how important it is.

On supply chains, very quickly, when the Rana Plaza collapsed in Bangladesh, 200 companies in the clothing retail sector got together with their competitors to say that there had to be inspectorates, support for health and safety audits and so on. Corporates are engaging with human rights issues, which matter to their brands. The UN has produced some principles, which are called the Ruggie principles after the professor of law at Harvard who put them together with help from places such as Oxford University, where I am based. We put together a set of principles to which the corporates are now signing up. I support what my noble friend and namesake Lady Kennedy said about the importance of this part of the Bill and how it can be strengthened.

There are many entrenched and vested interests in all this, some of which might to be do with businesses that are not so highly ambitious as some of the corporates. However, men and patriarchy have to be addressed, too. The idea that there is an entitlement to sexual servicing is one of the problems in all this. Men could play a vital role in ending the kind of sexual exploitation which I have seen trafficked women experience. I urge all noble Lords to try to get the Bill to a better place. It is highly important as its subject is serious human rights abuse.

Data Retention and Investigatory Powers Bill

Baroness Kennedy of Shaws Excerpts

Thursday 17th July 2014 Lords Chamber

[Lord Paddick]

My Lords, I want to say just two things. The majority view of this House yesterday at Second Reading was dissatisfaction with the lack of time for public consultation and parliamentary scrutiny of this legislation, not dissatisfaction with the sunset clause. The last thing we need to do is to recreate that problem by not allowing enough time for public consultation and parliamentary scrutiny of the whole area of RIPA and the associated legislation.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support the amendment to have the timetable brought forward because two and a half years is a very long time. While I want to put to one side ideas of conspiracy theories, I do think that there is a hope that somehow the current high level of interest in this will dissipate and that the usual British torpor about what happens with the security services will settle itself back on to our society and we will become unquestioning again. This is about kicking it into the long grass; this is really about postponing it for as long as possible because by that time people will have forgotten the disclosures that we recently had through Snowden and others. We should be concerned to ensure that we act while people are interested and concerned about these issues because they are pressing and very important to a vital and vibrant democracy.

It is important that we have proper scrutiny of the activities that are done in our name at whatever level in our society, and we have to have proper controls. What I am concerned about is when I hear about the setting up of Joint Committees and so on because we always know that the people who are put on to such Joint Committees are hand-picked. There was a period in my life where I remember this happening with the vetting of juries. They are hand-picked to be people who are already very much on the side of protecting the security services.

The security services are vital to the interests of our nation but they need to be questioned. They need to be questioned with some scepticism at times and I am not sure that we get that when people become comfortable in the security committees, as we have seen, and scrutiny is not of the level that it should be. So if we are going to set up these committees and so on, I hope we will see on them the noble Baroness, Lady Kidron, the noble Lord, Lord Hodgson, and some of the people who have been niggling at these issues and asking the questions that were not asked about rendition and so on. There was a complacency in this House and elsewhere about some of the things that happened, which we should have been much more scrupulous about. I hope that when we come to set up committees we will see a greater variety of presences than the ones we have seen until now.

I do not think that two and a half years is the right period of time; 18 months would be perfectly satisfactory and I urge that we look to a shorter period because it concentrates minds while minds are concentrated on this issue.

Data Retention and Investigatory Powers Bill

Baroness Kennedy of Shaws Excerpts

Wednesday 16th July 2014 Lords Chamber

[Baroness Kennedy of The Shaws (Lab)]

My Lords, like the noble Lord, Lord Hodgson, I have some problems with the Bill. It is utterly wrong that the Bill is being introduced as emergency legislation. Others may be quite sanguine about that but I am not. It has involved drawing down this expedited procedure when no emergency need has existed at all as there was plenty of time in the past three months to have dealt with this expeditiously. That is a serious abuse of Parliament. The use of emergency procedure to enact laws that are controversial and have a significant impact on individual rights is happening too often. This is not the first time it has happened and it is the sort of rubber-stamping that makes for careless law.

It is my concern that the Bill is seeking to provide a lawful basis for the unlawful exercise of power by the UK security agencies. I say that because the Snowden disclosures showed that in fact there was a sharing of information by GCHQ with the American security services. They were looking into metadata in ways that none of us knew about and which were certainly not covered by RIPA. It meant that the security services were involved in activities that were not covered by law. It is right that there should be new legislation but this is not the way to do it. It is deeply regrettable that we are having a bite at it in this way.

I am concerned that the excuse being made is that companies would have rushed out and somehow destroyed material in response to the judgment of the European Court of Justice. However, the Government were involved in deep and amicable consultations with provider companies. Indeed, their involvement in those consultations was given as the reason for the delay. Provider companies want to co-operate with the Government. It is in their interests that they have the support of government for many of their activities. I do not believe for a minute that undertakings could not have been given that there would be no rush to destroy material in the knowledge that legislation was in the pipeline.

Although it is generally accepted that RIPA is not fit for purpose—as the noble Lord, Lord Macdonald, said, it was enacted when the internet was in its infancy and no one anticipated that technological changes would enable government agencies to obtain enormous quantities of data on the personal activities and lives of individuals—I do not think it is right to embark on legal reform without full and well informed debate. The noble Lord, Lord King, is right. There is still inadequate understanding by the public of what this legislation will mean, but it is no wonder when there is not proper parliamentary debate and public discussion about giving the state intrusive powers about which they should be concerned. Information is not being given to the public.

When all three main parties agree to a piece of legislation behind the arras, the smell of rat regularly permeates Parliament and it is usually a signal that something else is up. The claim is made that this legislation merely maintains the status quo until a sunset clause expires in December 2016. How does the status quo comply with the ruling of the European Court of Justice that the UK’s data retention directive was contrary to law? And why is the sun setting so far in the distance?

I understand that the main political parties do not want accusations being made of being soft on terrorism and do not want finger-pointing. That is why this is being dealt with in this way. That is the truth and the reality of why we are rushing the Bill through Parliament now. It is a sad reflection on the quality of debate about terrorism that there is so much finger-pointing. We live with the fear that we would be blamed if a particular party were to say, “Hold on a minute”.

Legal experts in this field are clear that the Bill now being rushed through Parliament does not even try to comply with the ECJ judgment. Furthermore, DRIP does far more than replace the data retention regulations. It makes substantive changes to the interception warrants, interception capability and communications data access provisions of RIPA. We should always remember that it is the practice of those who draft legislation about the functions of the security services to make it as complex and impenetrable as possible, and that is what this legislation is—obscurantist lawmaking at its height. It is very difficult to fathom what is going on here. One of the tricks is to mix definitions. If Europe uses one set of definitions, we will find that the drafters of legislation here invent their own. If an old law exists, drafters choose to create new language but at times slip into old legislative usage just to confuse.

What we are definitely seeing here is a broadening of RIPA definitions. It is also important to know that words such as “facilitating” flag up to any lawyer that we are moving into “broad interpretation” territory. On 13 July the Sunday Times reported the Home Office as saying:

“The bill clarifies how the current definition should be interpreted, but this cannot change or extend the meaning of the definition in RIPA to capture new services”.

The lawyer Graham Smith says that this is “twaddle”, while the Explanatory Notes attached to the Bill say explicitly that it is intended that webmail and other internet-based services should be caught. There is a suspicion among many experts in the field that something else is going on here and that a significant change is being made without properly explaining the purpose behind it. That should be a matter of concern to this House.

The Minister tells us that it is important to be able to access communication data that can help to place a person in a certain vicinity at a particular time through their phone records. I agree with those who have spoken, who are criminal lawyers like myself, or who have been involved in very serious cases, that there is no doubt that it is invaluable to be able to access this kind of material. In my view, it is right that there should be the retention of data and interception, but with proper warrants and proper controls.

We should all recognise that our phones and other technological equipment are enormously revealing about our movements, activities, associations and interests, and that crime warrants are sought for this kind of material. However, we have to recognise that the disclosures of Snowden showed that we are regularly seeing programs such as Trojan or backdoor programs enter into our material without, one suspects, those kinds of warrants being obtained. Similarly, clouds can be accessed and captured so that they can be used for intelligence purposes without proper procedures being applied. If that were to be the case, we should know about it, and we should be insisting on proper controls. There is no doubt that there are important issues here requiring primary legislation, but they should not be subject to rushed law and they certainly need proper debate.

There is another matter of concern. It was announced in the past few days that there will be a privacy and civil liberties board, which will have four members. That may be very welcome but it will replace David Anderson, the independent reviewer of terrorism legislation. Will the new board have the same access to sensitive intelligence? I am glad that the noble Lord, Lord Carlile, is in his place and will be speaking shortly. The argument was always made that having just one trusted individual made that office effective and watertight. I would be interested to know whether it will be the same with the new board.

Secrecy is required for certain aspects of state function, but too often secrecy is overclaimed. It can be a cover for abuse, which is what we are seeking to prevent. That is why safeguards are essential and it is why Parliament has such an important role. The procedures that we are discussing today should have had the opportunity for much greater scrutiny. Civil liberties have to be protected and they require constant vigilance. They are eroded usually by creep, in small slices at a time, and we have to be the guardians of civil liberties and our constitution as well as our security.

Immigration Bill

Baroness Kennedy of Shaws Excerpts

Monday 12th May 2014 Lords Chamber

[Lord Hope of Craighead]

My Lords, I will add a footnote to the points made by the noble Lord, Lord Pannick, and my noble and learned friend Lord Brown of Eaton-under-Heywood. I join them in welcoming Amendment 18A and Amendment 18B, which falls to be read together with it. Two questions lie behind one’s examination of Amendment 18A. The first concerns the point mentioned by the Minister once, if not twice. Is the wording of the provision compatible with our international obligations? The second concerns how the provision will work in practice. This will be the subject of the reviews referred to in Amendment 18B.

On the first point, the Minister said—I think twice, possibly more often—that the wording of the provision is deliberately narrow. He said it was narrowly worded and precisely targeted; it had to be narrowly worded and precisely targeted to meet the requirements of the convention. The international obligations are found in the European convention on nationality of 1997. It is worth reminding ourselves that the preamble says that it is concerned to avoid cases of statelessness “as far as possible”. The principles set out in Article 4 include that,

“everyone has the right to a nationality … statelessness shall be avoided”,

and,

“no one shall be arbitrarily deprived of his or her nationality”.

I think it is well known that Section 40 of the British Nationality Act 1981, as substituted by the Nationality, Immigration and Asylum Act 2002, was framed with very close regard to the provisions of that convention. One can see it, too, in the amendments introduced by the Bill. The second condition set out in new Section 40(4A) refers to the situation where,

“the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom”.

The phrase “the vital interests” is a precise quotation from Article 7(1)(d) of the convention and one can see how closely tied the wording of the statute is to that of the convention. It is important that the wording should be narrowly framed in order to meet what the preamble and Article 4 were talking about, but that has another significance when one looks at how the wording will work in practice. It is well known that the courts will construe legislation on the assumption that Parliament has intended to legislate in accordance with this country’s international obligations. One would expect a court to have regard to the wording of the convention and to construe the words narrowly. They are narrowly worded but they will be narrowly construed, too. The key words already identified are “is able”. It is not “maybe” or a possibility; it is “is”, in the present tense. “Able” is itself a powerful word, and the new Section refers to being able to become a national of a country, not to an ability to apply or be considered.

One other point is worth mentioning to appreciate the full package with which this House has been presented. Section 40of the British Nationality Act, as amended, describes the obligation of the Secretary of State in the event of an order being made under that section. It states:

“Before making an order under this section in respect of a person the Secretary of State must give the person written notice specifying … that the Secretary of State has decided to make and order”—

this is really important—

“the reasons for the order, and … the… right of appeal”.

These things must be set out in the written statement. Particularly important is the reference to reasons, which will be examined with great care should the matter go to appeal.

There is just one point that is worth bearing in mind: the reference to rights of appeal. Concern has been expressed by Liberty, and perhaps others, about the situation in which somebody would find themselves when faced with a written statement of this kind when abroad and the prospect of an order of this kind being made against them. It would seem to require exercising the right of appeal from abroad. That is a practical problem which those individuals might face.

My concern is whether the review referred to in Amendment 18B would be capable of picking up practical issues of that kind. It is difficult for us at this stage and in these situations to forecast the future with any precision, but that is the kind of practical point—envisaging how the issue will be worked out in practice—that will require very careful consideration. The more disadvantaged somebody would be by having to exercise his right of appeal abroad, the more concerned one would be about the fairness of the provision and, indeed, its compatibility with the convention. When the Minister replies, will he be good enough to cover that point about the scope of the review and whether it would include the kind of practical problem to which I have just referred?

[Baroness Kennedy of The Shaws (Lab)]

I have concerns about the shift by the Government, although I welcome that there has been a shift in the way that has already been described. My concern is that reasonable grounds to believe that a person may be able to acquire another nationality does not really deal with the difficulty we face in the circumstances in which these cases arise. The cases that have taken place so far in which people have had their citizenship removed have almost invariably—certainly in my experience—involved persons abroad. The reason given is that the person is a threat to national security. I raise this question, among those already raised by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope: would another country seriously consider giving nationality, even to someone who might have the ability to apply for nationality of that country, if it knew that British citizenship had been removed on the grounds that the person was believed to be in some way linked to, or to condone, international terrorism? Do we seriously believe that another state is likely to grant nationality to someone where that has been the basis for the removal of citizenship by Britain? My grandparents were Irish, and I am sure that I am entitled to apply for an Irish passport, although I have never done so, but would Ireland seriously be interested in acquiring a citizen who has already been deemed by Britain to be involved in supporting, condoning or in some way furthering terrorism? We have to be real about the circumstances that we are contemplating.

I want to add a number of questions to the ones that have already been asked.

[Lord Quirk (CB)]

Does the noble Baroness not note that there is a difference between the case she mentioned—of someone who would almost certainly be refused citizenship by the putative country—and the wording here, which is, “able to become”, not, as the noble Lord, Lord Pannick, stressed, “able to apply”? Therefore, the premise is that the Secretary of State had already considered the point that the noble Baroness made and that she was convinced that were the person concerned to say, “I wish to be”, he or she would become a citizen of the said country.

[Baroness Kennedy of The Shaws]

There can be all manner of speculation about whether, if someone was born in, for example, Somalia but left at the age of three, Somalia might afford citizenship to them. Would Somalia give them citizenship in such circumstances if Britain had removed citizenship on the basis that they were a threat to national security here? Would Pakistan? Would Syria? Would Egypt? The test of reasonable grounds for believing that the person would be able to acquire another nationality does not answer that question. What if they cannot do so? That is the question that my noble friend Lady Smith raised, and at the moment it has not been answered satisfactorily. I wait with interest to hear what the Minister says.

There is a second matter: what constitutes service? It ties in with the point raised by the noble and learned Lord, Lord Hope. What constitutes service when somebody is abroad? Is it good enough to serve notice on relatives living in Britain? Why should it be assumed that they would be able to inform adequately a person who is living somewhere else that they have had their citizenship removed? I would be very interested to hear the Minister’s response to what constitutes service. If someone is in a place such as Syria or Somalia, what is the likelihood of being able to serve notice—in the way that we understand service normally in law—on somebody in a war-torn area or a place where there is chaos and little in the way of government as we understand it?

What do we do about the issue of appeal, which was just mentioned by the noble and learned Lord, Lord Hope? At the moment, the normal period for appeal in the rules of citizenship is 28 days, and nothing suggests that that would change. Is someone in Somalia expected to be able to appeal within 28 days, not having been in receipt of service but having been informed days before, over a very poor telephone line, that they have the right of appeal but time is about to run out? What is the answer to the question of the appeal period?

If a person is unable to acquire another citizenship, will the withdrawal of citizenship then be negated? Will it fall away, and will the person then reacquire their British citizenship? Are we giving that as a guarantee? Will we see reinstatement if no other state is prepared to follow through?

I ask those who are international lawyers, or international lawyers advising the Government: when someone has a right to citizenship, is there not always a level of discretion in a state to say, “Yes, you are entitled because you were born here, but then you went away and you became a British citizen, but we are not going to allow you to apply and become a citizen of this country now because we believe that there is intelligence of your conducting yourself in a way that might be inimical to our national interests”? The question is much more complicated than is being suggested by the way in which the Government are seeking to appease us at this moment. That is why those of us who were concerned about this issue wanted there to be a much more considered review before the law was changed. I fall in line with others: I should like very clear answers to some of the questions raised by the noble Lords, Lord Pannick and Lord Macdonald, and by the noble and learned Lord, Lord Hope, and to the questions that I have raised, before I would be satisfied that the movement by the Government has been far enough.

This is an issue of high moral import. This is an issue that affects not only us here, but which will be looked at around the world. There will be implications for people in other parts of the world, too. I ask the Government to take great care over the answers that are given because, as we have heard from others, courts will deal with applications, appeals and reviews based on some of the answers given today.

[Baroness Hamwee]

My Lords, noble Lords will be glad to know that I will be as energetic as I can in editing my remarks to exclude questions which have already been asked. However, I retain some points and concerns on the amendments, including on the principle.

Questions have been asked about what is meant by being “able”, and also about the practicalities of the matter. The Minister in the Commons said: “I am sure that”, the Secretary of State,

“would … have to consider practical issues and the other surrounding circumstances … She will, therefore, wish to consider those other practical or logistical arrangements as part of her determination”.—[Official Report, Commons, 7/5/14; col. 193].

Can my noble friend give the House assurances as to how all that will actually be reflected in statute or, if not in statute, then in guidelines? I mention here the guidelines published by the UNHCR on statelessness, which specifically refer to the application of nationality laws in practice being,

“a mixed question of fact and law”.

On the right of appeal, the noble Lord, Lord Pannick, has said that he trusts that there will be an assurance that the issues will be dealt with as open evidence. I add to that, while having the same hope, that if there are aspects which cannot be dealt with openly, will the provisions—I do not much like them, but they are what we have got—on gisting and special advocates apply? I have seen some doubt as to whether that would be the case.

On the amendment for review, I am glad that the Government have tabled this, as I did both in Committee and on Report. However, I stressed then the importance of independence. That term is missing from the Government’s amendment. Perhaps I can put it this way to my noble friend: can he confirm unequivocally that the review will not be in the hands of somebody who is within the Home Office?

Like others, I would welcome this being a matter for the independent reviewer of terrorism legislation. Concern has been expressed about resources, but whoever does the job is going to need the resources to do the job. I, too, have a question about why, after the first year, it should be triennial. If we are dealing with small numbers, then the job should be correspondingly small. I also ask the Minister to give us an assurance that the Government will support the reviewer undertaking more frequent reviews if he considers that they should be undertaken.

In debate, we have barely touched on the impact on communities of whom an individual in question is a member. I would support the appointment of the independent reviewer of terrorism legislation, because that postholder deals with people who are in rather connected situations where other measures might be applicable—and, indeed, might apply if deprivation is not to be used. It is clear that there is a danger that the use of the state’s powers, which focus on neutralising—if that is the word—the individual without considering the negative effect on the community, is an issue, as well as the specifics for the individual and their family. I am sure that the independent reviewer would focus on that as well.

Immigration Bill

Baroness Kennedy of Shaws Excerpts

Monday 7th April 2014 Lords Chamber

My Amendment 57B points in the opposite direction in requiring quarterly information. The legislation on terrorist asset-freezing and TPIMs contains specific requirements for quarterly reporting by the Government, as well as annual reporting by the independent reviewer. The Home Office quarterly asset-freezing reports, with details of all pending cases that are now included, keep Parliament and the public involved. One sees them in the periodic Written Statements published by the Government and they are a reassurance as to how the state’s powers are being used. All this is behind my two amendments.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I have made a number of speeches on this subject at different stages of the Bill and I do not want to take too much of the House’s time. I welcome the idea of an independent reviewer being involved, but I say to the Minister that it is not enough. As he will see, my name is on a number of the amendments that were referred to by my noble friend Lady Lister. I, too, am a member of the Joint Committee on Human Rights. The amendment tabled by the noble Lord, Lord Pannick, is really the course that I would urge this House to take.

The whole idea of making people stateless is unsupportable as a measure, but that fact does not place barriers in the way of the Government in their efforts to deal with terrorism. Terrorism is a serious threat nationally and internationally, and the Government must act in the interests of our safety. Opponents of this move, of whom I am one, are not objecting to removing citizenship from people who have two passports. If someone already has dual nationality—and not just the possibility of being able to get it from somewhere else because they have a father or grandfather who is of a different nationality—then on the right evidence and with due process there is no reason why citizenship cannot be removed from someone whose conduct has been shown to be a threat to our national security. The Supreme Court recently did precisely that in relation to a Pakistani-British family living mainly in Pakistan.

However, I want to remind this House why the idea of rendering someone stateless is so repugnant. After the horrors of the Second World War, the international community had the opportunity of reflecting on the whole notion of the Wandering Jew—as though “wandering” was a voluntary condition—and the idea of what it meant to have no secure home and of living with the mental torture of insecurity. The international community was conscious of the many other people forced to live lives of uncertainty—because it is a weapon used by tyrants and dictators—knowing that they could be ousted at any moment because of the instability of their status. We were all alert to how such persons lacked full rights if they were rendered stateless, and that was why the convention to end statelessness came into being. Britain was one of the countries at the forefront of such moves, which is why we have been a beacon in relation to this issue.

It is interesting that Germany, reviewing its own conduct in relation to statelessness after the Second World War, has made it part of its constitutional obligations that it will never remove citizenship once it is granted. The United States, too—which, of course, became a haven for those seeking sanctuary—never removes citizenship once it is granted and believes strongly that people should not be rendered stateless.

Of course, if you are not a citizen of anywhere, you cannot have the rights that citizenships confers on you—the very right to have rights, as has been mentioned already. The presumption should always be that if you commit crime you should be tried and jailed, and that there are steps that can be taken to deal with criminality and behaviour that is a threat to states. But there is also a presumption that if something happens to you abroad you can insist on contact being made with your embassy or consulate so that your rights can be asserted. It is not just about providing protection, it is about seeking to make everyone subject to the rule of law—the thing that Britain is renowned for. The presumption should always be that law is involved in these processes.

I have repeatedly told the story of Mahdi Hashi, who had his citizenship removed while in Somalia. Two other persons from whom Britain had removed citizenship were droned—killed by the use of drones—in Somalia. We should reflect on that; it was evidence given to the Joint Committee on Human Rights by the UN rapporteur on counterterrorism only a week or so ago. Mahdi Hashi was advised through his parents of having lost his citizenship and that he had a month to appeal. Somalia has no British embassy. He travelled to Djibouti, where he was picked up by the secret police. On saying that he was British, he was told that inquiries had been made and that Britain was denying any obligations towards him. We washed our hands of him—Pontius Pilate lives on.

Mahdi Hashi was interrogated at length—no lawyers, no court processes. He was then handed over to the CIA and further interrogated—no lawyers, no court processes. He had a hood put on his head and was transported to the United States of America—no extradition processes. This was essentially another rendition. But Britain can now claim that we were not complicit because he was not our citizen. Is that the purpose of this change of law, that we might be able to do things that make people vulnerable and deny them their rights, creating yet more black holes where no law obtains but where we cannot be accused of complicity?

We in Britain have always claimed our commitment to the rule of law; indeed, we like to think of ourselves as having parented its existence. You might ask: is this man, who is now sitting in a jail in New York, a bad guy? I cannot tell you. No evidence is in the public domain. But it matters not whether he is a bad guy—that is the important thing to have in mind. We are supposed to believe in due process, the rule of law and international human rights. By making him stateless, we stripped him of the safeguards that any human being should expect. That is not how we normally behave. That is not an acceptable way for a civilised nation to behave.

This is an issue of profound principle and much more care needs to be taken than we currently see in considering the implications of this in terms of what message we are sending to the world, what the position is with regard to international law, what it means to make someone stateless, and what other states, where such persons end up, might feel about our having made such persons stateless. All those matters should persuade us that there should be a committee set up and that this needs much further reflection, because there are principles involved that should be seriously considered by us all because it matters about the nation that we live in.

[Lord Lester of Herne Hill]

My Lords, I was not able to speak in Committee but, briefly, I will make a point that I think has not yet been made.

My noble friend the Minister reminded us, rightly, of the fundamental importance of national security and of combating the evil of terrorism by all effective means. I do not think that I needed to be reminded of that but he was right to remind us all the same. Equally, the noble and learned Lord, Lord Brown, reminded us of another fundamental matter, which is the parliamentary scrutiny of draconian powers before they enter the statute book.

If I were persuaded, as the Minister has suggested, that this debate and previous debates are adequate as a substitute for effective pre-legislative scrutiny, I would not support the noble Lord, Lord Pannick, but I am not persuaded of that. The issues are extremely complicated and even though I think that I am some kind of international lawyer, I am certainly not going to analyse what Professor Guy Goodwin-Gill has said, even though I agree with him, or bore the House, as lawyers frequently could do, by going into a lot of technical detail.

What I want to do, and which gives rise to a question, is to deal with a point that the Joint Committee on Human Rights, of which I am a member, raised in our report and the way that the Government responded to it. In our report, we drew attention to the relevance of the European Convention on Human Rights and its various provisions, and we disagreed with the Government, whose position was that the European Convention on Human Rights had nothing to do with the issue. We went into the matter in paragraphs 45 and 46 of our report. In footnote 25 we referred to a case in which I was counsel for the applicants in the great case of the east African Asians against the United Kingdom.

That was a case which involved not national security but racism. It was a case where, to their shame, the then Labour Government persuaded both Houses of Parliament in emergency debates over three days and nights to take away from 200,000 British Asians, who were citizens of the United Kingdom and colonies, their right to enter and live in their only country of citizenship. By doing that, Parliament made 200,000 British citizens de facto stateless, even though a promise had been given to them by the previous Conservative Government that if they did not become local African citizens, they would be given the right to settle in this country. That promise was broken because of an extremely effective racist campaign mounted by Enoch Powell and Duncan Sandys, which led the Labour Government, with the support of both Houses, to pass that obnoxious legislation.

When we challenged that successfully before the European Commission of Human Rights, we relied upon two American cases. One was called Trop v Dulles. That was a case where under United States law somebody had been deprived of his American citizenship by Mr Dulles. The US Supreme Court said that under the American constitution, that was impermissible. The European Commission of Human Rights was impressed by that and it held that our Parliament had subjected British citizens to treatment that was racist and degrading.